THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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KlCLNi;    WAMKAliill,    1. 1. P., 
pHoressoK  or  law   la   habtabo   vMiTBBtiTT 


CAMBRIDGE 
HARVARD  UNIVERSITY  PRESS 


T 

Copyright,  1896, 
Bt  Eugene  Wambaugh. 


i. 


ri;  i;i  ACE. 


In  selectini^  and  arranj^itig  these  ca>L'S,  the  purpose  has 
been  to  furnish  material  fur  the  »tuily  of  the  principal 
topics  of  Agency,  including  some  topics  frequently  classed 
under  the  head  of  Master  and  Servant.  As  far  as  practi- 
cahle,  use  has  been  made  of  those  famous  cases  with  whicli 
it  is  peculiarly  important  that  the  student  should  become 
acquainted.  The  order  of  the  chapters  and  of  the  sections 
has  been  determined,  not  by  the  vie^vs  of  analyticiil  jurists 
or  of  codiliers,  but  by  tiie  sup|>osed  convenience  of  stu- 
dents ;  and  consequently  the  plan  has  been  to  place  in  close 
juxtaposition  topics  that  throNv  light  upon  one  another, 
and  to  present  the  easiest  and  the  most  fundamental  topics 
as  early  as  possible.  The  cases  as  to  each  topic  have  been 
arranged  chronologically.  The  statements  by  the  report- 
ers, and  the  opinions  of  the  judges,  have  been  reprinted 
in  full,  with  exceptions  indicated  in  the  foot-notes;  but 
the  arguments  of  counsel  have  usually  been  omitted. 
The  citations  in  the  foot-notes  have  been  intended  to 
include  only  such  cases  as  may  profitably  be  examined 
by  students. 

Thanks  are  due  to  Professor  "William  A.  Keener,  of  the 
Columbia  Law  School,  and  Professor  Jeremiah  Smith,  of 
the  Harvard  Law  School,  for  cordial  permission  to  use  lists 
of  cases  prepared  by  them.     It  is  matter  of  regret  that  it 


671018 


IV  PREFACE. 

is  impossible  to  acknowledge,  otherwise  than  in  the  most 
general  terms,  indebtedness  to  the  very  numerous  other 
workers  —  counsel,  judges,  reporters,  digesters,  text-writers 
—  from  whose  labors,  covering  several  centuries,  the  com- 
piler has  derived  aid  at  every  step. 

EUGENE  WAMBAUGH. 
Afbil  23,  isdaw 


TABLE   OF   SUBJECTS. 


Sectiox 
Section 


I. 

II. 


Section  III. 


Section  IV. 
Section     V. 


CHAPTER   I. 

INTRODUCTORY  TOPICS. 

PAQB 

Qui  facit  per  alium  facit  per  se i 

Who  can  be  an  Agent. 

(A)  General  Principles 2 

(B)  Infancy 7 

(C)  Coverture 9 

(Z))  The  Statute  of  Frauds .  10 

Who  can  be  a  Principal. 

(A)  General  Principles 15 

(B)  Infancy 17 

(C)  Coverture 23 

What  Acts  can  be  done  through  an  Agent    .     .  33 
How  AN  Agent  is  Appointed. 

(A)  General  Principles 42 

(5)    Appointment    to    execute    an    Instrument 

within  the  Statute  of  Frauds  ....  52 

(C)  Appointment  to  execute  a  Specialty      .     .  58 


CHAPTER   II. 

THE  AGENT'S  POWER  TO  SUBJECT  HIS  PRINCIPAL  TO  LIABILITIES. 

Section      I.     The  Rise  of  the  Doctrine 79 

Section    II.     Torts 95 

Section  III.     Contracts 253 

Section  IV.  Misrepresentation,   Fraud,   and    kindred    Topics 

COMMON  to  Torts  and  Contracts 358 

Section     V.     Crimes 429 

Section   VI.     Admissions 447 

CHAPTER   III. 
THE   AGENT'S  RESPONSIBILITY  TO   STRANGERS. 


Section     I.    Torts 4fi9 

Section    II.     Unauthorized  Contracts 494 

Skction  m.     Authorized  Contracts  for  a  disclosed  Principal     525 


V^l 


TABLE  OF  SUBJECTS. 


Section  I. 
Section  II. 
Section  III. 


CHAPTER   IV. 

PARTIES  TO  WRITINGS. 

Instruments  neither  Negotiable  nor  Sealed 

Sealed  Instruments      

Negotiable  Instruments 


rAOB 

548 
583 
601 


CHAPTER  V. 
UNDISCLOSED  PRINCIPAL. 

Section      I.     Whether    the    Principal    can    hold    the    Third 

Party 627 

Section    II.     Whether   the   Third   Party  can  hold  the  Prin- 
cipal        636 

Section  III.     Whether  the  Third  Party  can  hold  the  Agent     658 

Section  IV.     Whether  the  Agent  can  hold  the  Third  Party     664 

Section    V.    Defences. 

(A)  In   an   Action   brought   by   the    Principal 

against  the  Third  Party 673 

(i>)    In  an  Action  brought  by  the  Third  Party 

AGAINST    the    PRINCIPAL 692 

(C)  In  an  Action  brought  by  the  Third  Party 

AGAINST    THE    AgENT 723 

(D)  In  an  Action  brought  by  the  Agent  against 

THE  Third  Party 729 


CHAPTER  VI. 

THE   PRINCIPAL'S  DUTIES  TO  THE  AGENT. 

Section      I.     Reimbursement  or  Indemnity 741 

Section    II.     Responsibility  for  Injuries. 

(A)  The  Fellow-Servant  Rule 773 

{B)  Suitable  Appliances,  Agents,  Premises, 
AND  Regulations.  And  herein  of  the 
Vice-Principal  Doctrine 824 


CHAPTER   VII. 

THE  AGENT'S  DUTIES  TO  THE   PRINCIPAL. 

Section      I.     Obedience,  Diligence,  and  Skill 882 

Section    II.     Loyalty 904 


TABLE    OF   SUBJECTS. 


Vll 


CHAPTER  VIII. 
DELEGATION  BY  AN  AGENT. 


Section      I.     The  Rule 

Section    II.     Exceptions,  real  or  apparent 


PAGE 

928 
935 


CHAPTER   IX. 

TERMINATION   OF   AGENCY. 

Section      I.     Modes  of  Termination. 

(^4)  Revocation 

(B)  Death 

(C)  Some  other  Modes  of  Termination 
Section    II.     Irrevocability 


953 
957 
962 
973 


CHAPTER   X. 

RATIPTCATION. 

Section      I.     Early  Authorities 986 

Section    II.     The  Requisites  of  Ratification 989 

Section  III.  The  Possibility  of  Ratification  as  affected  by 
the  Rights  of  Persons  other  than  the  Quasi- 
Principal      1034 

INDEX 1059 


TABLE   OF   CASES. 


[In  addition  to  the  cases  reprinted  in  the  text,  this  Table  includes  the  cases  quoted  ic 
the  foot-notes.] 


Abbey  v.  Chase 592,  n. 

Adanison  r.  Jarvis 754 

Addison  v.  Gandasequi 52"J 

Ahern  v.  Baker 'J12 

Alford  V.  Eglisfield 548 

Aldrich  v.  B.  &  W.  Railroad  Co.       .  202 

Allen  V.  Merchants'  Bank  ....  93tj 

Ancona  v.  Marks 1014 

Anderson  v.  Sanderson 450 

Anonymous  (15  East,  407)  .     .     .    279,  n. 

(Fitz.  Abt.,  Annuitie,  pi.  51)     .  1 

(Godbolt,  109,  pi.  129)     .     .     .  987 

(12  Mod.  514) 87 

(IStr.  527) 92 

(Y.  B.  7  H.  IV.  34)      ....  987 

V.  Harrison 953 

Armory  v.  Delamirie 92 

Armour  v.  Michigan  Central  Rail- 
road Co 418 

Armstrong  v.  Stokes 704 

Ashworth  v.  Stanwix 795 

Atkinson  v.  Cotesworth 729 

Attwood  V.  Munnings 286 

Audley  v.  Pollard 988 

Baines  v.  Ewing 334 

Baird  v.  Shipman 491 

Baldwin  v.  Potter 905,  n. 

Ballou  V.  Talbot 494 

Baltimore  &   Ohio   Railroad  Co.  v. 

Baugh 872 

Bank  of  New  York  v.  Bank  of  Ohio  606 
Barlow  *;.  Congregational  Society    .    609 

Barnard  v.  Coffin 934^  n. 

Barr  v.  Lapsley 42 

Bartholomew  v.  Dighton  ....  17 
Bartonshill  Coal  Co.  v.  Reid  .  .  793,  n. 
Barwick  v.  English  Joint  Stock  Bank    412 

Bateman  v.  Phillips 548 

Batty  V.  Cars  well 266 

Baxter  v.  Bnrfield 957 

Beaulieu  v.  Finglam 79 

Beckham  v.  Drake 647,  n. 

Bell  V.  Josselyn 478 

V.  McConnell 913 


Bennett  r.  Bayes 479 

Bentley  v.  Doggett 345 

Bibb  V.  Allen 768,  n. 

Biggs  V.  Evans 355 

Bird  V.  Boulter 12 

V.  Brown 1040 

Bhicknall  v.  Parish 62 

Blaikstone  v.  Buttermore    ....    983 

Bliss  V.  Sneatii 739 

Bodine  c.  Killeen 30 

Bolton  Partners  v.  Lambert     .     .     .  1053 

Booth  L-.  Mister 936 

Borcherling  v.  Katz 647 

Borries  v.  Imperial  Ottoman  Bank  .    678 

Boson  V.  Sandford 82 

Botteler  v.  Newport 18,  n. 

Boulton  V.  Arlsden 84 

Bowler  v.  O'Connell 248 

Bradstreet  r.  Baker 598 

Brady  v.  Todd 328 

Bray  v.  Kettell 559 

Bridges  v.  Savage 906,  n. 

Brinley  r.  Mann 593 

Britisli  Mutual  Banking  Co.  i'.  Cham- 
wood  Forest  Ry.  Co 425 

Brodeur  v.  Valley  Falls  Co.     .     .     .     820 

Brook  r.  Hook 1024 

Brookshire  r.  Brookshire     ....     953 

Brucker  v.  Fromont 95 

Burns  v.  Poulsom 214 

Bush  V.  Steinman 98 

Byington  v.  Simpson 582 

Calder  v.  Dobell 564 

Camden  Safe  Deposit  and  Trust  Co. 

V.  Abbott 349 

Campbell  v.  Reeves 933,  n. 

Carpenter  v.  Farnsworth     ....  618 

Caswell  V.  Cross 226 

Catlin  V.  Bell 929 

Chandler  v.  Coe 573 

Chapman  v.  N.  Y.  C.  Railroad  Co.  .  183 

Chase  v.  Debolt 660 

Chastain  )•.  Bowman 3 

Child  V.  Morley 741 


TABLE   OF   CASES. 


Chisholm  v.  Doulton 438,  n. 

City  Bank  v.  Barrow       ....    253,  n. 

Clarke  v.  Holmes 806 

Cleveland,  Columbus,  &  Cincinnati 
liailroad  Co.  v.  Keary      .     .     .    829,  n. 

Clifford  V.  Burton ,     .     451 

Clough  I'.  Clougli 68 

Cobb  V.  Knapp 726 

V.  Superior  Court 5 

Coben  v.  Kittell 902 

Collen  V.  Wriglit 506 

Combes'  Case 33 

Commercial  Bank  v.  Norton  .  .  .  939 
Commonwealtli  v.  Briant    ....     445 

V.  Gillespie 447,  n. 

V.  Morgan 439 

V.  Nichols 435 

V.  Wacbendorf 438,  n. 

Cooke  V.  Esiielby 687 

Corcoran  v.  Holbrook 857 

Cornfoot  v.  Fowke 358 

Cothay  v.  Fennell 628 

Covell  f.  Hart 545 

Craker  v.  C.  &  N.  W.  Ry.  Co.  .  165,  n. 
Cream  City  Glass  Co.  v.  Friedlander 

558,  n. 

Cribben  v.  Deal 74 

Crispin  v.  Babbitt .     859 

Culien  V.  Thomson's  Trustees  .  489,  n. 
Curtis  V.  Williamson       713 

D'Arcy  v.  Lyle 747 

Darling  v.  Stanwood 938,  n. 

Davenport  v.  Riley 659 

Davis  I'.  Hamlin 917 

Davison  r.  Donaldson     ....    720,  n. 

De  Bussche  i-.  Alt 934,  n. 

Delaney  v.  Rocbereau     ....    487,  n. 

Dempsey  v.  Chambers 1030 

Denny  v.  Manliattan  Company    .     .     473 

Dickerman  v.  Asliton 67 

Dodge  v.  Hopkins 1044 

Dorchester  &  Milton  Bank  v.  New 

England  Bank 942 

Dord  V.  Bonnaffee 1004 

Drew  V.  Nunn 967 

Duncan  v.  Beeson 760 

V.  Hill ^760 

Dynen  v.  Leach 833,  n. 

Edmunds  v.  Bushell 331 

Edwards  r.  Golding 686,  n. 

Elbinger  Actien-Gesellschaft  v.  Claye  542 
Eldridge  v.  Atlas  Steamship  Co.  .  868 
Ellis  V.  Sheffield  Gas  Consumers  Co.    148 

Emerson  v.  Blonden 9 

Emmerson  v.  Heelis 53 

Empire  State  Ins.  Co.  v.  American 

Central  Ins.  Co 917,  n. 

Evans  v.  Davidson 231 

V.  Evans 550 


Page 

Fairlie  v.  Fenton 561 

V.  Hastings 447 

P'arebrother  v.  Simmons     ....       11 
Farwell  v.  Boston  &  Worcester  Rail- 
road Corp 786 

Feltus  V.  Swan        489 

Fenn  v.  Harrison  (3  T.  R.  757)    .    .    254 
—  V.  Harrison  (4  T.  R.  177)      .     .     259 

Firbank  v.  Humphreys 517 

Fisher  v.  Cuthell 1084 

V.  Marsh 558,  n. 

Flike  V.  Boston  &  Albany  Railroad 

Co 853 

Ford  V.  Fitchburg  Railroad  Co.  .     .     850 

Forney  v.  Sliipp 723 

Foster  v.  Bates 1000 

Freeman  r.  Cooke 51,  n. 

V.  Rosher 1003,  n. 

Gadd  V.  Houghton 578 

Gannon  r.  Housatonic  Railroad  Co.  H03 

Gardner  v.  Baillie 260 

1-.  Davis 666 

V.  Gardner 61 

Garth  v.  Howard 452 

George  v.  Clagett 674 

Gibson  f.  Erie  Ry.  Co 841,  n. 

V.  Winter 730 

Gilshannon  v.  Stonv  Brook  Railroad 

Corp.     .     .     .    '. 794 

Grammar  i".  Nixon 93 

Grant  v.  Beard 1021 

V.  Norway 368 

Great  Western  Railway  Co.  v.  Willis  456 
Greenfield  Bank  r.  Crafts   .     .     .  1026,  n. 

Griggs  V.  Griggs 960 

Guerreiro  ?•.  Feile 282 

Gurratt  v.  CuUum 628,  n. 

Gwilliam  r.  Twist 951 

Hagedorn  i-.  Oliverson 1037 

Haluptzok  V.  Great  Northern  Ry.  Co.  947 

Hardy  v.  Waters 22 

Harper  i-.  Little 958 

Hatcli  V.  Taylor 291 

Hathaway  v.  Johnson 415 

Hawtayne  v.  Bourne 301 

Hazard  v.  Treadwell 253 

Heald  v.  Kenworthy 692 

Henchman  v.  Roberts 28 

Hern  v.  Nichols 90 

Hibblewhite  v.  McMorine   ....  58 

Higgins  V.  Senior 654 

Hill  1-.  Caverly 471 

V.  Morey 149 

Hobbit  V.  L.  &  N.  W.  Ry.  Co.      .    .  184 

Hogg  V.  Snaith 269 

Hopkins  v.  Mehaffy 590 

Hornby  v.  Lacy 675 

Horner  i'.  Lawrence 483 

Hough  I'.  Railway  Co 841,  n. 

Houston  &  Great  Northern  Railroad 

Co.  V.  Miller 81? 


TABLE    OF   CASES. 


XI 


Page 

Howard  v.  Baillie 261 

Howe  i\  Newmarch 18-1 

Howe  Macliine  Co.  v.  Clark    ...  462 

Humble  V.  Hunter 629 

Hunt  V.  Rousmanier 974 

Huntington  v.  Knox 634 

Hurst  V.  Holding 744 

Hutcliinson  i*.  Wheeler 725 

V.  York,   Newcastle,  &  Ber- 
wick Ry.  Co 828,  n. 

Hyde  v.  Johnson 37 


Illinois  Central  Railroad  Co.  v.  Latham  2o0 

Insurance  Co.  v.  Davis 962 

Irvine  v.  Watson 715 

Isberg  V.  Bowden 734 

Isham  V.  Burgett 656 

Jenkins  v.  Hutchinson 503 

Joel  V.  Morison       117 

Johnson  v.  Barber 475 

v.  Boston  Tow-boat  Co.  .     .     .  862 

V.  Dodge 56 

V.  Johnson 960 

Johnston  i'.  Kersliaw 896 

Jones  V.  Littledaie 552 

Joseph  V.  Knox 664 

Kayton  v.  Barnett 652 

Kelner  v.  Baxter 1016 

Kendall  v.  Hamilton 702,  n. 

Kindig  v.  Marcli 983 

Kingsley  v.  Davis 702 

Kirkpatrick  v.  Stainer 631 

Kirkstall  Brewery  Co.  v.  Furness 

Railway  Co 458 

Knapp  V.  Alvord 979 

Knaus  v.  Krueger  Brewing  Co.    .    917,  n. 
Kroeger  v.  Pitcairn 509 


Lane  v.  Cotton 468 

Lanlarazon's  Case 986 

Laugher  v.  Pointer 105 

Lawrence  v.  M'Arter 18 

V.  Shipman 210 

Leadbitter  v.  Farrow 602 

Lerned  r.  Johns 645 

Lewis  V.  Nicholson 504 

V.  Read 1001 

Liebsclier  v.  Kraus     ......  624 

Lilly  V  Smales 524 

Limpus  V.  London  General  Omnibus 

Co 170 

Little  Miami  Railroad  Co.  v.  Stevens  824 

Long  V.  Colbum 601 

Loomis  V.  N.  Y.,  N.  H.,  &  H.  Railroad 

Co 464 

V.  Simpson 931 

Lovell  V.  Howell 810 

Lnbv  V.  Hudson  River  Railroad  Co.  455 


Page 

Ludwig  v.  Gillespie 672 

Lux  V.  Shipman 210 

McGilvray  v.  West  End  St.  Ry.  Co.    251 

Mclntyre  v.  Park 993,  n. 

Maclean  v.  Dunn 993 

McManus  r.  Crickett 102 

Maitland  v.  Martin 762 

Marshall,  In  re 935 

Martin  ;•.  Great  Falls  Mfg.  Co.     .    .    288 

V.  Temperley 129 

May  V.  Bliss 1-38 

Meader  v.  Page 44 

Meehan  i\  Forrester 1003,  n. 

Meek  v.  Wendt 521 

Membery  v.  Great  Western  Ry.  Co.  871,  n. 

Merrill  v.  Kenyon 720 

Merryweather  v.  Moore 924 

Michael  v.  Alestree 82 

Michell  V.  Allestry 82,  n. 

Michil  V.  Alestree 82,  n. 

Middleton  v.  Fowler 86 

Miller  y.  Lea 691,  n. 

Milhken  v.  Coombs 990 

Mitchell  V.  CrasswuUer 144 

.Mohr  V.  Miesen 769 

Moir  V.  Hopkins 155 

Morier  v.  St.  P.,  M.,  &  M.  Ry.  Co.  .  238 
Morse  y.  Connecticut  River  Railroad 

Co 454 

Murphey  v.  Caralli 180 

Murray  v.  Currie 206 

V.   South  Carolina  Railroad 

Co 777 

Mussey  v.  Beecher 311 

Nelson  v.  Powell 092 

New  York  and  New  Haven  Railroad 

Co.  V.  Schuyler 387 

Nickson  v.  Brohan 90 

North  River  Bank  r.  Aymar   .     .     .  303 

Northwestern  Distilling  Co.  v.  Brant  596 


Opie  V.  Serrill 892 

Osborne  v.  Morgan 484 

Oulds  V.  Sansom 23 

Owen  V.  Gooch 525 

Packet  Company  v.  Clough     .    .    .  459 

V.  McCue 805 

Page  V.  Methfessel 47 

1-.  Webb 923 

Palliser  i;.  Ord 928 

Parker  v.  Brancker 887 

Paterson  v.  Gandasequi 527 

V.  Tash 253 

V.  Wallace 828,  n. 

Patten  v.  Rea 157 

Patterson  v.  Lippincott 514 

Peck  V.  Harriott 283 

Peele  v.  Hodgson 636 


xn 


TABLE   OF   CASES. 


Page 

Pentz  V.  Stanton 643 

People  V.  Koby 442 

Peto  V.  Hague 450 

Phelon  r.  Stiles 224 

Phelps  V.  Sullivan 72 

Philadelphia  &  Reading  Railroad  Co. 

V.  Derby 139 

Philadelphia,  Wilmington  &   Balti- 
more Railroad  Co.  v.  Cowell     .     .  1008 
Phosphate  of  Lime  Co.  v.  Green   1003,  n. 

Pickard  v.  Sears 51,  n. 

Pickering  v.  Busk 272 

Pike  V.  Ongley 662 

Pole  V.  Leask 51,  n. 

Polhill  V.  Walter 496 

Portuguese     Consolidated     Copper 

Mines,  I?i  re 1058,  n. 

Poulton  V.  L.  &  S.  W.  Ry.  Co.     .    .     191 

Price  V.  Taylor 604 

Priestley  v.  Fowler  773 

Priestly  v.  Fernie 698 

Quarman  v.  Burnett 125 

Quinlan  v.  Providence  Washington 
Ins.  Co 350 

Rabone  v.  Williams 673 

Railton  v.  Hodgson 636 

Railway  Co.  v.  Ranney  ....    829,  n. 

Rames  v.  Machin 18 

Rann  v.  Hughes 52,  n. 

Read  v.  Anderson 765 

Rechtscherd  v.  Accommodation  Bank  900 
Reedie  i'.  L.  &  N.  W.  Ry.  Co.      .     .     134 

Rex  V.  Almon 429 

».  Medley 432 

Reynell  v-  Lewis 51,  n. 

Rh'oades  i'.  Blackiston 736 

Right  d.  Fisher  v.  Cuthell   ....  1034 

Robertson  v.  Cloud 955 

Robinson  v.  MoUett 908 

Rogers  v.  Ludlow  Mfg.  Co.      •     .    866,  n. 

Roosevelt  v.  Doherty 681 

Rossiter  v.  Trafalgar  Life  Assurance 

Association 933,  n. 

Rounds  v.  D.,  L.  &  W.  Railroad  Co.  218 
Rourke  v.  White  Moss  Colliery  Co.      229 

Ruddiman  v.  Smith 237,  n. 

Rutland  &  Burlington  Railroad  Co. 

i\  Lincoln 1007 

Ryan  v.  C.  &  N.  W.  Ry.  Co.    .    .     .     800 


Sadler  v.  Henlock 152 

Schmaltz  v.  Avery 631 

Scott  V.  Surman 628,  n. 

Scrimshire  v.  Alderton 627 

Seiple  V.  Irwin 322 

Serle  de  Lanlarazon's  Case      .     .     .    986 

Seymour  i'.  Greenwood 166 

Short  V.  Spackman 667 

Simon  v.  Motives 658 

Sims  V.  Bond 666,  n. 


Page 

Singer  Mfg.  Co.  v.  Ralm     ....  240 

Skipp  V.  Eastern  Counties  Ry.  Co.  .  831 

Sleath  V.  Wilson 122 

Smith  V.  Cologan 989 

I'.  McGuire 324 

V.  Steele 808 

Smout  V.  Ilbery 499 

Staples  V.  Schmid 243 

Stead  V.  Thornton 15 

Stebbins  v.  Walker 684 

Stephens  v.  Badcock 929 

Stetson  V.  Patten 992 

Stevens  v.  Woodward 234 

Stewart  v.  Woodward 342 

Stinchfield  v.  Little 586 

Stone  V.  Cartwright 470 

Storey  v.  Ashton 204 

Strasser  r.  Conklin 1028 

Sturdivant  r.  Hull 619 

Sumner  v.  Conant 24 

Sutton,  Ex  parte 935 

Swainson  v.  North-Eastern  Ry.  Co.  813 

Switzer  v.  Connett 902,  n. 

Taft  V.  Brewster 585 

Tarrant  i'.  Webb 834 

Temple  r.  Pomroy 319 

Tenant  v.  Elliott 904 

Thompson  v.  Havelock 907 

Thomson  ;•.  Davenport 637 

Thorner.  Deas  .........  883 

Thorold  v.  Smith 88 

Toledo,  W.  &  W.  Ry.  Co.  v.  Harmon  198 

Trueman  v.  Loder 578,  n. 

Tucker  Mfg.  Co.  v.  Fairbanks     .     .  614 

Turberville  v.  Stampe 84 

Udell  V.  Atherton 374 

United  States  Telegraph  Co.  v.  Gil- 

dersleve 668 

Upton  V.  Suffolk  County  Mills     .    .  316 

Vose  V.  Dolan 65 

Wabash  Rv.  Co.  v.  McDaniels    .    867,  n. 

Walsh  I'.  Whitcomb 973 

Walter  v.  James 1049 

Waples  V.  Hastings 20 

Ward  V.  Evans 87 

V.  Smith 339 

Watkins  v.  Vince 7 

Watson  V.  King 979,  n. 

Watteau  r.  Fenwick 654 

Wayland's  Case 83 

Weber  r.  Weber 488 

Weed  V.  Panama  Railroad  Co.     .    .     162 
Weisbrod  v.  C.  &  N.  W.  Ry.  Co. .     .       28 

Weyland  v.  Elkins 104 

Whatman  r.  Pearson 196 

White  V.  Duggan 70 

V.  Sanders 1003 


TABLE   OF   CASES. 


XIU 


Page 
Whitehead  v.  Greetham      ....    885 

V.  Tuckett 277 

Whitfield  V.  Lord  Le  Despencer  .     .    469 
Whiting  V.   Massachusetts   Mut.  L. 

Ins.  Co 1051 

Wliitley  Partners,  In  re u'J 

Wiiittingharn's  Case 17 

Widrig  V.  Taggart 7 

Wilkinson  v.  Coverdale 882 

Wilks  V.  Back 583 

Williams  v.  North  China  Ins.  Co.  1040,  n. 

Williamson  r.  Barton 535 

Wilson  r.  Brett 890 

V.  Merry 842 

V.  Tumman 997 

V.  Wilson 902,  n. 

Wiltshire  v.  Sims 268 


Page 

Wolff  w.  Koppel 893 

Wood  V.  Cobb 190 

Woodley    v.   Metropolitan    District 

Ky.  Co 833,  n. 

Worthington  v.  Cowles 640 

Wright  V.  Dannah 10 

V.  Wilcox 118 


Y.  B.  30  E.  I.  126  . 
Y.  B.  2  H.  IV.  18  . 
Y.  B.  7  H.  IV.  34  . 
Y.  B.  21  H.  VI.  31 


Zouch  V.  Parsons 


.  79 
.  987 
18,  n. 


18,  n. 


CASES    ON   AGENCY. 


CHAPTER  I. 
INTRODUCTORY  TOPICS. 


SECTION   I. 


Quifacit  fer  aliumfacit  per  se. 


ANONYMOUS. 

Common  Pleas.     1304-5. 

[Fitzherbei-t's  Abridgment,  Annuitie,  pi.  51.] 

AiJOJTJiTY  against  the  heir  upon  a  deed  of  gi-ant  made  by  the  father 
antil  the  plaintiff^  was  advanced  bj'the  grantor  or  his  heirs  to  a  suitable 
benefice. 

Tilton.  After  the  death  of  our  father  our  mother  gave  to  the  plaintiff, 
by  our  procurement  and  to  discharge  us,  the  deanery  of  T.,  of  which 
the  plaintiff  is  still  seised. 

Herle.  The  writing  is,  until  he  be  advanced  "  by  the  grantor  or  his 
heirs,"  and  so  we  are  not,  &.Q. 

Hengham  [C.  J.].  Qui  per  alium  facit  per  se  ipsum  facere  videtur, 
and  have  care  that  he  answer  over. 

Herle.  The  mother  of  the  defendant  gave  us  the  benefice  for  our 
service,  and  not  in  discharge  of  the  annuit}'.     Read}'. 

And  the  other  side  said  the  contrary',  &c. 

1  Among  the  rules  appended  to  the  Sext,  promulgated  hy  Pope  Boniface  VIII.  in 
1298,  are  the  following:  "  lxvii.  Quod  alicui  suo  non  licet  nomine,  nee  alieno  lice- 
bit.  Lxviii.  Potest  quis  per  alium,  quod  potest  facere  per  se  ipsum.  .  .  .  lxxii. 
Qui  facit  per  alium,  est  perinde,  ac  si  faciat  per  se  ipsum."  Sexti  Decretalium,  lib.  v. 
tit.  xii.,  De  regulis  juris,  according  to  the  text  of  Friedberg's  edition  of  the  Corpus 
Juris  Canonici,  vol.  II.,  column  1124.  See  1  Pollock  &  Maitland's  History  of  English 
Law,  9.3,  196.  — Ed. 

-  Fitzherbert  says  defendant ;  but  that  appears  to  be  an  error.  —  Ed. 
'f-  1 


3  WHO    CAN   BE    AN   AGENT.  [CHAP.  L 

West's  Symboleography,  part  I.,  sec.  3,  Of  the  Fact  0/  3Ian  (1590) : 

Now  the  fact  of  that  person,  and  the  person  himselfe,  are  to  be 
considered.  The  fact  is  the  covenant  or  agreement,  or  the  offence, 
which  two  are  the  onely  way  making  obhgations. 

The  person  is  hee  which  either  agreeth  or  offendeth,  and  beside  him 
none  other. 

And  both  may  be  bound  either  mediatly  or  imraediatly. 

Immediatl}',  if  he  which  is  bound  do  agree. 

Mediatly,  wlien  if  he  which  by  nature  differeth  from  him,  but  not  by 
law,  whereby  as  by  some  bond  hee  is  fained  to  be  all  one  person,  doth 
contract  or  offend,  of  which  sort  in  some  cases  be  those  which  be  in  our 
power,  as  a  wife,  a  bondman,  a  servant,  a  factor,  an  Atturnej',  or  Pro- 
curator, exceeding  their  authoritie. 


SECTION   11. 

Who  can  he  an  Agent. 
(^)   General  Principles. 

Perkins'  Profitable  Book,  sees.  184-187  (1532)  :  — 

184.  All  such  persons  as  can  grant  for  themselves  maj'  make  livery 
of  seisin  for  themselves,  viz.  in  their  own  right,  and  as  servants  to 
others,  in  the  same  manner  and  form  as  they  may  grant,  &c.,  mutatis 
mutandis,  &c.  ,  .  . 

185.  And  as  to  such  persons  as  cannot  make  livery  of  seisin  in 
their  own  right,  but  ma^'  as  servants  to  others,  know,  that  a  monk, 
friar,  or  canon,  &c.,  professed,^  or  a  married  woman,  cannot  make 
livery  of  seisin  for  themselves,  viz.  in  their  own  right ;  and  if  they 
make  any  liver}-  of  seisin  in  their  own  right,  it  is  void ;  because  per- 
sons professed  in  religion  cannot  have  any  land  in  their  own  right, 
except  he  be  severed  from  the  same  house  of  religion,  &c. 

186.  And  although  a  married  woman  ma}'  be  seised  in  her  own 
right  with  her  husband,  j'et  livery  of  seisin  made  hy  her  alone,  without 
the  agreement  of  her  husband,  is  void  ;  insomuch  that  notwithstanding 
such  livery  of  seisin,  her  husband  and  she  may  have  an  assise,  if  he  be 
seised  of  the  freehold  in  her  right :  but  in  such  case,  if  the  husband  be 
seised  in  his  own  right,  then  notwithstanding  such  livery  of  seisin  made 
by  his  wife,  he  shall  have  an  assise  in  his  own  name,  &c. 

187.  But  if  a  monk  or  other  person  professed  in  religion,  or  a  feme 
covert,  make  livery  of  seisin  according  to  the  deed  of  a  person  able  to 
make  a  feoffment  in  his  own  right,  and  by  a  letter  of  attorney  made  to 

*  On  civil  death,  see  1  Pollock  and  Maitland's  History  of  English  Law,  4 16-4 "21. —  Ed. 


SECT.  II.]  CHASTAIN    V.    BOWMAN.  3 

him  or  her  bj'  the  same  feoffor  so  to  do,  then  such  feoffment  is  good ; 
because  the  feoffee  in  such  case  is  not  in  in  the  land  by  him  or  her  that 
made  the  livery  of  seisin,  but  by  the  feoffor.  .   .  . 

Coke  on  Littleton,  52  a  (1628)  :  — 

Few  persons  are  disabled  to  be  private  attorneyes  to  deliver  seisin  ; 
for  mounks,  infants,  fem  coverts,  persons  attainted,  outlawed,  excom- 
municated, villeins,  aliens,  &c.,  ma}-  be  attorneyes.  A  fem  may  be  an 
attorney  to  deliver  seisin  to  her  husband,  and  the  husband  to  the  wife, 
and  he  in  the  remainder  to  the  lessee  for  life. 

Coke  on  Littleton,  187  b  (1628) :  — 

Albeit  baron  and  feme  (as  Littleton  here  saith)  be  one  person  in 
law,  so  as  neither  of  them  can  give  an}-  estate  or  interest  to  the  other, 
yet  if  a  charter  of  feoffment  be  made  to  the  wife,  the  husband  as  attur- 
ne}'  to  the  feoffor  may  make  liverie  to  the  wife  ;  and  so  a  feme  covert, 
that  hath  power  to  sell  land  by  will,  ma}'  .sell  the  same  to  her  husband, 
because  they  are  but  instruments  for  others,  and  the  state  passeth  from 
the  feoffor  or  devisor. 


CHASTAIN  V.  BOWMAN. 

Court  of  Appeals  of  South  Carolina.     1833. 

[I  mil's  S.  Car.  Law,  210.] 

Tried  before  Mr.  Justice  Evans,  at  Abbeville  —  Spring  Term,  1833. 

This  was  an  action  on  the  case,  against  the  defendants  as  common 
carriers  on  the  Savannah  River,  for  a  loss  sustained  by  the  burning  of 
the  plaintiff's  cotton  on  board  their  boat.  The  boat  was  passing  down 
the  river  when  the  plaintiff  came  to  a  landing,  and  asked  if  it  could  carry 
his  cotton.  The  patroon  (a  slave  belonging  to  one  of  the  defendants) 
answered  that  it  could.  The  cotton  was  received,  and  was  burnt  on 
board  the  boat  before  it  reached  Augusta.  It  w-as  proved  that  the  de- 
fendants had  given  general  instructions  to  their  patroons  to  take  in 
freight  whenever  it  could  be  had,  and  that,  in  one  instance,  one  of  the 
defendants  had  received  pay  for  freight  engaged  by  his  patroon.  There 
was  also  some  evidence  to  show  the  general  custom  of  the  river.  Some 
witnesses  proved  that  it  is  the  custom  to  allow  patroons  to  take  in 
freight  generally,  and  others,  that  they  are  only  allowed  to  receive 
freight  when  a  boat  is  not  fully  laden. 

The  presiding  judge  charged  the  jury  that  the  defendants  were  not 
liable  unless  the  patroon  was  his  master's  agent,  and  authorized  to  take 
in  freight ;  that  the  authority  might  be  proved  by  showing  that  such 
was  the  custom  of  boat  owners,  or  by  proving  that  the  defendants  had 
given  such  authority  ;  that  to  establish  a  custom,  it  must  be  proved  to 
be  universal ;  that  a  slave  might  be  the  agent  of  his  master,  and,  if  his 
agency  was  established,  the  master  was  bound  ;  and  whether  the  agency 


4  CHASTAIN   V.    BOWMAN.  [CHAP.  I. 

of  the  slave  was  established  in  this  case,  was  a  question  submitted  to 
their  decision.  The  jury  found  for  the  plaintiff,  and  the  defendants 
appealed,  and  move  for  a  new  trial  on  the  ground  of  error  in  the  charge 
of  the  presiding  judge. 

Johnson,  J.,  delivered  the  opinion  of  the  court. 

From  the  instructions  given  to  the  jury,  it  is  more  than  probable  that 
they  found  tlie  verdict  on  the  ground  that  the  defendants  had  constituted 
their  patroon,  tlie  slave  Jaclc,  their  agent  to  contract  with  the  plaintiff 
for  carrying  his  cotton,  and  on  that  ground  it  can  be  well  sustained. 

It  is  not  questioned  that  a  master  may  constitute  his  slave  his  agent, 
and  I  cannot  conceive  of  any  distinction  between  the  circumstances 
which  constitute  a  slave  and  a  freeman  an  ogent,  —  they  are  both  the 
creatures  of  the  principal,  and  act  upon  his  authority.  There  is  no  con- 
dition, however  degraded,  which  deprives  one  of  the  right  to  act  as  a 
private  agent ;  the  master  is  liable  even  for  the  act  of  his  dog  done  in 
pursuance  of  his  command.  Two  witnesses.  Beck  and  Eaton,  prove  that 
defendants  had  given  general  instructions  to  their  patroons  to  procui'e 
freight  whenever  they  could,  and  in  one  instance  it  is  shown  that  one  of 
the  defendants  received  the  price  of  freight  on  produce  so  received  and 
carried  bj*  the  patroon,  a  distinct  recognition  of  their  authority  to  con- 
tract for  them  ;  and  there  is  not  a  tittle  of  evidence  that  this  authority 
was  ever  rescinded.  The  authority  was  general  as  to  that  particular 
business,  and  the  contract  to  carry  was  directly  in  pursuance  of  it. 
The  defendants  were  therefore  bound. 

The  proof  of  the  custom  appears  to  me  to  have  been  too  equivocal  to 
have  supported  the  verdict  on  that  ground  alone.  To  make  a  good 
custom  it  must  be  proved  to  be  general  ;  and  if  the  proof  had  l)cen  that 
those  concerned  in  the  navigation  of  the  Savannah  River  had,  from  time 
immemorial,  authorized  and  permitted  their  slave  patroons  to  contract 
for  carrying  freight,  the  defendants  would  have  unquestionably  been 
bound  by  it ;  but  the  proof  here,  with  the  exception  of  one  witness,  is 
confined  to  particular  instances,  and  it  is  not  very  obvious  that  that 
witness  clearly  understood  what  is  meant  by  a  general  custom. 

Motion  dismissed. 

Harper,  J.,  absent. 

Wiirdlaw,  for  the  motion. 
Calhoun,  contra. 


SECT.  II.]      COBB   V.   SUPERIOR   COURT    OF    GRAND    RAPIDS. 


COBB,    Relator,   v.   JUDGE  OF  THE  SUPERIOR  COURT 
OF   GRAND    RAPIDS. 

Supreme  Court  of  Michigan.  1880. 

[43  Mich.  289.] 

Mandamus.     Submitted  April  13.     Decided  April  14. 

Smiley^  for  relator. 

Maher^  for  respondent. 

Marst(in,  C.  J.  In  a  cause  pending  in  the  Superior  Court  of  Grand 
Rapids  some  of  tlie  defendants  appeared  b}'  an  attorney  and  afterwards, 
at  tlieir  request  and  witli  the  consent  of  their  attorney,  a  substitution 
was  made  under  which  a  third  person  not  an  attorney  of  the  court 
appeared  in  the  cause  as  their  agent.  The  present  motion  raises  the 
right  of  a  party  to  appear  in  a  court  of  record  by  an  agent  who  is  not 
an  attorney  duly  licensed  to  practise  as  such.  It  was  claimed  on  the 
argument  that  parties  have  such  right  under  sec.  24,  art.  vi.  of  the 
Constitution. 

Under  the  legislation  in  force  at  the  time  of  the  adoption  of  the  Con- 
stitution no  person  was  permitted  to  practise  as  an  attorney  or  coun- 
sellor at  law,  except  in  the  county  court,  or  as  a  solicitor  or  counsellor 
in  chancery,  unless  approved  by  the  court  for  his  good  character  and 
learning,  and  duh*  admitted. 

The  Supreme  Court  was  authorized  to  grant  to  any  citizen  of  the 
State,  of  good  moral  character  and  of  the  age  of  twenty-one  years,  a 
license  to  practise  as  an  attorney,  upon  an  examination,  if  satisfied 
that  the  applicant  possessed  sufficient  legal  learning  and  ability  to  dis- 
charge the  duties  of  such  office.  Such  attorney  is  required  to  take  the 
constitutional  oath  of  office,  and  may  be  removed  or  suspended  by  the 
several  courts  in  which  he  is  authorized  to  practise.  2  Comp.  L.  §  5622 
et  seq.  These  and  other  provisions  then  and  still  in  force  show  how 
carefully  the  right  to  practise  as  an  attorney  was  guarded,  not  in  the 
admission  to  practise  alone,  but  in  regard  to  their  standing  and  retain- 
ing such  rights  thereafter.  This  legislation  and  our  entire  practice 
relating  to  attorneys  has  always  been  observed,  and  was  never  sup- 
posed to  conflict  in  any  way  with  the  constitutional  provision  referred 
to.  Our  rules  of  practice  in  reference  to  the  service  of  papers  are 
framed  upon  the  same  theory,  and  do  not  recognize  the  right  of  parties 
to  appear  by  agents  or  persons  who  are  not  attorneys  and  solicitors  of 
the  court,  and  we  are  of  opinion  that  the  word  "  agents"  as  used  in  the 
Constitution  does  not  give  the  broad  authority  claimed  by  the  respond- 
ent in  this  case.  The  Constitutional  Debates  referred  to  on  the  argu- 
ment throw  no  real  light  upon  this  question. 

If  the  word  "  agent"  as  used  in  the  Constitution,  is  not  to  be  con- 
strued as  synonymous  with  the  word  "  attorney,"  what  is  to  be  the 


6  COBB   V.    SUPERIOR   COURT   OF   GRAND    RAPIDS.        [CHAP.  L 

result?  Parties  may  appear  by  agents  possessing  no  legal  qualification 
or  even  ordinary  intelligence,  and  of  the  worst  possible  character;  tliey 
ma}*  be  minors,  and  may  even  be  persons  who  liave  been  disbarred  and 
removed  bj'  this  court  from  practising  as  attorneys  and  solicitors. 
They  could  not  practise  as  attorneys,  po'ssessing  neither  the  legal  nor 
moral  qualifications  for  such  a  position,  and  yet  they  could  appear  as 
agents.  They  would  possess  the  rights  of  attorneys,  but  not  be  subject 
to  the  responsibilities  ;  their  removal  by  the  court,  if  they  could  be 
removed,  would  be  a  mere  idle  ceremony.  Litigants  might  again  em- 
plo3'  them  and  authorize  them  to  appear  and  represent  their  interests, 
so  that  persons  who  could  not  practise  as  attorne3's  could  as  agents, 
with  equal  rights  and  powers.  Such  could  not  have  been  the  intention 
of  the  fraraers  of  our  fundamental  law,  or  of  the  people  in  adopting  it. 

There  are  still  additional  reasons  for  this  view.  Attorneys  are 
licensed  because  of  their  learning  and  abilit}',  so  that  they  may  not 
only  protect  tlie  rights  and  interests  of  their  clients,  but  be  able  to  assist 
the  court  in  the  trial  of  the  cause.  Yet  what  protection  to  clients  or 
assistance  to  courts  could  such  agents  give?  They  are  required  to  be 
of  good  moral  character,  so  that  the  agents  and  oflficers  of  the  court, 
which  they  are,  may  not  bring  discredit  upon  the  due  administration  of 
the  law  ;  and  it  is  of  the  highest  possible  consequence  that  both  those 
who  have  not  such  qualifications  in  the  first  instance,  or  who  having 
had  them  have  fallen  therefrom,  shall  not  be  permitted  to  appear  in 
courts  to  aid  in  the  administration  of  justice.  One  of  the  principal 
powers  possessed  b}-  courts  for  the  protection  of  the  public,  and  to 
maintain  the  high  standing,  character,  and  reputation  of  the  bar,  is  the 
right  to  expel  members  who  have  been  shown  guilty  of  immoral  acts, 
thus  rendering  them  unworthy  to  longer  retain  their  position  as  officers 
of  the  court.  This  court  has  had  occasion  heretofore  to  disbar  attor- 
neys convicted  of  crime,  or  shown  guilty  of  some  serious  offence.  Such 
persons  can  no  longer  a[)pear  as  attorneys  in  any  court  of  record,  and 
it  is  equally  clear  that  they  would  have  no  right  to  appear,  and  should 
not  be  permitted  to  represent  an}'  person  in  court,  either  as  attorne3-s, 
agents,  or  otherwise.  If  the}'  have  such  power  or  right  their  position  is 
better  than  before,  and  the  judgment  of  this  court  is  practicall}'  of  but 
little  force  or  effect.  An  examination  of  the  opinions  of  this  court 
in  the  Matter  of  Mills,  an  attorney,  1  Mich.  392,  and  of  the  People  v. 
May,  3  Mich.  598,  will  show  the  importance  of  this  question. 

The  writ  must  issue  as  pra^'ed  for. 

The  other  Justices  concurred.^ 

1  The  early  history  of  attorneys  at  law  may  be  traced  in  Glanvill,  lib  XI. ;  Bracton 
de  Legibus,  fo.  3.34,  342-343;  Statute  of  VVestniiuster  II.,  13  Ed.  I.,  stat.  1,  c.  10,  s.  7; 
Fleta,  lib.  iv.,  c.  vi.,  §7,  lib.  vi.,  c.  vi.,  §  14,  Ub.  vi.,  c.  ix.,  §§  7,  9-11;  Erittou,  fo.  119  b, 
120,  285  b-287.     And  see  1  Pollock  and  Maitland's  History  of  Euglisli  Law,  190-196. 

"  Any  suitor  in  any  court  of  this  state  shall  have  the  right  to  prosecute  or  defend 
his  suit,  either  in  his  own  proper  person,  or  by  an  attorney  or  agent  of  his  choice." 
Constitution  of  Michigan,  art.  vi.,  sec.  24  (1850).  —  Ec. 


SECT.  II.]  WIDRIG    V.   TAGGART.  7 

SECTION   II.  {continued), 
(B)   Infancy. 

WATKINS   V.   VINCE. 
Nisi  Prius.     1818. 

[2  Starkie,  368.] 

This  was  an  action  on  a  guarantee  by  the  defendant,  b}-  which,  as 
was  alleged,  he  had  guaranteed  to  the  plaintiff  the  payment  for 
100,000  bricks,  to  be  supplied  to  one  Hanipson. 

The  guarantee  was  in  the  hand-writing  of  James  Vince,  the  son  of 
the  defendant,  a  minor  of  the  age  of  IG.  It  was  proved  that  he  had 
signed  for  his  father  in  three  or  four  instances,  and  that  he  had  ac- 
cepted bills  for  him. 

Gurneij  for  the  defendant  objected,  that  this  was  too  slight  evidence 
of  authority  given  to  the  son  to  warrant  the  receipt  of  the  guarantee  in 
evidence  against  the  father;  but  — 

Lord  Ellenborougii  held,  that  this  was  sufficient  priz/^a  fade 
evidence,  in  the  absence  of  any  inducement  on  the  part  of  the  son 
to  commit  a  crime. 

Gurney  afterwards  objected,  that  such  a  guarantee  required  a  stamp  ; 
but  — 

Lord  Ellenborougii  overruled  the  objection,  the  guarantee  being  a 
contract  relating  to  the  sale  of  goods,  and  therefore  within  the  excep- 
tion in  the  statute.  Verdict  for  the  'plaintiff . 

Topping  and  V.  Lawes^  for  the  plaintiff. 
Gurney^  for  the  defendant. 


JACOB  WIDRIG,  BY  NEXT  friend,  v.  LESTER  B.  TAGGART 
Supreme  Court  of  Michigan.     1883. 

[51  Mich.  103.] 

Assumpsit.     Defendant  brings  error.     Affirmed. 

Cohb  &  Ely^  for  appellant.  Recoupment  may  be  had  against  an 
infant  suing  for  the  value  of  his  services.  Moses  v.  Stevens,  2  Pick. 
332;  Thomas  v.  Dike,  11  Vt.  273;  Hoxie  v.  Lincoln,  25  Vt.  210; 
Judkins  v.  Walker,  17  Me.  38  ;  Vehuet;.  Pinkham,  60  Me.  142. 

Geo.  TP".  Mead.,  for  appellee.  In  an  infant's  action  for  the  value  of 
his   services  no   deduction  can   be   made   for  his  own  breach  of  the 


8  WIDEIG   V.   TAGGAKT.  [CHAP.  I. 

contract  of  emplo^'ment.  Whitmarsh  v.  Hall,  3  Den.  375  ;  Derocher  v. 
Continental  Mills,  58  Me.  217  ;  Robinson  v.  Weeks,  56  Me.  102  ;  Vent 
V.  Osgood,  19  Pick.  575  ;  Gaffney  v.  Hoyden,  110  Mass.  137  ;  Meeker  v. 
Hard,  31  Vt.  642;  Dallas  v.  Hollingsworth,  3  Ind.  537;  Meredith  v. 
Crawford,  34  Ind.  399  ;  Ray  v.  Haines,  52  III.  485  ;  Kearney  v.  Doyle, 
22  Mich.  294. 

Graves,  C.  J.  The  plaintiff,  a  minor  of  the  age  of  nineteen, 
labored  as  a  farm  hand  for  defendant  from  the  last  of  March  until  the 
earl}'  part  of  Jul}',  a  space  of  eighty-five  days,  and  brought  this  action 
to  recover  for  the  service.  The  defendant  had  previously  paid  him 
$45.  The  jury  found  in  his  favor,  and  allowed  him  $5.87,  and  the 
defendant  brought  error  to  this  court. 

At  the  trial  the  defendant  proposed  to  recoup  damages  bj-  showing 
that  the  labor  sued  for  was  performed  under  an  express  contract  with 
the  plaintilF  to  serv^e  for  seven  months  at  $17.50  per  month,  and  that 
he  quit  during  the  term  and  just  before  harvest ;  but  the  court  ruled 
out  the  defence.  The  plaintiff  admitted  he  was  not  entitled  to  recover 
at  as  high  a  rate  as  $17.50  per  month,  and  the  circuit  judge  told  the 
jury  that  the  measure  of  recover}'  would  be  what  the  services  were 
worth  at  that  season,  after  bearing  in  mind  that  the  value  might  be  less 
than  in  case  the  labor  had  been  extended  or  continued  through  the 
summer.  The  value  found  by  the  jur}'  was  at  the  rate  of  $15.50  per 
month,  —  a  sum  less  than  the  lowest  value  in  the  evidence.  We 
discover  no  error. 

The  plaintiff,  in  consequence  of  his  infanc}',  was  not  compellable  to 
pa}'  damages  for  withdrawing  from  his  contract  engagement.  Recoup- 
ment is,  in  substance  and  effect,  a  cross-action,  and  unless  the  party 
whom  it  is  attempted  to  subject  to  it  could  be  compelled  to  respond 
for  the  damages  by  an  independent  action  against  him,  he  cannot  be 
reached  by  recoupment ;  and  such  was  the  position  ot  the  plaintiff. 

Persons  who  contract  with  minors  must  understand  that  they  do  so 
at  the  risk  of  greater  or  less  disadvantage.  The  adult  binds  him- 
self, but  the  infant  does  not.  And  the  law  has  not  found  it  possible 
to  maintain  these  conditions  of  inequalit}',  and  at  the  same  time  secure 
to  the  adult  the  same  measure  of  remedial  right  which  obtains  where 
both  parties  are  of  full  legal  capacity. 

The  judgment  must  be  affirmed  with  costs. 

The  other  Justices  concurred.^ 

1  And  see  Vasse  v.  Smith,  6  Cranch,  226  (1810);  Moses  v.  Stevens,  2  Pick.  332 
^1824),  Hoxie  v.  Lincoln,  25  Vt.  207  (1853).  —  Ed. 


SECT.  II.  1  EMERSON    V.    BLONDEN.  9 

SECTION   II.   (continued). 
(C)    Coverture. 

EMERSON   V.    BLONDEN. 
Nisi  Prius.     1794. 

[1  Esp.  142] 

Assumpsit  for  the  use  and  occupation  of  certain  rooms  in  the  plain- 
tiff's house,  which  had  been  let  to  the  defendant. 

The  defendant  and  liis  wife  had  taken  the  apartments  at  a  certain 
rent,  the  wife  had  made  the  bargain,  and  had  agreed  to  give  three 
months'  notice  of  quitting.  Having  quitted  without  notice,  the  action 
was  brought  to  recover  the  three  months'  rent. 

A  witness  for  the  plaintiff  proved  a  demand  of  the  rent  from  the  de- 
fendant's wife,  and  that  she  had  acknowledged  the  sura  claimed  to  be 
due,  and  had  promised  payment. 

Mingcuj,  for  the  defendant,  objected  to  this  evidence,  as  it  was  ad- 
mitting the  declarations  of  the  wife,  and  her  acknowledgment  of  debt 
to  charge  the  husband. 

It  was  answered  b}-  the  plaintiff's  counsel,  that  the  defendant  having 
in  the  present  instance  permitted  his  wife  to  act  for  him,  in  making  the 
agreement,  and  settling  the  terms  upon  which  the  lodgings  were  taken, 
that  he  had  thereb}-  constituted  her  his  agent  for  that  purpose,  and 
should  therefore  be  bound  I)y  her  acts  and  admissions. 

Lord  Kenyon  said,  that  the  rule  of  law  had  been  correctly  stated  b}' 
the  plaintiff's  counsel,  that  where  a  wife  acts  for  her  husband  in  an}' 
business  or  department,  by  his  authority  and  with  his  assent,  that  he 
thereby  adopts  her  acts,  and  must  be  bound  by  any  admission  or  ac- 
knowledgment made  by  her  respecting  that  business,  in  which  b}*  his 
authority  she  has  acted  for  him,  and  that  therefore  in  the  present  case 
her  admission  of  the  debt  due  to  the  plaintiff,  on  account  of  the  lodging, 
was  competent  and  admissible  evidence  to  charge  the  husband. 

Tlie  plaintiff  had  a  verdict. 

Erskine  and  Baldwin,  for  the  plaintiff. 

Mingay,  for  the  defendant. 


10  WRIGHT   V.    DANNAH.  I'CHAP.  L 

SECTION   II.   (continued). 
(D)   Tke  Statute  of  Frauds.^ 

WRIGHT  V.  DANNAH. 

Nisi  Prius.     1809. 

[2  Camp.  203.] 

Goods  bargained  and  sold.  Plea,  the  general  issue. 
The  action  was  brought  for  the  value  of  four  sacks  of  clover  seed. 
The  parties  having  met  on  tlie  corn  exchange  in  London,  entered  into 
a  negotiation  for  the  sale  of  this  seed  ;  and  after  they  had  agreed  on 
the  price,  the  plaintiff  wrote  the  following  memorandum  of  the 
contract : — 

"  Robert  Dannah,  Windley,  near  Derby. 
4  sacks  clover  seed,  at  £6  18s. 
Per  Fly  Boat." 

After  the  plaintiff  had  written  this  memorandum,  the  defendant,  who 
overlooked  him  while  he  wrote  it,  desired  him  to  alter  the  figures  18  to 
16, — £6  16s.  being  the  price  agreed  on.  This  the  plaintiff  accord- 
ingly did.  They  then  parted,  the  memorandum  being  left  with  the 
defendant. 

Park  objected  that  this  was  not  a  sufficient  memorandum  within  the 
statute  of  frauds,  not  being  signed  by  the  party  to  be  charged  by  it,  or 
his  authorized  agent.^ 

Garroio  and  Puller,  contra,  submitted  that  the  defendant  had  made 
the  plaintiff  his  agent  for  the  purpose  of  signing  the  memorandum,  by 
overlooking  and  approving  of  what  he  had  written  ;  and  they  put  the 
ease  of  a  man  incapable  from  disease  or  ignorance  of  writing  for 
himself. 

Lord  Ellenborough  said  the  agent  must  be  some  third  person,  and 
could  not  be  the  other  contracting  party.* 

Plaintiff  nonsuited. 

Garrow  and  Puller,  for  the  plaintiff. 

Park,  for  the  defendant. 

1  The  pertinent  parts  of  the  statute  are  reprinted  post,  p.  52.  —  Ed. 

2  29  Car.  2,  c.  3,  §  17,  enacts,  "that  no  contract  for  the  sale  of  any  goods,  &c.,  for 
the  price  of  £10  or  upwards,  shall  be  good  except,  &c.,  or  that  some  note  or  memo- 
randum in  writing  of  the  said  bargain,  be  made  and  signed  by  the  parties  to  be 
charged  by  such  contract,  or  their  agents  thereunto  lawfully  authorized."  —  Rep. 

8  Ace:  Sharman  v.  Brandt,  L.  R.  6  Q.  B.  720  (Ex.  Ch.  1871).  — Ed. 


SECT.  11.]  FAREBKOTIIER   V.    SIMMONS.  11 

FAREBROTHER  v.   SIMMONS. 

King's  Bench.     1822. 

[5  D  tj-  Aid.  333.] 

Assumpsit  by  the  plaintiff,  an  auctioneer,  against  the  defendant,  for 
not  taking  or  clearing  away  or  paying  tlie  purchase-money,  being  £34, 
for  a  lot  of  turnips,  standing  and  being  on  certain  land.  Second  count, 
for  crops  of  turnips  bargained  and  sold,  etc.,  and  the  usual  money- 
counts.  Plea,  general  issue.  At  the  trial  before  Wood,  B.,  at  the  last 
assizes  for  the  county  of  Surry,  the  only  question  was,  whether  there 
was  a  sufficient  contract  in  writing  to  satisfy  the  statute  of  frauds.  It 
appeared  that  the  contract  given  in  evidence  was  the  book  in  which  the 
plaintiff  himself  had  written  down  the  different  biddings  opposite  to 
the  lots,  and  which  book  had  been  duly  stamped.  The  learned  Judge 
directed  a  verdict  for  the  plaintiff,  reserving  to  the  defendant  liberty 
to  move  to  enter  a  nonsuit.  Marryat,  in  last  Michaelmas  Term, 
obtained  a  rule  nisi  for  that  purpose,  and  cited  Wright  v.  Danuah,  2 
Camp.  203. 

Gurney  and  Abraham  now  showed  cause.  This  was  no  interest  in 
land ;  for  the  turnips  having  ceased  to  grow,  the  land  merely  was  a 
warehouse  for  them.  But  even  if  this  be  not  so,  the  book  is  sufficient 
to  take  the  case  out  of  the  statute.  For  the  plaintiff  may  be  considered 
as  the  agent  of  both  himself  and  the  defendant  for  the  purpose  of  reduc- 
ing the  contract  into  writing.  The  case  of  AVright  v.  Dannah  is  dis- 
tinguishable. There  the  party  who  wrote  the  memorandum  was  the 
person  who  made  the  sale  for  his  own  benefit.  Here  it  is  the  ease  of  an 
auctioneer,  who  has  no  personal  interest  in  the  transaction. 

Abbott,  C  J.  The  most  favorable  way  for  the  plaintiff  is  to  treat 
the  question  as  a  case  of  goods  sold  and  delivered  ;  and  then,  the  goods 
being  above  the  price  of  £10,  the  case  will  fall  within  the  17th  section 
of  the  statute  of  frauds,  which  requires  some  note  or  memorandum  in 
writing  of  the  bargain,  to  be  made  and  signed  b}-  the  parties  to  be 
charged  b}'  it,  or  their  agents,  thereunto  lawfully  authorized.  Now,  the 
question  is,  whether  the  writing  down  the  defendant's  name  b}' the  plain- 
tiff, with  the  authorit}'  of  the  defendant,  be  in  law  a  signing  b}'  the  de- 
fendant's agent.  In  general,  an  auctioneer  may  be  considered  as  the 
agent  and  witness  of  both  parties.  But  the  difficult}'  arises,  in  this 
case,  from  the  auctioneer  suing  as  one  of  the  contracting  parties.  The 
case  of  Wright  v.  Dannah  seems  to  me  to  be  in  point,  and  fortifies  the 
conclusion  at  which  I  have  arrived,  viz.,  that  the  agent  contemplated 
63-  the  legislature,  who  is  to  bind  a  defendant  by  his  signature,  must  be 
some  third  person,  and  not  the  other  contracting  party  upon  the  record 

Hide  absolute. 


12  BIRD    V.    BOULTER.  [CHAP.  L 

BIRD  V.  BOULTER. 
King's  Bench.     1833. 

[4  B.  <^-  Ad.  443.] 

Assumpsit  for  goods  sold  and  delivered,  and  goods  bargained  and 
sold.  Plea,  the  general  issue.  At  the  trial  before  Littledalk,  J.,  at 
the  Hereford  Spring  Assizes,  1832,  it  appeared  that  the  goods  in  ques- 
tion (wheat,  the  property  of  one  Smith)  were  a  lot  sold  at  an  auction, 
and  knocked  down  to  the  defendant  by  the  plaintiff,  who  was  the  auc- 
tioneer, at  a  price  exceeding  £10.  Tlie  course  pursued  at  this  sale 
was,  that  the  parties  as  usual  signified  their  biddings  to  the  auctioneer, 
who  repeated  them  aloud  ;  and  when  the  hammer  fell,  one  Pitt,  who 
attended  as  the  auctioneer's  clerk,  called  out  the  name  of  the  pur- 
chaser, and,  if  the  party  assented,  made  an  entry  accordingly  in  the 
sale-book.  In  the  present  instance,  the  auctioneer  having  named  the 
defendant  as  the  purchaser,  Pitt  said  to  him,  "  Mr.  Boulter,  it  is  your 
wheat;"  the  defendant  nodded,  and  Pitt  made  the  entry  in  his  sight, 
he  being  then  within  the  distance  of  three  yards.  The  question  was, 
whether  a  note  or  memorandum  of  the  bargain  had  been  made,  pur- 
suant to  29  Car.  2,  c.  3,  s.  17,  In-  the  party  to  be  charged,  or  his  agent 
thereunto  lawful!}-  authorized.  A  verdict  was  taken  for  the  plaintiff, 
and  leave  given  to  move  to  enter  a  nonsuit.  A  rule  nisi  having  been 
obtained  for  that  purpose, 

The  Solicitor-  General  (with  whom  was  "Whately)  now  showed  cause. 
It  is  still,  perhaps,  vexata  qucestio,  whether  sales  b}-  auction  are  within 
the  seventeenth  section  of  the  statute  of  frauds  at  all,  but  see  Kenwortby 
V.  Schofield,  2  B.  &  C-  945  ;  but  it  is  not  necessarv  to  discuss  that 
point.  The  objection  taken  on  the  other  side  was,  that  under  the 
seventeenth  section,  one  contracting  party  cannot  constitute  the  other 
his  agent,  to  sign  the  memorandum  (which,  it  was  said,  was  the  effect 
of  the  present  transaction)  ;  and  Wright  v.  Dannah,  2  Campb.  203, 
and  Farebrother  v.  Simmons,  5  B.  <fe  A.  333,  were  cited.  In  the  first 
of  those  cases.  Lord  ELLENBORorGH  held,  that  the  agent  who  signed 
the  memorandum  must  be  a  third  person,  and  not  one  of  the  con- 
tracting parties  ;  and,  in  the  other,  Abbott,  C.  J.,  referring  to  Wright 
V.  Dannah,  held  that  an  auctioneer's  signature  was  not  sufficient, 
where  he  sued  as  one  of  the  parties  to  the  contract.  But  the  doctrine 
of  these  cases  is  not  borne  out  by  the  words  of  the  statute  ;  and,  at 
common  law,  there  is  nothing  to  prevent  one  contracting  party  from 
being  the  agent  of  the  other ;  an  obligor,  for  instance,  from  gi\ing  an 
obligee  a  power  of  attorney  to  execute  a  bond  for  him  ;  a  lessee  from 
executing  a  lease  as  attorney  of  the  lessor ;  a  party  from  accepting  a 
bill  by  procuration,  payable  to  his  own  order ;  assuming  the  authority 
in  each  case  to  be  complete,  which  would  be  matter  of  evidence.  It 
was  admitted  here  that  Smith,  the  owner  of  the  goods,  might  have 


SECT.  II.]  BIRD    V.    BOULTER.  13 

maintained  the  action.  But  the  defendant  is  either  bound  by  the  con- 
tract originall}',  or  not  bound  ;  if  he  is  bound,  it  does  not  matter  b}' 
whom  the  action  is  brought,  so  that  it  is  a  part}'  entitled  to  enforce 
the  contract  b^'  action  ;  and  this  was  the  view  taken  by  the  learned 
Judge  at  the  trial.  But  there  is  no  need  to  contest  the  cases  cited. 
Here  the  memorandum  was  not  signed  by  the  auctioneer,  who  sues, 
but  by  another  party,  Pitt,  who  signed  the  contract  by  the  defendant's 
immediate  autliority.  If  it  is  rightly  held  that  a  contracting  party  can- 
not be  the  agent  to  sign  under  section  17,  that  restriction  will  surely 
not  be  extended  to  his  clerk.     The  court  here  called  upon 

Ludloic^  Serjeant,  and  Justice,  contra.  To  decide  in  favor  of  the 
plaintilT,  the  court  must  overrule  Farebrother  v.  Simmons,  5  B.  &  A. 
333.  It  is  not  disputed  that,  if  Smith  had  sued,  an  entr\'  by  the 
auctioneer  would  have  been  a  sutlicient  memorandum  to  bind  the 
purchaser ;  so  also  would  an  entry  by  his  clerk.  In  Henderson  v. 
Barnewall,  1  Y.  &  J.  389,  Hdllock,  B.,  observed  that  "an  auc- 
tioneer's clerk,  who  writes  down  the  name  of  the  buyer  in  his  pres- 
ence, is  the  agent  of  both  parties."  But  then,  whether  the  auctioneer 
or  the  clerk  sign,  the  same  objection  arises,  that  the  memorandum  is 
signed  by  one  of  the  contracting  parties,  who  is  plaintiff  in  the  suit ; 
for  the  clerk's  signature  is  that  of  his  master.  [Littledale,  J.  Then 
you  would  say  that  an  auctioneer  can,  in  no  case,  bring  an  action  like 
this  in  his  own  name.]  He  is  not  obliged  to  sue;  the  vendor  mav.  If 
the  auctioneer  makes  himself  the  plaintiff,  he  must  take  the  consequent 
disadvantages.  [Taunton,  J.  Ma}-  not  the  vendor  have  two  agents  ; 
one  to  extol  the  commodity',  the  other  to  do  the  mechanical  vAork  of 
making  the  memorandum  in  the  sale-book?]  The  latter  is  an  essen- 
tial part  of  the  auctioneer's  duty  ;  the  clerk,  in  doing  it,  represents 
him ;  and  it  was  proved  in  this  case  that  Pitt  was  the  clerk  and  servant 
of  Bird.  His  receipt  for  money  would  have  been  that  of  Bird,  and 
would  have  charged  Bird,  and  not  Pitt  himself.  Edden  v.  Eead,  3 
Camp.  339.  The  auctioneer,  in  this  case,  on  knocking  down  the  lot, 
says,  "It  is  Mr.  Boulter's"  (the  defendant);  and  the  clerk  writes; 
that  is,  in  effect,  that  the  auctioneer  writes  b}'  the  hand  of  his  clerk. 
If  not,  where  is  the  memorandum  b}'  an  agent  lawfully  authorized? 
for  there  was  no  attempt  at  the  trial  to  establish  a  distinct  agenc}'  in 
the  clerk.  And  if  the  signature  is  to  be  made  available  as  that  of  the 
auctioneer  given  by  the  hand  of  his  clerk,  Wright  v.  Dannah,  2  Camp. 
203,  and  Farebrother  v.  Simmons,  5  B.  &  A.  333,  applj'.  [Pat- 
TESON,  J.  In  Blore  v.  Sutton,  3  Mer.  237,  the  signature  of  an  agent's 
clerk  acting  for  and  under  the  direction  of  the  agent,  in  a  case  within 
sect.  4  of  the  statute,  was  held  not  to  be  a  memorandum  b}'  the  au- 
thorized agent  of  the  principal.]  The  dictum  of  Hullock,  B.,  in  Hen- 
derson V.  Barnewall,  1  Y.  &  J.  389,  contradicts  this.  [Patteson,  J. 
That  was  not  called  for  by  the  case  before  the  court.]  In  a  sale  by 
auction  the  knocking  down  constitutes  the  contract ;  the  entr\-  is  a 
requisite  superadded  bj'  the  statute,  but  it  is  not  a  distinct  transaction. 


14  BIRD    V.    BOULTER.  [CHAP.  I. 

[LiTTLEDALE,  J.  Ma}'  it  iiot  be  said  that  the  clerk  is  constituted  a 
deput}"  by  all  the  room  ?]  He  goes  to  the  sale  in  a  definite  character, 
hired  to  act  for  a  particular  master ;  he  could  not  sue  an}-  other  person 
for  work  and  labor  ;  and  the  auctioneer  might  sue  for  labor  done  by  his 
clerk.  The  clerk  acts  as  a  mere  automaton  under  the  direction  of  tlie 
auctioneer. 

Dekman,  C.  J.  I  think  this  case  is  distinguishable  from  AVright  v. 
Dannah,  2  Camp.  203,  and  Farebrother  v.  Simmons,  5  B.  &  A.  333 ; 
and  it  appears  to  me  that  the  clerk  was  not  acting  merel}'  as  an  autom- 
aton, but  as  a  person  known  to  all  engaged  in  the  sale,  and  employed 
by  any  who  told  him  to  put  down  his  name.  Without,  therefore,  in- 
terfering with  the  cases  that  have  been  cited,  I  think  this  rule  must 
be  discharged. 

LiTTLEDALE,  J.  With  rcspcct  to  the  cases  relied  upon  in  support  of 
the  rule,  there  is  certainly  a  difficulty  in  saying  that  a  purchaser  shall 
be  bound  by  a  contract  or  not,  as  the  action  is  brought  bj'  one  party 
or  another.  It  is,  indeed,  irregular  that  the  real  buj'er  or  real  seller 
should  make  the  other  party  his  agent  to  sign  a  memorandum  under 
the  statute  ;  but  when  that  is  done  through  a  third  person  the  objection 
is  removed.  An  auctioneer  is  enabled  by  law  to  sue  the  purchaser, 
but,  according  to  the  rule  insisted  upon  for  the  defendant,  an  action  of 
this  kind  could  not  be  maintained  by  the  auctioneer.  I  think  that  a 
clerk  employed  as  Pitt  was  in  this  case,  must,  in  an  action  brought  bj- 
the  auctioneer,  be  considered  as  his  agent  for  the  purpose  of  taking 
down  the  names,  and  also  as  the  agent  of  the  several  persons  in  the 
room  for  the  same  purpose,  and  to  prevent  the  necessity'  of  each 
purchaser  coming  to  the  table  to  make  the  entry  for  himself 

Taunton,  J.  I  ver}'  much  agree  with  my  brother  Littledale  as  to 
the  difficulty  in  Farebrother  v.  Simmons,  5  B.  &  A.  333.  But  there  is 
no  necessity  to  overrule  that  case.  The  Chief  Justice  there  says,  in 
the  close  of  his  judgment,  "  Wright  v.  Dannah  fortifies  the  conclusion 
at  which  I  have  arrived,  viz.,  that  the  agent  contemplated  by  the  legis- 
lature, who  is  to  bind  a  defendant  by  his  signature,  must  be  some  third 
person,  and  not  the  other  contracting  party  on  the  record."  It  is  a 
sufficient  distinction  between  that  case  and  this,  that  in  the  former  the 
auctioneer,  whose  signature  was  relied  upon,  was  the  party  suing;  here 
the  signature  is  by  a  third  person.  I  would,  however,  go  farther  than 
this.  Under  the  circumstances,  I  think  Pitt  may  be  considered  to  have 
been  the  agent  of  the  vendor.  It  is  not  necessary  to  suppose  that  the 
vendor  rested  a  particular  confidence  in  the  auctioneer  for  the  purpose 
of  putting  down  the  names  in  the  sale-book.  He  may  be  taken  to  have 
constituted  that  person  his  agent  for  the  making  of  such  entries,  whom 
the  auctioneer  might  choose  to  appoint.  If  so,  Pitt  was  agent  for  the 
vendor,  and  also  for  the  persons  in  the  room  who  saw  him  acting  as  he 
did  under  the  auctioneer,  and  by  their  acquiescence  constituted  him 
their  agent  for  the  business  which  they  saw  him  performing.  At  all 
events  he  is  a  third  person,  and  not  a  contracting  party  on  the  record 


SECT.  III.]  STEAD   V.   THORNTON.  15 

Patteson,  J.  It  is  not  necessary  here  to  overrule  FarebrotUer  y. 
Simmons,  5  B.  &  A.  333.  It  ma}'  be  correct  to  say,  as  there  laid 
down,  that  the  signature  must  be  by  a  third  person,  and  not  by  a 
contracting  party  on  the  record.  Here  it  was  so.  According  to  the 
evidence,  Pitt  was  seen  by  all  the  parties  at  the  sale  making  the  entries 
in  the  sale-book  ;  it  was  inconvenient  that  each  purchaser  should  come 
to  the  table  for  that  purpose,  and,  by  nodding  as  the  names  were 
called,  they  authorized  him  to  act  as  lie  did.  Rule  discharged. 


SECTION   III. 
Who  can  he  a  Principal. 
(A)    General  Principles. 

STEAD   V.  THORNTON. 
King's  Bench,  1832. 
[3  B.^^  Ad.  357,  u.  («).] 

Assumpsit  for  money  had  and  received.  At  the  trial  before  Parke, 
J.,  at  the  Yorkshire  Lent  assizes,  1831,  it  appeared  that  the  money  in 
question  was  part  of  tiie  bankrupt's  estate,  and  had  been  received  by 
the  defendant  in  the  capacity,  as  it  was  alleged,  of  agent  to  his  brother, 
who  was  assignee  of  the  bankrupt,  but  who  became  insane,  and  was  so 
during  the  whole  time  when  the  money  was  received.  He  was  after- 
wards removed,  and  the  present  assignee,  the  plaintiff,  appointed  in  his 
stead.  At  the  trial  it  was  contended  that  the  mone}'  having  been  re- 
ceived by  the  defendant  as  agent  for  his  brother,  the  late  assignee, 
there  was  no  privity  of  contract  between  the  parties  to  tliis  action,  that 
it  ought  to  have  been  brought  against  the  representatives  of  the  late 
assignee,  and  that  the  defendant  was  answerable  to  them  alone.  The 
learned  judge  directed  a  nonsuit,  with  leave  to  move  to  enter  a  verdict 
for  the  plaintiff.     A  rule  nisi  having  been  obtained  accordingly, 

John  WiUiains  and  Starkie  now  showed  cause,  and  restated  the 
ground  of  nonsuit.  The  imbecilit}'  of  the  former  assignee  makes  no 
difference ;  he  was  assignee  in  point  of  law  till  removed,  and  the 
defendant  would  have  been  liable  in  an  action  brought  by  him  for  the 
mone}'  received  on  account  of  the  estate.  The  assignee's  want  of  intel- 
lect would  have  been  no  defence  to  such  an  action  against  his  agent. 
The  defendant  then  continues  to  be  legally  liable  for  this  mone}'  to  the 
representatives  of  the  late  assignee,  and  therefore  no  privity  of  contract 
can  be  raised  between  the  defendant  and  the  new  assignee.  Sect.  66 
of  the  bankrupt  act,  6  G.  4.  c.  16,  applies  only  to  debts  due  to  the 


16  STEAD    V.    THORNTON.  [CHAF.  L 

bankrupt  at  the  time  of  the  fresh  assignment ;  here  the  debt  was  not 
due  to  the  bankrupt,  but  to  tlie  former  assignee. 

JF^.  Pollock  (and  Alexander  was  with  him),  contra.  The  former  as- 
signee having  been  insane,  the  defendant  must  be  taken  to  have 
received  the  mone}'  on  liis  own  responsibiUty,  and  not  as  agent.  "Where 
a  person  receives  money  with  knowledge  that  anotlicr  party  is  or  will, 
under  certain  circumstances,  he  entitled  to  it,  there  is  sutlicient  privity 
to  make  the  receiver  liable  at  the  suit  of  such  other  party.  Littlewood 
V.  Williams,  1  Marsh.  o89  ;  6  Taunt.  277.  The  argument  on  the  other 
side  would  introduce  a  circuity  of  action  :  a  new  assignee  would  have 
to  sue  the  old,  and  he  to  sue  the  agent,  who  had  received  money 
and  not  paid  it  over.  Such  agent  cannot  indeed  be  liable  to  two  sets 
of  assignees  at  the  same  time,  but  he  may  be  to  both  successively. 
De  Cosson  v.  Vaughan,  10  East,  61,  shows  that  under  the  former 
bankrupt  acts  a  new  assignee  might  recover  in  debt  upon  a  judgment 
recovered  on  behalf  of  the  bankrupt's  estate  by  an  assignee  who  had 
been  removed  ;  and  that  case  is  applicable  here«  (Here  he  was  stopped 
by  the  court.) 

Lord  Tentekden,  C.J.  We  are  not  called  on  to  decide  how  the 
case  would  be  if  the  defendant  had  received  this  money  as  the  duly 
constituted  agent  of  the  former  assignee.  He  could  not  be  so,  that 
assignee  having  been  incompetent  to  appoint  any  agent.  He  is,  there- 
fore, in  the  situation  of  an}*  other  person  who  has  received  and  has  in 
his  hands  a  part  of  the  bankrupt's  estate,  and  is  undoubtedly  liable  to 
those  who  represent  that  estate. 

Parke,  J.  If  the  receipt  of  this  mone}'  had  taken  place  under  such 
circumstances  that  the  former  assignee  could  have  been  charged  with 
it,  as  he  might  if  he  had  received  it  bj-  his  agent  or  clerk,  I  should  have 
thought  this  action  not  maintainable.  But  here  the  receipt  was  that  of 
the  defendant  alone,  who  stood  in  the  situation  of  a  mere  stranger,  and 
held  the  money  subject  to  the  claim  of  the  assignees  who  might  be 
afterwards  appointed. 

Patteson,  J.  It  is  unnecessar}'  to  sa}'  what  might  have  been  the  case 
if  the  defendant  had  received  the  money  as  agent  to  his  brother.  It  is 
sufficient  that  he  did  not  stand  in  that  situation,  the  brother  being 
incapable  of  having  an  agent. 

Mule  absolute.^ 

1  With  this  case  compare  Read  v.  Legard,  6  Ex.  636  (1851),  aud  Debeuham  v.  Mel- 
lon, 6  App.  Cae.  24  (1880).— Ed. 


SECT.  III.]  WHITTINGHAM'S   CASE.  17 

SECTION    III.   (continued). 
(B)    Infancy. 

BARTHOLOMEW  v.  DIGHTON. 
Queen's  Bench,  1595-6  and  1597. 

[Cro.  Eliz.  424.] 

Error  upon  a  judgment  in  the  Common  Pleas,  because  the  plaintiflF, 
being  an  infant,  sued  by  attorney  and  recovered,  whereas  he  ought  to 
have  sued  b}-  his  guardian.  But  the  Court  upon  the  motion  held  that 
in  regard  the  plaintitF  hath  recovered,  and  it  is  for  his  benefit,  and  no 
prejudice  by  his  appearance  by  attorney,  that  it  should  not  be  assigned 
for  error :  but  they  would  advise.  And  afterward,  Fasch.  39  Eliz., 
being  moved,  it  was  held  clearly  to  be  error.  And  the  judgment  was 
reversed  for  that  cause. 


WHITTINGHAM'S  CASE. 
Star  Chamber,  1G02-3. 

[8    Co.  42  i  ] 

The  case  in  the  Star  Chamber,  Hil.  45  Eliz.,  was,  that  Richard  Whit- 
tingham  was  seised  of  three  messuages,  &c.,  in  Crayford,  in  the  count}' 
of  Kent,  held  of  the  Queen  in  socage,  as  of  the  manor  of  Newberry  in 
Crayford  in  fee  ;  and  by  his  will  in  writing  devised  them  to  Prudence, 
his  bastard  daughter,  and  her  heirs,  and  died.  Prudence,  being  within 
age  of  21  3'ears,  by  deed,  as  was  pretended,  did  enfeoff  Stephens  and 
others  of  the  said  tenements  in  fee,  and  died  within  age  without  issue  ; 
and  whether  this  feoffment  should  prevent  the  Queen  of  her  escheat  was 
the  question.  And,  on  consideration  had  with  the  two  Chief  Justices, 
it  was  resolved  that  if  there  be  lord  and  infant-tenant,  and  the  infant 
makes  a  feoffment  in  fee,  and  executes  it  by  livery  of  seisin  by  his  own 
hands,  and  afterwards  dies  without  heir,  that  the  lord  should  not  take 
benefit  of  any  escheat  in  that  case.^  .  .  . 

But  afterwards  it  appeared  in  the  principal  case,  that  the  said  sup- 
posed feoffment  of  the  said  Prudence  wats  ixecuted  by  letter  of  attorney 
made  by  the  said  Prudence  ;  wherefore  it  was  resolved  that  it  was  void, 
and  that  the  land  did  escheat  to  the  Queen. 

^  The  report  is  shortened  by  giviug  only  the  passage  as  to  the  power  of  attorney. 
—  Ed. 

2 


o 


18  LAWRENCE   V.    MCARTER.  [CHAP.  1. 


RAMES  V.   MACHIN. 
Common  Tleas.     About  1G08. 

[.Vc;^,  130.] 

In  an  Ejectione  firm.,  by  the  Court,  That  a  lease  for  years  for  an 
/hfant  to  try  the  title,  is  good  enough,  because  it  is  for  his  advantage. 
Note  21  H.  6.  31,  letter  of  attorney-  hy  an  infant  to  receive  livery 
and  seisin  for  him.  ^ 


Lessee  of  LAWRENCE  v.  McARTER. 
Supreme  Court  of  Ohio.     1840. 

[10  Ohio,  37.] 

This  is  a  motion  to  set  aside  a  verdict,  taken  for  the  defendant,  in 
an  action  of  P^jectment,  in  the  county  of  Knox. 

William  Barton,  Sen.,  was  once  the  owner  of  the  land. 

He  died,  and  his  will  was  proved  in  1802.  By  it  he  devised  the  land 
"  to  my  four  sons,  Gilbert,  William,  Joseph,  and  George,  or  the 
survivors  of  them,  and  tlieir  heirs  and  assigns,  to  be  equally  divided 
among  them  when  the  youngest  attains  the  age  of  twenty -one  years." 

All  the  sons  survived  the  testator. 

1  "  And  that  which  is  to  liis  advantage  an  infant  can  do :  for  if  a  feoffment  be 
made  to  an  infant  who  makes  a  letter  of  attorney  to  another  person  to  take  livery  of 
seisin  for  him,  this  livery  of  seisin  is  well  made,  and  lawfully ;  the  cause  is  because 
this  is  for  his  advantage.  And  the  law  is  the  same  if  an  infant  make  me  the  bailiff 
of  his  manor,  and  to  have  the  care  and  administration  of  his  goods;  if  afterwards 
he  will  bring  action  of  trespass  against  me,  I  plead  the  aforesaid  matter  in  bar  well 
enough,  and  he  can  have  against  me  a  writ  of  account,  wliich  will  be  to  liis  advan- 
tage."    Per  Ayscoghe,  J.,  in  Botteler  v.  Newport,  Y.  B.  21  H.  VI.  31  (1442-3). 

"  All  such  gifts,  grants,  or  deeds  made  by  an  infant,  as  do  not  take  effect  by  delivery 
of  his  hand  are  void.  But  all  gifts,  grants,  or  deeds  made  by  an  infant  by  matter  in 
deed,  or  in  writing,  which  take  effect  by  delivery  of  his  own  hand,  are  voidable  by 
himself,  and  his  heirs,  and  by  those  who  have  his  estate."  Perkins'  Profitable  Book, 
sec.  12  (1532). 

"  The  words  '  which  do  take  effect '  are  an  essential  part  of  the  definition  ;  and  ex- 
clude letters  of  attorney,  or  deeds  which  delegate  a  mere  power  and  convey  no 
interest.  .  .  . 

"  The  distinction  hetween  the  deeds  of  femes  covert  and  of  infants  is  important : 
the  first  are  void  ;  the  second  voidable.  .  .  . 

"  Powers  of  attorney  are  an  exception  to  the  general  rule  as  to  deeds  ;  and  a  power 
to  receive  seisin  is  an  exception  to  that.  The  end  of  the  privilege  is  to  protect  infants. 
To  that  object,  therefore,  all  the  rules  and  their  exceptions  must  be  directed."  Per 
Lord  Mansfield,  C.  J,  in  Zouch  w.  Parsons,  3  Burr.  1794,  1804,  1805,  1808  (1765).— 
Ed. 


SECT.  III.]  LAWRENCE   V.    Mf^ARTER.  19 

George,  the  youngest  son,  attuiiied  twenty-one  years  in  1816. 

Gilbert  died  in  1812,  intestate  and  without  issue. 

William  died  prior  to  1812,  and  left  a  sou  William  and  a  daughter, 
his  heirs-at-law. 

Joseph  was  living  when  George  arrived  at  full  age,  and  the  defendant 
now  holds  his  interest. 

In  1815,  before  he  came  of  age,  George  gave  to  his  brother  Joseph  a 
letter  of  attorney,  to  sell  his  lands,  and  thev  have  been  sold  under  it, 
and  the  defendant  claims  the  title. 

In  1835,  George  conveyed  to  the  plaintiff. 

In  the  same  year  William,  the  grandson,  conveyed  to  the  plaintiff. 

M.  A.  Sayre  and  R.  C.  Hurd,  for  the  plaintiff. 

1.  The  letter  of  attorney  from  George  Barton  is  void,  because  at  the 
time  of  giving  it  he  was  an  infant.  There  may  be  doubts  whether  an 
infant  can  make  a  valid  deed  of  bargain  and  sale,  or  of  lease  and  re- 
lease, but  a  letter  of  attorney,  conveying  no  present  interest,  is  spoken 
of  in  all  the  books  as  a  mere  nullity.  Zouch  v.  Parsons,  3  Burr.  1804  ; 
Saunderson  v.  Marr,  1  H.  Bl.  75  ;  Stafford  v.  Roof,  9  Cowen,  626 ; 
2  Kent  Com.  234,  236;  Fonda  v.  Van  Home,  15  Wend.  631  ;  3  Bac. 
Ab.  598;  2  Roll.  Ab.  2;  Noy,  130;  Palm.  237;  Roll.  Rep.  242; 
8  Co.  45  a. 

An  act  done  by  another  for  an  infant,  which  act  must  necessarily  be 
by  letter  of  attorney  under  seal,  is  absolutely  void.  Whitne}-  v.  Dutch, 
14  Mass.  461. 

A  letter  of  attorney'  given  bj'  an  infant  is  absolutely  void.  Pyle  v. 
Cravens,  4  Littell,  18  ;  Burton  on  Real  Property,  69  ;  Law  Library 
No.  67 ;  1  Story's  Eq.  247 ;  Bingham  on  Infancy,  34 ;  Story's 
Agency,  7. 

H.  Stanhery,  C.  Delano^  and    H.  B.  Curtis,  for  the  defendant. 

1.  There  is  scarcely  any  question  more  vexed  tlian  whether  the  acts 
of  infants  are  void  or  voidable. 

This  court  was  pressed  with  the  difBcult}-  arising  from  the  contrariety 
of  the  cases,  in  Drake  v.  Ramsay,  5  Ohio  Rep.  251.  but  settled  no  gen- 
eral rule. 

The  older  cases  seem  inclined  to  make  the  acts  of  infants  void  rather 
than  voidable,  and  though  no  recent  case  is  found  directly  overruling 
these  decisions,  3'et  the  rule  of  late  recognized  is  based  on  a  different 
principle,  holding  the  acts  of  an  infant  void  where  the}-  are  to  his 
prejudice,  but  voidable  where  they  may  be  beneficial  to  him ;  and  leav- 
ing their  ratification,  or  disaffirmance,  to  his  mature  judgment,  at  full 
age.  2  Kent's  Com.  236  ;  Oliver  v.  Houdlett,  13  Mass.  239  ;  Kline  v. 
Beebe,  6  Conn.  503. 

In  Vin.  Ab.  384,  it  is  said,  If  a  man  makes  a  deed  of  feoffment  to  an 
infant,  and  the  infant  makes  a  letter  of  attorney  to  another  to  take 
livery  for  him,  this  is  good,  because  it  is  for  his  benefit.  S.  P.  1  RolL 
Ab.  730  ;    Whitney  v.  Dutch,  14  Mass.  457. 


c 


20  WAPLES    V.    HASTINGS.  [CHAP.  L 

Lake,  C.  J.'  The  effect  of  this  interpretation  is,  that  "William  Barton, 
the  grandson,  took  one  half  the  share  of  his  father  who  held  one  fourth 
the  land  under  the  will,  and  one  sixteenth  as  the  heir  of  his  uncle 
Gilbert,  which  is  now  the  property  of  the  plaintiff,  and  is  five  thirtj'- 
seconds  of  the  entire  estate. 

The  same  rule  of  construction  gave  to  George  Barton  ten  thirty- 
seconds,  which  is  likewise  held  bj-  the  plaintiff,  under  a  deed  from  him, 
unless  George  was  divested  of  his  title  b}-  the  sale  under  the  letters  of 
attorney-,  given,  in  his  minority,  to  his  brother  Joseph. 

It  is  claimed  by  the  plaintiff  that  these  letters  of  attorne}-  are  void, 
incapable  of  ratification,  and  never  well  executed. 

We  are  then  led  to  the  oft  d^6ussed,  and  yet  not  settled  question,  as 
to  what  acts  of  an  infant  are^-goid  and  what  voidable.  No  accurate 
test  has  yet  been  propounded  to  determine  this  important  point,  and 
the  authorities  seem  rather  to  decide  individual  cases  than  to  give  a 
comprehensive  and  intelligible  rule.  Yet  in  all,  and  from  the  earliest, 
we  find  it  laid  down  that  deeds  which  do  not  derive  their  eflScac}'  from 
delivery  only  are  void ;  and  it  has  been  held  in  man}'  cases,  and,  as 
far  as  I  can  learn,  without  a  dissenting  opinion,  or  a  contradictory 
authority',  that  letters  of  attorney,  conveying  no  present  interest,  are 
absolutely  null. 

It  would  be  a  bold  act  to  attempt  to  withstand  this  bod}-  of  precedent, 
and  we  cannot  but  recognize  it  as  destructive  of  that  part  of  the  de- 
fendant's title. 

It  is  therefore  unnecessar}'  to  consider  any  further  questions.  The 
plaintiff  is  entitled  to  fifteen  thirt^'-seconds  of  the  land. 

The  defendant  is  to  have  the  benefit  of  the  law  for  the  relief  of 
occupants.  Motion  granted. 


WILLIAM   D.   WAPLES   v.  RICHARD   F.   HASTINGS. 

Superior  Court  of  Delaware.     1842. 

[3  Harrington,  403.] 

Judgment  confessed  on  bond  and  warrant  of  attorney,  dated  18th 
of  February,  1836.  On  the  application  of  defendant,  rule  to  show 
cause  wh}'  the  judgment  should  not  be  vacated,  on  the  ground  that  the 
defendant  was  an  infant  at  the  date  of  the  bond  and  warrant  of 
attorn  e}'. 

At  the  hearing  it  appeared  that  the  defendant  was  born  on  the  24th 
of  April,  1816.  He  was  acting  as  a  man  of  full  age  in  1836,  doing 
business  as  a  partner  with  his  father ;  generally  understood  to  be  of 

1  The  report  has  been  abbreviated  by  omitting  from  the  arguments  and  from  the 
opinion  passages  as  to  the  nature  of  the  estate  transmitted  to  the  sons  by  the  will.  —  Ed. 


SECT.  III.]  WAPLES    V.    HASTINGS.  21 

age,  and  voted  at  the  goneial  election  in  that  year.  In  March,  1840, 
he  executed  a  paper  under  hand  and  seal,  expressly  to  recognize  and 
confirm  tliis  bond  and  warrant  of  attorney  given  to  William  D.  Wa[)les, 
in  Februar}',  1836.  Tiie  judgment  was  confessed  on  the  23d  of 
February,  1836. 

Houston,  in  support  of  the  rule. 

R'uhjehj,  contra. 

Bayard  replied. 

By  the  Court.  The  bond  and  warrant  of  attorney  of  an  infant  are 
void.     3  Com.  Dig.,  Enfant,  B,  Co.  Lit,  172  a. 

The  court,  on  motion,  will  set  aside  a  judgment  on  a  warrant  of 
attorney  executed  by  an  infant.  3  Com.  Dig.,  Enfant,  B  ;  2  W.  Bl. 
1133  ;  1  H.  Bl.  75,  Saunderson  v.  Marr. 

Even  if  the  contract  could  be  confirmed  after  full  age,  it  would 
not  set  up  the  warrant  of  attorney.  2  B.  &  C.  824,  Thornton  v. 
lUingworth. 

The  bond  and  warrant  of  attorney  failing,  the  judgment  is  without 
authority  and  must  be  vacated. 

The  cases  of  suits  against  femes  covert  as  femes  sole  have  only 
decided  that  the  court  will  not  permit  the  defendant  to  set  up  her 
coverture  in  a  summai}-  way,  but  put  her  to  plead  the  coverture. 

Ride  absolute} 

*  "  An  act  which  an  infant  is  under  a  legal  incapacity  to  perform  is  the  appoint- 
ment of  an  attorney,  or,  in  fact,  an  agent  of  any  kind.  And  this  rule  depends  upon 
reasoning  which,  if  somewhat  refined,  is  yet  perhaps  well  founded.  The  constituting 
of  an  attorney  by  one  whose  acts  are  in  their  nature  voidable  is  repugnant  and  im- 
possible, for  it  is  imparting  a  right  which  the  principal  does  not  possess,  —  that  of 
doing  valid  acts.  If  the  acts  when  done  by  the  attorney  remain  voidable  at  the  option 
of  the  infant,  the  power  of  attorney  is  not  operative  according  to  its  terms;  if  thev 
are  binding  upon  the  infant,  then  he  has  done  through  the  agencv  of  another 
what  he  could  not  have  done  directly,  —  binding  acts.  The  fundamental  principle 
of  law  in  regard  to  infants  requires  that  the  infant  should  have  the  power  of  affirming 
such  acts  done  by  the  attorney  as  he  chooses,  and  avoiding  others,  at  his  option ; 
but  this  involves  an  immediate  contradiction,  for  to  possess  the  right  of  availing 
himself  of  any  of  the  acts,  he  must  ratify  the  power  of  attorney,  and  if  he  ratifies  the 
power,  all  that  was  done  under  it  is  confirmed.  If  he  affirms  part  of  a  transaction, 
he  at  once  confirms  the  power,  and  thereby,  against  his  intention,  affirms  the  whole 
transaction.  Such  personal  and  discretionary  legal  capacity  as  an  infant  is  vested 
with  is,  therefore,  in  its  nature,  incapable  of  delegation ;  and  the  rule  that  an  infant 
cannot  make  an  attorney  is,  perhaps,  not  an  arbitrary  or  accidental  exception  to  a 
principle,  but  a  direct,  logical  necessity  of  that  principle.  But  if  the  considerations 
suggested  as  the  foundation  of  this  rule  be  not  satisfactory,  the  rule  itself  is  estab- 
lished by  a  conclusive  weight  of  authority."     1  American  Leading  Cases  (.5th  ed.),  247. 

For  a  discussion  of  the  distinction  between  void  and  voidable,  see  The  State  v. 
Richmond,  26  N.  H.  232,  2.-57-239  (\^bS),per  Bell,  J.,  and  Markby's  Elements  of  Law 
§§  274,  649-652,  764.  —  Ed. 


22  HARDY   V.   WATERS.  [CHAP.  I. 


HARDY   V.   WATERS. 
Supreme  Judicial  Court  of  Maine.     1853. 

[38  Me.  450.] 

On  exceptions  from  Nisi  Pi'ius,  Hathaway,  J.,  presiding. 

Assumpsit,  on  a  promissory  note,  payable  to  a  minor,  wlio  was 
under  guardianship.  The  note  was  indorsed  to  the  plaintiff,  b}-  a 
brother  of  the  pa3'ee,  also  a  minor,  being  authorized  by  the  payee  to 
write  his  name  thereon.  Since  this  suit  was  commenced,  the  guardian 
had  approved  of  the  transfer  to  plaintiff. 

The  defence  was  that  the  note  had  not  been  legall3'  negotiated,  and 
therefore  the  plaintiff  could  not  maintain  this  action.  The  court 
I'uled  otherwise,  and  the  plaintiff  recovered  the  amount  of  the  note. 
Defendant  excepted. 

Cutting^  for  defendant. 

It  is  not  contended  that  an  infant  payee  may  not  indorse  and 
transfer  a  note  payable  to  him  or  his  order,  as  was  decided  in  Nightin- 
gale V.  Withington,  15  Mass.  272,  or  make  a  ratification  after  be- 
coming of  age,  as  in  Whitney  v.  Dutch,  14  Mass.  457. 

But  it  is  denied  that  an  infant  under  guardianship  has  such  authority  ; 
or  having  such  authority,  can  delegate  to  another ;  or  if  to  another, 
an  infant. 

It  is  settled  be3'ond  controversy  that  an  infant  cannot  delegate 
authorit}'  to  an  agent  or  attorney'  to  transact  business  or  appear  in 
his  behalf. 

An  infant  is  also  incapable  of  assuming  an}-  power  as  an  agent  or 
attorney.  More  especially  if  the  infant  delegating  such  power  be  under 
guardianship.  If  a  decision  adverse  to  these  propositions  be  pro- 
nounced by  this  court,  it  would  overturn  all  the  elementary  law  on 
this  subject. 

"  The  assignment  of  a  promissory  note  by  an  attorney  in  fact  of  an 
infant  obligor  is  void,  though  the  infant  be  present  at  the  assignment." 
Semple  v.  Morrison,  7  Monroe  (Kentucky),  298,  cited  in  2  Sup.  U. 
S.  Dig.  159. 

The  consent  of  the  guardian,  since  the  commencement  of  the  suit, 
cannot  affect  the  rights  of  the  parties  as  they  existed  when  the  suit 
was  instituted.  Ford  v.  Phillips,  1  Pick.  202  ;  Thing  v.  Libbey.  16 
Maine,  55. 

Peters,  for  plaintiff,  cited  15  Mass.  before  cited;  22  Pick.  540; 
Nightingale  v.  Withington,  15  Mass.  272;  2  Kent's  Com.  235;  1  N. 
H.  73;  10  Peters,  71  ;  7  Cowen,  179  ;  1  Met.  559  ;  Whitney  v.  Dutch  & 
al.  14  Mass.  457. 

Shepley,  C.  J. — It  is  admitted  that  an  infant  may  transfer  a 
promissory  note  payable  to  himself  by  indorsement.  It  is  denied 
that  he  can  confer  upon  another  the  power  to  do  it  for  him,  the  reason 


SECT.  III.]  OULDS    V.    SANSOM.  23 

is,  that  an  indorsement  by  an  infant  is  voidable  ;  while  his  act  confer- 
ring power  upon  another  to  do  it  for  him  is  void. 

If  the  act  of  transfer  in  this  case  be  voidable  only,  it  is  to  be 
regarded  as  valid  until  avoided  ;  and  it  can  be  avoided  onl}'  b}'  the 
infant  or  his  heir  or  personal  representative.  If  the  power  to  indorse 
by  another  was  void,  it  could  not  be  ratified,  and  the  plaintiff  could 
acquire  no  legal  interest  in  the  note ;  and  the  approval  of  tlie  guardian 
since  the  commencement  of  the  suit  cannot  aid  him. 

In  the  case  of  Whitney  v.  Dutch,  14  Mass.  457,  the  right  of  an 
infant  to  empower  another,  otherwise  than  by  an  instrument  under 
seal,  to  do  an  act  for  him,  which  he  might  lawfully  perform  himself, 
was  fully  considered.  It  was  admitted,  if  the  court  were  confined  to 
the  letter  of  the  authorities,  it  must  conclude,  that  the  act  could  not  be 
performed  by  delegated  power. 

Considering,  that  the  object  of  the  law  was  to  protect  infants  from 
injui-y,  and  that  this  would  be  fully  effected  by  regarding  contracts  so 
entered  into  as  voidable  and  not  void,  the  court  came  to  the  conclusion 
that  there  could  be  no  difference,  upon  principle,  between  the  ratifica- 
tion of  a  contract  made  b}'  an  infant  and  one  made  through  the  inter- 
vention of  another  person  acting  under  parol  authority'  from  him. 

Changes  in  the  law  respecting  negotiable  paper  are  undesirable, 
and  should  not  be  made  without  strong  reasons  for  them.  The  de- 
cision in  that  State  was  made,  and  the  rule  of  law  established,  while 
this  State  composed  a  part  of  it.  It  should  not,  after  it  has  been  so 
long  received  as  the  law,  be  abrogated  merely  because  other  highlv 
respectable  courts  have  come  to  a  different  conclusion,  especiall}'  when 
it  is  not  perceived,  that  it  has  been,  or  is  likely  to  be  productive  of 
any  injustice  or  mischief.  Exceptions  overruled. 

Tenney,  Appleton,  and  Rice,  JJ.,  concurred. 


SECTION   III.   {continued). 
(C)   Coverture. 

OULDS   AND   Others  v.  SANSOM.  C 

Common  Pleas.     1810. 

[3   Taunton,  261.] 

This  was  a  writ  of  right.  The  demandants,  three  coheiresses,  femes 
covert^  suing  without  their  husbands,  by  their  attorney,  demanded  cer- 
tain premises  in  Leighton,  Essex.  The\'  counted  upon  the  seisin  of 
Mary  Lewis,  and  averred  that  upon  her  death,  for  that  she  died  without 
issue  of  her  body,  the  right  descended  to  John  Spriggs,  father  of  the 


24  SUMNER   V.   CONANT.  [CHAP.  L 

demandants,  who  was  cousin  and  heir  of  Mary  Lewis,  but  onl}-  argu- 
mentativel}',  whereas  the  cousinage  of  the  said  John  to  the  said  Marj 
ought  to  have  been  directly  and  expressly'  shown  bj'  the  count. 

Mest,  Serjt.,  in  support  of  the  demurrer,  took  a  preliminary  objec- 
tion, that/emes  covert  could  not  make  an  attorney. 

jShejj/ierd,  Serjt.,  admitted  he  could  not  answer  this  objection. 

Lawrence,  J.    It  is  matter  in  abatement  of  the  writ.     The  judgment 
must  be  quod  breve  cassetur. 

Judgment  for  the  tenant. 


SUMNER  V.  CONANT. 

Supreme  Court  of  Vermont.     1836. 

[10  Vt.  9  ] 

Ejectment,  to  recover  a  lot  of  land  in  Barnard,  numbered  165.  The 
plaintiff  claimed  to  derive  title  from  Benning  Wentworth,  as  one  of  the 
original  grantees  of  said  town  of  Barnard.  On  the  trial  of  the  cause, 
the  plaintiff  gave  in  evidence  a  copy  of  the  charter  of  the  town  of 
Barnard,  which  grants  the  town  in  sixty-nine  equal  shares  to  the  per- 
sons therein  named.  After  naming  other  grantees,  the  shares  of  Gov. 
Wentworth  are  mentioned  as  follows  :  "  His  Excellency  Benning  Went- 
worth, Esq.,  a  tract  as  marked  in  the  plan,  '  B.  W.'  to  contain  five 
hundred  acres,  which  is  to  be  accounted  two  of  the  within  shares." 
The  shares  of  Gov.  Wentworth  were  not  designated  on  the  plan  by  the 
letters  "  B.  W."  being  marked  thereon.  The  plaintiff  also  offered  in 
evidence  a  copy  of  the  will  of  Benning  Wentworth,  who  devised  the 
whole  of  his  estate,  both  real  and  personal,  to  Martha  Wentworth,  his 
wife.  A  copy  of  the  will  of  the  said  Martha  Wentworth,  who  devised 
all  her  real,  personal,  and  mixed  estate  to  her  daughter,  Martha  Went- 
worth, wife  of  John  Wentworth,  in  tail-general,  with  power  to  sell  and 
dispose  of  such  part  of  the  personal  or  real  estate  as  might  be  best 
spared,  for  her  and  her  famil^-'s  comfortable  support,  and  to  do  good  to 
the  poor  and  need}'.  A  power  of  attoi-ney  from  John  Wentworth  and 
Martha,  his  wife,  to  Isaac  Shepherd,  authorizing  the  said  Shepherd,  in 
the  name  of  the  said  John  and  Martha,  "  to  prosecute,  sue  for,  and 
recover  all  and  ever}-  the  right  and  rights  commonly  called  the  Gov- 
ernor's right,  or  farm,  situate  and  being  in  the  State  of  Vermont,  in 
every  township  in  said  State,  containing  five  hundred  acres,  more  or 
less,  and  reserved  to  His  Excellenc}',  the  late  Governor  Benning  Went- 
worth "  and  also  empowering  the  said  Shepherd  "  to  convey  all  and 
every  such  right  or  right  or  rights  in  said  State  of  Vermont,  in  our 
name,  and  to  give  deeds  of  quit  claim  to  purchasers  of  the  same."  The 
plaintiff  also  offered  a  deed  from  the  said  John  Wentworth  and  Martha, 
his  wife,  executed  by  said  Shepherd  as  their  attorney,  to  Henry  A. 


SECT.  III.]  SUMNEU   V.    CONANT.  25 

Raixlall,  conveying  (among  other  lands)  Gov,  Wentworth's  two  rights 
in  IJarnard.  Also,  a  power  of  attorney  from  said  Randall  to  said 
Sheplierd  empowering  the  said  She[)herd,  as  tlie  attorney  of  said  Ran- 
dall, to  sell  and  convey,  in  the  name  of  said  Randall,  by  quit-claim 
deed,  any  or  all  of  the  said  Randall's  lands,  and  a  deed  from  said 
Randall,  executed  by  said  Shepherd,  as  his  attorney,  to  the  plaintiff, 
conveying  (among  otiier  rights)  Gov.  Wentworth's  two  lights  in  Bar- 
nard. Also,  a  copy  from  the  proprietors'  records  of  said  town,  which 
show  that  a  meeting  was  called  "  to  see  if  the  proprietors  will  rectify 
an}*  mistakes,  if  there  should  be  an}'  found,  in  the  proprietors'  records," 
"  to  see  if  the  proprietors  will  finish  laying  out  and  dividing  the  re- 
mainder of  the  undivided  lands  in  said  Barnard,"  and  for  other  pur- 
poses, as  spccilied  in  tlie  warning;  that  the  proprietors  met  on  the  6th 
of  October,  1795,  and  chose  "a  committee  of  three  to  look  into  the 
proprietors'  records  and  state  the  mistakes  and  make  report  at  the  next 
meeting;"  that  tlie  meeting  adjourned  to  the  1-ith  of  Octol)er,  1795; 
that  the  proprietors  met  pursuant  to  the  adjournment,  and  the  commit- 
tee, appointed  at  the  previous  meeting,  reported  that  on  examination  of 
the  records  they  found  that,  at  a  former  meeting  of  the  proprietors, 
a  division  of  lands  in  said  Barnard  had  been  made,  and  the  lots  on 
which  the  settlers  lived  were  voted  to  them  in  lieu  of  the  lots  by  them 
drafted,  and  the  remainder  of  said  division  was  made  by  draft;  that 
the  clerk,  through  mistake,  entered  on  the  records  all  the  voted  and 
drafted  lands,  as  voted,  making  no  distinction,  and  that  they  had 
"  entered  the  voted  and  the  drafted  lands  as  follows  :  Governor's  two 
shares,  drafted,  166,  169,  265,  165,  168,  264,"  which  report  the  meet- 
ing voted  to  accept. 

The  several  deeds  and  letters  of  attorney  above  set  forth  were  duly 
executed  and  acknowledged,  and  the  magistrate  who  took  the  acknowl- 
edgment of  jNIartha  Wentworth  certified  that  she  was  examined  sepa- 
rate and  apart  from  her  husband.  The  defendant  objected  to  the 
introduction  of  all  the  foregoing  evidence,  except  the  copy  of  the 
charter,  and  the  several  w'ills  of  Benning  "Wentworth,  but  the  court 
overruled  the  objections,  and  admitted  the  evidence.  Tiie  plaintiff  also 
gave  evidence,  tending  to  prove  the  marriage  of  Michael  Wentworth  to 
the  said  Martha  Wentworth  first  named,  on  the  19th  December,  1770  ; 
and  also,  of  the  said  John  Wentworth  to  the  said  Martha  Wentworth, 
secondly  al)ove  named,  on  the  7th  Januarv.  1802,  and  that  the  said 
Benning  Wentworth  died,  prior  to  the  31st  day  of  October,  1770,  and 
that  the  said  John  Wentworth  died  on  the  3d  day  of  June,  1831 ;  and  it 
was  conceded  that  the  defendant  was  in  possession  of  the  land  in  con- 
trovers}'.  On  the  trial,  the  counsel  for  the  defendant  contended  and 
requested  the  court  to  charge  the  jury  :  1 .  That  by  the  terms  of  the  char- 
ter, if  Benning  Wentworth  acquired  any  rights  under  such  charter,  he 
acquired  a  right,  in  severalt>-,  to  500  acres  of  land  in  one  separate  and 
distinct  tract,  and  not  a  right  to  five  or  six  different  tracts  located  in 
different  parts  of  the  town,  and  that  it  was  incumbent  on  the  plaintiff 


26  SUMNER  V.   CONANT.  [CHAP.  L 

to  show  the  land  sued  for  to  be  a  part  of  said  tract ;  2.  That,  inasmuch 
as  the  tract  attempted  to  be  granted  b}'  said  charter  to  said  Benning 
Wentworth  was  not  therein  described  with  such  certainty  that  it  could 
be  known  and  distinguislied  from  the  lands  granted  by  said  charter  to 
the  other  grantees  therein  named,  said  grant  was  void  as  to  said  Went- 
worth ;  3.  That  the  said  Benning  Wentworth  never  had  any  legal 
interest  in  the  land  in  question,  bv  virtue  of  said  charter;  4.  That 
neither  the  plaintiff  nor  any  of  the  persons  from  or  through  whom  his 
pretended  title  passed  ever  had  any  legal  right  or  interest  to  the  land 
in  question,  b}'  virtue  of  any  division  of  the  lands  in  Barnard,  shown  by 
the  evidence  in  the  case  to  have  been  made  by  the  proprietors  of  said 
town.  But  the  court  refused  so  to  charge  the  jur}',  but  did  charge  tliem 
to  the  contrary  thereof.  Whereupon  the  jur}'  returned  a  verdict  for  the 
plaintiff,  and  the  court  rendered  judgment  thereon ;  to  which  decision 
and  charge  the  defendant  excepted. 

Aikens  &  Edgerton,  for  the  defendant. 

T.  Hutchinson^  for  plaintiff. 

The  opinion  of  the  court  was  delivered  by 

RoYCE,  J.^  The  case  shows  that  all  the  right  of  Benning  Wentworth 
came  b}'  devise  to  Martha,  the  wife  of  John  Wentworth,  about  1803; 
and  the  only  remaining  question  is,  whether  the  plaintiff  has  ac- 
quired her  title.  This  depends  on  the  validity  of  the  power  of  attor- 
ney, executed  by  her  and  her  husband  to  Shepherd,  in  October,  a.  d. 
1808.  The  power  was  undoubtedly  good  for  all  the  purposes  men- 
tioned in  it,  except  that  of  conveying  lands  ;  because  the  husband  alone 
was  competent  to  authorize  all  necessar}'  acts  to  accomplish  those  pur- 
poses. And  whether  it  was  also  good  for  the  purpose  of  passing  her 
title  to  the  lands  is  a  question  of  great  importance,  and  one  which  has 
never  been  decided  in  this  court  to  our  knowledge. 

At  common  law,  a  woman  under  coverture  could  make  no  convey- 
ance of  her  lands,  except  through  the  agency  of  a  court  of  record.  She 
could  neither  convey  directly  by  deed,  nor  authorize  any  one  to  convey 
for  her.  All  her  present  right  to  convey  by  deed  is  therefore  conferred 
by  statute.  The  requisites  of  a  common  deed  of  conveyance  are  pre- 
scribed by  the  fifth  section  of  the  act  regulating  conveyances.  It  must 
be  "  signed  and  sealed  by  the  party  having  good  and  lawful  authority 
thereunto,"  and  "  signed  by  two  or  more  witnesses,  &c."  The  ninth 
section  contemplates  that  such  deed  may  be  executed  by  attorney,  and 
discloses  some  of  the  requisites  of  the  power  of  attorney.  The  words  are, 
"  such  power  having  been  signed,  sealed,  and  acknowledged  before  a  jus- 
tice of  the  peace,  by  the  party  having  lawful  right  to  make  the  same." 
Thus  far  the  statute  is  applicable  to  all  persons  having  a  legal  right  to 
act  under  it,  whether  by  conveying  their  lands  directly,  or  empowering 
agents  to  conve}'.  No  personal  disabilities  are  as  yet  mentioned,  or  pro- 
vided for.     But  the  twelfth  section  relates  exclusively  to  the  case  of  a 

1  The  opinion  is  abridged  by  omitting  paragraphs  not  bearing  upon  the  power  of 
attorney.  —  Ed. 


SECT.  111.]  SUMNER  V.   CONANT.  27 

feme  covert  attempting  to  convey  her  lands  by  deed.  The  right  is  there 
given  or  recognized  to  convey  "  by  deed  of  herself  and  baron  ;  "  and 
as  a  protection  against  any  improper  influence  of  the  husband,  her 
separate  examination  and  acknowledgment  are  made  necessary,  and 
required  to  be  certilied  upon  the  deed.  The  question  now  presents 
itself,  whether  this  deed  may  not  be  executed  through  the  instru- 
mentality of  a  third  person.  Though  it  is  generally  true  that  what 
a  person  has  a  right  to  do  in  his  own  affairs,  he  ma}'  authorize  an- 
otlier  to  do  for  him,  yet  this  is  b}-  no  means  universally  true.  An 
infant  may  execute  and  deliver  a  deed  of  his  land,  which  will  be  effec- 
tual in  law,  unless  he  afterwards  elects  to  avoid  it;  while  his  autlioiity 
to  another  to  deed  for  him,  is  merely  void.  Reeve's  D.  R.  251.  The 
disability  ofaj'e/ne  covert  is  not  founded,  like  that  of  an  infant,  ui)on 
a  supposed  want  of  discretion,  but  results  from  a  legal  subjection  to 
her  husl)and,  which  is  presumed  to  deprive  her  of  that  freedom  of  will 
which  is  essential  to  the  validity  of  contracts.  And  that  this  disability 
emphatically  applies  to  the  delegation  of  powers  is  shown  b^-  the  familiar 
case  of  an  attorney  to  defend  a  suit,  whom,  it  is  everywhere  said,  the 
wife  cannot  appoint.  It  is  contended,  however,  that  in  this  instance, 
the  statute  has  removed  her  disabilit}*.  This  proposition  is  defended 
on  two  grounds  :  1st.  That  the  power  to  convey,  and  the  deed  executed 
by  the  agent,  being  parts  of  one  entire  conveyance,  constitute  the  deed 
which  the  statute  has  authorized  ;  2d.  That,  the  right  to  conve}'  being 
expressly  given,  the  power  to  create  an  intermediate  agency  should  be 
upheld,  as  one  of  the  necessar}',  or  usual,  means  for  exercising  that 
right.  The  first  ground  here  taken  would  lead  to  a  ver}'  free  and  loose 
construction  of  the  statute.  The  power  of  attorney  is  strictly  no  part 
of  the  conveyance,  but  a  mere  qualification  of  the  person  who  is  to 
make  it.  Much  less  is  it  the  deed  of  conveyance  itself,  of  which 
alone  the  statute  speaks.  It  is  known  that  the  power  and  deed  are 
distinct  instruments,  not  merely  executed  at  different  times,  but  ac- 
knowledged bv  different  persons,  —  the  power  by  the  part}'  making  it, 
and  the  deed  by  the  agent  who  executes  it.  Such  were  the  facts  in 
this  case.  And  how  can  it  be  maintained,  except  upon  a  subtle  and 
strained  construction  of  the  act,  that  Martha  Wentworth  has  ever  exe- 
cuted and  acknowledged  the  deed  which  professes  to  convey  her  estate? 
In  our  opinion,  the  terms  of  the  statute  do  not  justify  a  conclusion  so 
wide  of  their  apparent  import. 

The  remaining  ground  is  open  to  most  of  the  observations  already 
made.  I  shall  suggest  but  a  simple  additional  objection,  which  con- 
sists in  the  inability  of  the  wife  to  revoke  a  power  of  this  description, 
without  the  concurrence  of  her  husband.  Whether  this  consideration 
alone  would  be  fatal  to  the  power  in  ever\'  case,  it  is  certain!}'  of  great 
and  decisive  force  in  the  present.  The  power  in  question  extended  to 
all  the  rights  granted,  or  reserved,  to  Gov.  Wentworth  throughout  this 
State  ;  the  pi'operty  to  be  affected  was  consequently  large,  and  the 
business  of  the  agency  was  doubtless  expected  to  continue  through  a 


28     WEISBROD   V.    CHICAGO   AND    NORTH-WESTERN   RY.    CO.      [CHAP.  I. 

course  of  years.  To  sustain  the  power,  under  such  circumstances,  would 
be  to  place  the  valuable  estate  of  a  wife  beyond  her  own  control,  and 
not  unfrequently  subject  it  to  the  waste  of  a  faithless  agent,  or  an  un- 
wise and  improvident  husband. 

Judgment  of  the  County  Court  reversed,  and  new  trial  granted.* 


ADAM  HENCHMAN  v.  JOSEPH   ROBERTS   and 
ELIZABETH   ROBERTS. 

Superior  Court  of  Delaware.     1836. 

[2  Harrington,  74.] 

Rule  to  show  cause  wh}'  a  judgment  entered  against  husband  and 
wife  should  not  be  set  aside,  because  the  warrant  of  attorney  was  given 
b^'  the  wife  after  marriage. 

The  court  said  that  the  judgment  against  the  wife  was  void,  being 
confessed  on  a  void  authority,  as  a  married  woman  cannot  execute  a 
letter  of  attorney  ;  and  the  judgment,  being  a  joint  one,  must  be  set 
aside  as  against  both.  Mule  absolute.^ 

Wales,  for  plaintiff. 

Booths  for  defendant. 


WEISBROD   V.   THE  CHICAGO    &   NORTH-WESTER]^ 
RAILWAY    COMPANY. 

Supreme  Court  of  Wisconsin.     1864. 

[18  Wis.  35.] 

Appeal  from  the  Circuit  Court  for  Winnebago  County. 

Ejectment,  for  a  strip  of  land  lying  near  the  middle  of  what  was 
commonly  known  as  Broad  Street  in  the  city  of  Oshkosh.  The  plaintiff 
claimed  the  premises  as  part  of  lot  1,  block  E,  and  lot  26,  block  D,  in 
the  2d  Addition  to  said  city.  The  defendant  claimed  to  occupy  and  use 
the  premises  as  the  property  of  one  Miller,  under  a  license  from  him. 
The  grounds  upon  which  the  parties  severally  rested  their  claims  are 
fully  and  clearly  stated  in  the  second  paragraph  of  the  opinion,  infra. 
In  making  out  his  chain  of  title  to  lot  26,  block  D,  the  plaintiff  offered 

1  Accord:  Steele  ''.  Lewis,  1  T.  B.  Mon.  48  (1824)  ;  Administrators  of  Earle  v. 
Earle,  20  N.  J.  L.  .347,  360  (1845)  ;  Lewis  v.  Coxe,  5  Harrington,  401  (1852) ;  Mott 
V.  Smith,  16  Cal.  533,  556-557  (1860).  And  see  Holladay  v.  Daily,  19  Wall.  606, 
609  (1873).— Ed. 

2  As  to  the  judgment  against  the  husband,  see  Mendenhall  v.  Springer,  3  Harnngton 
87  (1840)  ;  Britton  v.  Wilder,  6  Hill,  242  (1843).  —En. 


SECT,  111.]       WEISBROD  V.  CHICACxO  AND    NORTH-WESTERN  RY.  CO.      29 

in  evidence  the  record  of  a  power  of  attorne}-  from  Arabella  Crar^  to 
Leonard  P.  Crary,  dated  June  lltli,  1853,  and  admitted  that  said 
Leonard  was  the  husband  of  said  Arabella  at  the  time  the  instrument 
was  executed  ;  also  the  record  of  a  warranty  deed  from  Ai-abella  CrarN- 
and  Leonard  P.  Crary  to  the  plaintiff,  executed  in  June,  1854,  by  said 
Leonard  as  attorney  in  fact  of  said  Arabella  and  for  himself;  but  the 
evidence  was  excluded  on  the  ground  that  a  wife  could  not  at  that  time 
execute  a  valid  power  of  attorney  to  her  husband,  nor  execute  a  deed 
by  her  husband  as  attorney. 

After  considerable  evidence  had  been  introduced  on  both  sides  as  to 
so  much  of  the  land  in  dispute  as  fronts  lot  1,  block  E,  the  court 
instructed  tliejurv,  in  sul)stance,  that  if  Miller's  land  included  all  the 
west  half  of  Hroad  Street,  and  extended  beyond  the  centre  of  said  street, 
but  did  not  extend  to  the  east  line  of  the  street,  so  that  a  strip  of  land 
remained  between  the  east  line  of  the  Miller  purchase  and  the  east  line 
of  Broad  Street,  to  which  Miller  had  no  title,  then  his  quit-claim  deed 
to  the  plaintiff  did  not  convey  to  the  latter  that  i)ait  of  the  street  lying 
east  of  its  centre  and  in  front  of  plaintiff's  lot;  and  if  the  defendant's 
track  was  constructed  upon  the  strip  so  described,  the  plaintiff  could  not 
recover.     Verdict  and  judgment  for  thexlefendant. 

Whittemore  &  JFeisbrod,  for  appellant.!; 

M.  A.  Eihnonds^  for  resi)ondent. 

By  tlie  Court,  Dixon,  C.  J.  A  feme  covert  may  at  the  common  law 
be  an  attorne3'  of  another  to  make  liver}'  to  her  husband  upon  a  feoff- 
ment ;  and  a  husband  may  make  such  livery  to  his  wife.  She  may  act 
as  the  agent  or  attorney  of  her  husband,  and  as  sucli,  with  his  consent, 
bind  him  by  her  contract  or  other  act ;  or  she  may  act  as  the  agent  of 
another  in  a  contract  with  her  own  husband.  Story  on  Agency,  §  7. 
If  it  is  no  violation  of  the  common  law  principle  of  the  unity  of  husband 
and  wife  for  the  wife  to  act  as  the  agent  or  attorne}'  of  her  husl)and,  the 
conclusion  would  seem  irresistil)!}'  to  fojlow,  that  it  is  no  infringement 
of  the  same  principle  to  allow  the  husbij^  to  act  as  the  agent  of  the 
wife  in  cases  where  by  law  she  is  sui  juris  and  capable  of  acting  for 
herself.  At  common  law,  the  separate  existence  of  the  wife  was  for 
many  purposes  merged  in  that  of  the  husband,  and  she  could  do  no  act. 
Incapable  of  acting  for  herself,  she  could  not  appoint  another  to  act  in 
her  stead.  Her  disability  was  general,  and  hence  we  find  no  cases  in 
the  books  of  agency  in  her  behalf,  either  by  her  husband  or  another; 
certainly  none  by  her  husband,  unless  they  be  some  of  very  recent  date, 
and  which  have  arisen  since  the  enactment  of  statutes  enlarging  the 
rights  of  married  women,  and  in  which  the  capacity  of  the  husband  to 
act  as  the  agent  of  his  wife  seems  rather  to  have  been  assumed  than 
decided.  Thus  it  will  be  seen  from  the  report  that  it  was  assumed  by  the 
Court  of  Appeals,  in  Hauptman  v.  Catlin,  20  N.  Y.,  247,  that  the  hus- 
band might  act  as  the  agent  of  his  wife  in  transactions  respecting  her 
separate  estate.  Her  separate  property  was  charged  in  an  action  at 
law,  under  the  lien  act,  upon  a  contract  made  by  her  husband  as  her 


30  BODINE   V.   KILLEEN.  i[CHAP.  L 

agent.  The  opinion  in  the  case  was  written  by  the  same  learned  judge, 
whose  language  in  White  v.  Wager,  25  N.  Y.,  328,  is  quoted  b}*  counsel 
for  the  respondent  to  prove  that  the  husband  cannot  act  as  such  agent. 
Thus,  too,  it  was  assumed  bj*  this  court  in  Hobby  v.  The  Wisconsin 
Bank,  17  Wis.,  167.  But  in  neither  case  was  the  capacity  of  the  hus- 
band to  act,  or  the  power  of  the  wife  to  appoint  him,  directly  raised  or 
discussed.  The  question  passed  off  suh  silentio.  But,  as  we  have  al- 
read}'  said,  there  seems  on  principle  to  be  no  reason  to  doubt  the  cor- 
rectness of  the  doctrine  thus  assumed.  The  disability  of  the  wife  has 
in  man3-  respects  been  removed  bj'  statute,  and  she  is  now  capable  of 
acting  not  only  by  herself  but  by  an  agent,  with  no  express  limitation 
upon  her  power  of  appointment.  If  the  doctrine  of  unity  does  not  stand 
in  the  way,  as  it  seems  it  cannot,  then  we  see  nothing  to  prevent  her 
making  her  husband  her  agent,  whenever  she  chooses  to  intrust  him  with 
the  management  of  her  affairs.  It  is  true  that  the  Court  of  Appeals 
held,  in  White  v.  Wager,  that  the  statute  does  not  enable  the  wife  to 
convej"  land  to  her  husband.  It  is  also  true  that  the  statute  does  not 
authorize  her  to  receive  b}-  gift,  grant,  etc.,  from  her  husband  an}-  real 
or  personal  property ;  and  3'et  it  would  hardh'  be  contended  that  this 
limitation  upon  her  power  to  receive  directh*  abrogates  the  common  law 
rule  that  she  ma}'  act  as  the  agent  of  her  husband  in  the  sale  and  dis- 
position of  the  same  property'  to  others.  So  too  at  the  common  law  she 
could  not  take  b}'  grant  or  gift  from  her  husband  ;  still  she  could  convey 
to  others  as  his  agent.  The  distinction  arises  from  the  inherent  differ- 
ence between  a  mere  power  to  conve}*  and  the  conveyance  itself.  The 
former  is  not  regarded  in  the  law  as  a  contract,  whilst  the  latter  is. 
Hence  a  person  incapable  of  contracting  ma}'  be  the  donee  of  a  power ; 
and  husband  and  wife,  for  the  purpose  of  giving  and  receiving  a  power 
either  to  and  from  each  other  or  third  persons,  are  to  be  considered  as 
if  no  relation  of  marriage  existed  between  them.  For  these  reasons  we 
are  of  opinion  that  the  power  of  attorney  from  Arabella  Crary  to  her 
husband,  and  the  deed  from  her  to  the  plaintiff  executed  b}-  her  husband 
as  her  attorney  in  fact,  should  have  been  received  in  evidence.^ 

The  judgment  is  therefore  reversed,  and   the   cause  remanded  for 
further  proceedings  according  to  law. 


MORDAUNT   BODINE  et  al.,    Respondents,  v.   MATILDA 
KILLEEN,   Appellant. 

Court  of  "Appeals  of  New  York.     1873. 
[53  N.  Y.  93.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court  in 
the  first  judicial  department,  affirming  a  judgment  in  favor  of  plaintiffs, 
entered  upon  a  verdict. 

1  A  paragraph  not  dealing  with  Agency  is  omitted.  —  Ed 


SECT.  III.]  bodinp:  v.  killeen.  31 

This  was  an  action  for  goods  alleged  to  have  been  sold  and  deliv- 
ered by  plaintiffs  to  defendant,  a  married  woman,  between  Ma}-  and 
September,   1869. 

For  several  years  prior  to  May  1,  1869,  the  defendant  had  carried  on 
business  on  her  own  account  at  400  Broome  Street,  in  the  city  of  New 
York,  and  was  accustomed  to  purchase  stock  in  trade  of  plaintiffs. 
Up  to  the  early  part  of  1868  such  purchases  were  made  tlirough  her 
husband,  acting  as  her  agent.  lie  being  taken  ill,  she  subsequently 
made  the  purchases  and  payments  herself.  On  May  1,  1869,  she  sold 
out  to  her  husband,  and  he  opened  and  continued  a  similar  business 
for  himself  in  Twenty-eighth  Street,  and  made  purchases  therefor  of 
the  plaintiffs  upon  credit. 

The  court  charged  the  jury  in  effect  that  they  were  only  to  deter- 
mine in  this  case  whether  notice  was  given  plaintiffs  by  defendant  of 
her  retirement  from  business ;  that  in  case  the  plaintiffs  had  no  such 
notice  the  verdict  must  be  in  their  favor,  to  which  defendant  excepted  ; 
that  if  plaintiffs  had  notice  of  such  fact  or  knowledge  of  facts  suffi- 
cient to  put  them  upon  inquiry  in  respect  thereof,  and  neglected  to 
make  it,  the  verdict  must  be  for  the  defendant. 

Defendant's  counsel  requested  the  court  to  charge  the  jury,  that  in 
case  they  were  satisfied  from  the  evidence  that  defendant  at  the  time 
of  the  purchases  in  question  was  not  actually  engaged  in  business  on 
her  own  account,  no  recovery  could  be  had  against  her  in  this  action. 
The  court  refused  so  to  charge,  and  defendant  excepted.  The  jury 
found  a  verdict  in  favor  of  the  plaintiffs. 

3Toses  EI)/,  for  the  appellant. 

Cyrus  Ldicton^  for  the  respondents. 

Allex,  J.  With  the  removal  of  common-law  disabilities  from  mar- 
ried women,  corresponding  liabilities  have  necessarily  been  imposed 
upon  them.  They  take  the  civil  rights  and  privileges  conferred,  sub- 
ject to  all  the  incidental  and  correlative  burdens  and  obligations,  and 
their  rights  and  obligations  are  to  be  determined  b}-  the  same  rules  of 
law  and  evidence  b}'  which  the  rights  and  obligations  of  the  other  sex 
are  determined  under  like  circumstances.  To  the  extent,  and  in  the 
matters  of  business  in  which  the}'  are  by  law  permitted  to  engage,  they 
owe  the  same  duty  to  those  with  whom  the}'  deal,  and  to  the  public, 
and  may  be  bound  in  the  same  manner  as  if  they  were  unmarried. 
Their  common-law  incapacity  cannot  serve  as  a  shield  to  protect  them 
from  the  consequences  of  their  acts,  when  the}'  have  statutory  capacity 
to  act. 

A  married  woman  is  sxn  Juris  to  the  extent  of  the  enlarged  capacity 
to  act  conferred  by  statute,  and  may  be  estopped  by  her  acts  and 
declarations,  and  is  subject  to  all  the  presumptions  which  the  law 
indulges  against  others  with  full  capacity  to  act  for  themselves. 
Sherman  v.  Elder,  24  N.  Y.,  381.  Where  there  is  no  legal  capacity 
to  contract,  a  party  will  not  be  estopped  by  falsely  representing  that  he 
has  capacity,  that  is,  the  incapacity  is  not  removed  by  any  fraudulent 


32  BODINE    V.    KILLEEN.  [CHAP.  I. 

representation  of  the  actor.  The  law  will  not  permit  one  legally  inca- 
pacitated to  do  that  indirectly  which  he  or  she  cannot  do  directly. 
That  is  especially  the  case  in  respect  to  infants  and  married  women 
laboring  under  tlie  common-law  disabilities,  the  law  imposing  the  dis- 
qualifications from  motives  of  public  policy,  and  for  the  safety  of  those 
regarded  as  weak,  and  needing  this  protection.  Keen  v.  Coleman,  30 
Penn.,  299  ;  Lowell  v.  Daniels,  2  Gray,  161  ;  Goulding  v.  Davidson, 
26  N.  Y.,  604.  But  the  reason  of  the  rule  ceasing  with  the  removal 
of  the  incapacity,  the  rule  falls.  In  the  management  and  control  of  her 
separate  propert}',  when  acting  by  agents,  a  feme  covert  is  answerable 
for  the  frauds  of  her  agent  while  acting  within  the  scope  of  the  agenc}", 
although  the  fraud  may  be  without  her  knowledge  or  assent.  Baum 
V.  Mullen,  47  N.  Y.,  577.  By  statute  (Laws  of  1860,  chap.  90)  a 
married  woman  ma}-  carry  on  an\'  trade  or  business  on  her  sole  and 
separate  account,  and  the  earnings  from  her  trade  or  business  are  her 
sole  and  separate  property,  and  she  may  sue  and  be  sued  in  all  matters 
having  relation  to  her  sole  and  separate  propertj',  in  the  same  manner 
as  if  she  were  sole.  She  has  all  the  legal  capacity  to  do  every  act  inci- 
dent to  the  business  or  trade  in  which  she  ma}'  engage  which  a  feme 
sole  would  have,  that  is,  full  legal  capacity  to  transact  the  business, 
including,  as  incidents  to  it,  the  capacity  to  contract  debts  and  incur 
obligations  in  any  form,  and  b}'  any  means,  b}'  which  others  acting  siii 
juris  can  assume  responsibilitj'. 

This  defendant,  for  many  j^eai's  prior  to  May,  1869,  had  been  doing 
business  in  New  York  City  as  a  retail  grocer,  buying  her  goods  of  the 
plaintiffs  on  credit.  During  most  of  the  time,  and  until  some  time  in 
the  year  1868,  her  husband  had  acted  as  her  agent  in  making  the  pur- 
chases and  payments.  The  husband  was  taken  ill  in  1868,  and  from 
that  time  she  made  the  purchases  and  payments  to  the  plaintiffs,  but 
there  was  no  revocation  of  the  agency  of  the  husband.  About  the  first 
of  May  she  transferred  the  business  to  her  husband,  who  subsequently 
carried  it  on  at  a  different  place  in  the  same  city,  and  bought  the  bills 
of  goods  for  whicli  action  is  brought  during  the  month  of  May.  The 
jury  have  found  that  there  was  no  notice  to  the  plaintiffs  of  the  change 
in  the  business,  and  that  they  had  no  knowledge  of  it.  Credit  was  in 
fact  given  to  the  defendant,  and  not  to  her  husband.  The  plaintiffs 
had  the  right  to  presume  that  the  business  of  the  defendant,  and  the 
agency  of  her  husband  in  respect  to  it,  continued  until  actual  notice  of 
change  in  the  business,  and  a  revocation  of  the  agenc}'.  SuflTering  the 
plaintiffs  to  act  upon  this  presumption,  she  is  estopped  from  alleging 
the  contrary.  She  had  capacity  to  continue  the  business  in  which  she 
had  been  engaged,  and  whether  she  expressly  represented  to  the  plain- 
tiffs that  the  business  was  still  hers  and  her  husband  was  her  agent,  or 
the  facts  were  legally  and  naturally  inferable  from  her  acts,  or  her 
silence,  is  immaterial.  She  is  bound  by  the  appearances  which  she  has 
given  to  the  transaction,  and  upon  the  faith  of  which  others  have  acted, 
up  to  the  limits  of  her  legal  capacit}'  to  act.     In  other  words,  to  the 


SECT.  IV,]  combes'  case.  33 

extent  of  her  legal  capacity,  the  apparent  authority  of  the  husband  to 
act  for  and  bind  her  must  be  taken  as  the  real  authority,  so  far  as 
others  have  been  induced  to  act  upon  it,  and  have  parted  with  their 
property  upon  the  faith  of  it  It  is  simply  because  tlie  defendant  liad 
the  power  to  contract  the  debt  for  which  this  action  is  brouglit,  that 
she  may  be  estopped  l)y  her  acts  from  disputing  iier  liabihty,  and  the 
existence  of  this  capacity  takes  the  case  out  of  the  principle  of  the 
authorities  relied  upon  by  the  counsel  for  the  appellant.  This  is 
the  only  question  presented  by  the  record,  or  urged  by  the  appellant, 
although  it  is  made  the  subject  of  several  exceptions  in  different  forms 
upon  the  trial.     The  case  was  well  disposed  of  at  the  circuit. 

The  liability  of  the  defendant  does  not  depend  upon  the  fact  that  she 
was  actually  carrying  on  a  business  or  trade  on  her  sole  and  separate 
account,  but  upon  her  capacity  to  do  so,  with  the  other  circumstances 
establishing  her  liability. 

The  judgment  must  be  alllrmed. 

All  concur.  Judgment  affinned. 


SECTION  IV. 

What  Acts  can  be  done  through  an  Agent. 

COMBES'    CASE. 

Common  Pleas.     1G13. 

[9  Co.  75«.] 

In  replevin  by  William  Atlee,  against  Daniel  Banks  and  Thomas 
Osborn,  of  taking  of  his  cattle  at  Harraonsworth,  in  a  place  called  Wal- 
nut-tree Close,  in  the  county  of  Middlesex,  «&;c.  Which  plea  began 
Trin.  8  Jac.  Reg.  Rot.  330.  Upon  the  pleading,  and  issue  joined,  and 
special  verdict  given,  the  case  was  such.  Thomas  Combes,  copyholder 
in  fee  of  ten  acres  of  pasture  in  H.  of  the  manor  of  Harmoiisworth,  in 
the  county  of  Middlesex,  by  his  deed  22  November,  5  E.  6,  consti- 
tuted and  ordained  William  Combes  and  Stephen  Erlie,  two  copyhold 
tenants  of  the  same  manor,  his  lawful  attornies,  to  surrender  vice  & 
nomine  suo  to  the  lord  of  the  said  manor,  the  said  ten  acres  of  pasture 
to  the  use  of  John  Nicholas  and  his  heirs,  and  afterwards  at  a  Court 
held  of  the  said  manor  8  Julii  anno  6  E.  6,  the  said  attornies  tune 
tenentes  dom*  per  copiam  Rot'  Cur'  in  eadem  Cur'  ostenderunt  scrip- 
turn  p  reed'  gerens  daf  prcBdicf  22  Nov'  anno  5,  supradicto,  et  iidem 
Willielmus  et  Stephanus  authoritate  eis  per  prced'  literam  attornatus 
doff  in  plena  cur'  sursum  reddiderunt  in  maims  doni'  prced"  decern 
fwras  pasturcB  ad  opus  tb  usum  prced'  Johannis  N^icholas  hceredum  et 

3 


34  combes'  case.  [chap,  l 

assignatorum  suorum,  who  was  at  the  same  court  admitted  accord- 
ingly ;  and  that  within  the  said  manor  there  was  not  any  custom  to 
surrender  copyhold  lands,  &c.,  b}'  letter  of  attorney,  either  in  court  or 
out  of  court.  And  if  the  said  surrender  by  letter  of  attorne}-  of  the 
said  lands  held  by  copy,  &c.,  was  good  or  not,  was  the  doubt,  which 
the  jury  referred  to  the  consideration  of  the  court.  And  this  case  was 
argued  at  the  bar,  in  Michaelmas,  Hilary,  and  Easter  terms,  and  in 
this  term,  and  in  this  it  was  also  argued  by  the  justices  at  the  Bench  ; 
and  in  this  case  two  points  were  moved:  1.  If  a  surrender  could  be 
made  bj'  force  of  the  letter  of  attorne}' ;  2.  If  the  attorneys  had  pur- 
sued their  authority. 

As  to  the  first,  it  was  unanimousl}'  agreed  bj-  all  the  judges  in  their 
several  arguments,  that  the  surrender  in  the  case  at  bar  made  b}'  letter 
of  attorney  was  good  ;  and  their  reason  was,  because  ever}'  copyholder 
having  a  customary  estate  of  inheritance  may,  de  comimmi  Jure,  with- 
out an}'  particular  custom,  surrender  his  lands  held  by  cop^^  in  full 
court,  and  therefore  in  pleading  the  copyholder  need  not  allege  a  cus- 
tom within  the  manor  to  surrender  in  court ;  for  that  which  is  the 
usage /)er  totatn  Angliam  is  the  common  law  as  it  is  held  in  34  H.  8 
Br.  Custom  59,  &  34  H.  8,  Dy.  54,  qxiod  hahetur  co?isuetudo  inter 
mercatores  per  totam  Angliam,  <&c.,  is  no  good  manner  of  alleging 
a  custom,  for  that  is  the  common  law  ;  and  in  the  Book  of  Entries, 
Tit.  Tresp.  Divisione  Copyhold  1,  f.  568,  no  custom  is  alleged  to  enable 
a  copyholder  to  surrender  in  full  court,  no  more  than  that  a  copyholder 
ma}'  make  a  lease  for  one  year  ;  because  that  he  ma}'  do  b}-  the  general 
custom  of  the  realm,  which  is  the  common  law,  vide  Bracton,  lib.  2,  c.  8. 
Then  if  a  copyholder  ma}'  surrender  his  estate  in  court  by  the  general 
custom  of  the  realm,  which  is  the  common  law,  from  thence  it  follows 
that  he  may  do  it  by  attorney,  as  a  thing  incident  by  the  common  law : 
and  that  will  more  clearly  appear  if  the  reason  of  such  things  which  a 
man  cannot  do  by  attorney  be  well  considered.  And  therefore  if  a  man 
has  a  bare  authority  coupled  with  a  trust,  as  executors  have  to  sell 
land,  they  cannot  sell  by  attorney ;  but  if  a  man  has  authority,  as 
absolute  owner  of  the  land,  there  he  may  do  it  by  attorney,  as  Cestui 
que  use  might  after  the  statute  of  1  R.  3,  and  before  the  statute  of  27 
H.  8,  for  Cestui  que  use  had  an  absolute  authority  to  dispose  of  the 
land  at  his  will,  without  any  confidence  reposed  in  him,  as  appears  in 
11  Eliz.,  Dyer,  283,  and  there  a  judgment  is  cited  in  25  H.  8  accord- 
ingly, against  the  opinion  of  some  judges  in  9  H.  7.  24.  But  in  the 
case  at  bar,  the  copyholder  has  a  customary  estate  of  inheritance,  and 
not  an  authority  or  power  only.  Also  there  is  a  difference  betwixt 
a  general  absolute  power  and  authority  as  owner  of  the  land,  as  afore- 
said, and  a  particular  power  and  authority  (by  him  who  has  but  a 
particular  interest)  to  make  leases  for  life  or  years.  And  therefore  if 
A.  be  tenant  for  life,  the  remainder  in  tail,  &c.,  and  A.  has  power 
to  make  leases  for  twenty-one  years,  rendering  the  ancient  rent,  «fec., 
he  cannot  make  a  lease  by  letter  of  attorney  by  force  of  his  powert 


SECT.  IV.]  combes'  case.  35 

because  be  has  but  a  particular  power,  which  is  personal  to  him ;  and 
so  was  it  resolved  in  the  case  of  the  Lady  Greshatn  at  the  assizes  in 
Suffolk  in  quadrageslnV  24  El.  by  Wra^'  and  Anderson,  Chief  Jus- 
tices, Justices  of  Assise  there.  Also  there  are  some  things  personal, 
and  so  inseparably  annexed  to  the  person  of  a  man,  that  he  cannot  do 
them  by  another,  as  doing  of  homage  and  fealt}' :  so  it  is  held  in  33 
E.  3,  Trespass  2o3,  the  lord  may  beat  his  villain  for  cause,  or  without 
cause,  and  the  villain  shall  not  have  any  remedy  ;  but  if  the  lord  com- 
mands another  to  beat  his  villain  without  cause,  he  shall  have  an  action 
of  battery  against  him  who  beats  him  in  such  case.  So  if  the  lord 
distrains  the  cattle  of  his  tenant,  although  nothing  be  behind,  the  ten- 
ant for  the  respect  and  duty  which  belong  to  the  lord,  shall  not  have 
trespass  vi  et  armis  against  him  :  but  if  the  lord  commands  his  bailiflf 
or  servant  in  such  case  to  distrain  where  nothing  is  behind,  the  tenant 
shall  have  an  action  of  trespass  ci  et  armis  against  the  bailiff  or  ser- 
vant.    2  U.  4.  4.  a.  11  H.  4.  78.  b.  1.  H.  G.  6.  a.  9  II.  7.  14.  a. 

Littleton,  in  his  chapter  of  Burgage,  holds  that  where  in  a  borough 
be  who  is  seised  of  lands  in  fee  may  devise  b}'  custom,  there  the  owner 
of  such  land  ma}-  devise  that  bis  executors  shall  sell,  which  they  shall 
do  as  attornies  to  him,  3  E.  3.  Coron.  310.  by  the  custom  of  a  manor 
a  freehold  will  pass  from  one  to  another  by  surrender  in  court,  against 
the  will  of  the  lord,  and  where  the  custom  is  such,  the  tenant  may  do 
it  b}'  attorney',  vide  14  H.  4.  1.  a.  by  Hankford,  &  vide  19  Ass.  p.  9. 

And  it  was  said,  as  he  to  whose  use  a  surrender  is  jnade  nia}"  be 
admitted  by  attorney',  so  a  copyholder  may  surrender  by  attornc}'  in 
full  court ;  and  the  case  of  him  to  whose  use  seems  the  stronger  case, 
because  he  who  is  to  be  admitted  is  to  do  fealt}-,  which  none  can  do 
fealt}'  but  he  who  shall  be  admitted,  and  therefore  in  such  case  the 
lord  may  refuse  to  admit  him  by  attorney  ;  but  if  he  admits  him  by 
attorney,  it  is  good  enough. 

But  Hil.  28  Eliz.  in  Chapman's  case  it  was  held  in  the  King's  Bench 
that  where  the  custom  of  a  manor  is,  that  the  copyholder  out  of  court 
may  surrender  into  the  bands  of  the  lord  of  the  manor  b}'  the  hands  of 
two  customary  tenants,  who  in  effect  are  but  instruments  or  attornies 
of  the  copyholder  to  take  his  surrender,  that  in  such  case  the  cop}'- 
holder  by  his  attorney  cannot  surrender  into  the  bands  of  the  lord  by 
the  hands  of  two  copyhold  tenants  ;  for  inasmuch  as  the  surrender  in 
such  case  ought  to  be  warranted  b}'  the  custom,  tlie  surrender  without 
special  custom  to  warrant  it  by  attorney  will  not  be  good.  Also  that 
was  upon  the  matter  by  attorney  to  make  a  surrender  by  others  who 
are  but  attornies,  for  that  is  not  warranted  by  the  particular  custom  of 
the  manor  to  make  a  surrender  out  of  court.  But  in  the  case  at  bar 
the  common  law,  and  no  particular  custom,  warrants  the  surrender, 
and  therefore  it  may  well  be  made  according  to  the  rule  and  reason  of 
the  common  law  by  attorney.  But  it  was  resolved,  that  the  attorney 
ought  to  pursue  the  manner  and  form  of  the  surrender  in  all  points 
according  to  the  custom,   as   the   copyholder  himself  ought  to  have 


36  combes'  case,  [chap,  l 

done  ;  as  if  the  surrender  by  the  custom  ought  to  be  b}'  the  rod,  or  by 
any  other  thing,  or  in  an}-  other  manner,  the  attorney  ought  to  pursue 
it.  And  the  Chief  Justice  said  that  the  style  of  a  copyholder  imports 
three  things:  1.  Nomen,  his  name.  2.  Originem,  his  commence- 
ment. 3.  Titul,  his  assurance.  His  name  is  tenant  by  copy  of  court- 
roll,  for  his  name  is  not  tenant  by  court-roll,  but  by  copy  of  court-roll, 
who  is  the  sole  tenant  in  law  that  holds  by  copy  of  any  record,  char- 
ter, deed,  or  any  other  thing.  2.  His  commencement,  ad  voluntatem 
domini;  for  at  the  beginning  he  was  but  tenant  at  the  will  of  the  lord. 
3.  His  title  or  assurance  secundum  consuetudinem  manerii,  for  the 
custom  of  the  manor  has  fixed  his  estate,  and  assured  the  land  to  him 
so  long  as  he  doth  his  services  and  duties,  and  performs  the  customs 
of  the  manor.  And  therefore  Danby  saith  in  7  E.  4.  19  a.  that  bj'  the 
custom  he  is  as  well  inheritable  to  have  the  land,  as  tenant  to  hold  his 
freehold  by  the  common  law.  And  it  was  resolved  that  this  case  was 
stronger,  because  the  letter  of  attorne}'  was  made  to  those  who  were 
tenants  by  copy,  &c.,  of  the  said  manor.  But  it  was  agreed  that 
where  an  infant  at  the  age  of  fifteen  years  may  make  a  feoffment  that 
he  cannot  do  it  by  attorney,  because  a  custom  which  enables  a  person 
disabled  by  the  law  ought  to  be  pursued,  and  an  infant  can  do  nothing 
to  pass  anything  out  of  him  by  attorne}' :  vide  11  H.  4.  33.  a.  and  it 
would  be  hard  if  men  in  prison,  or  sick,  or  beyond  the  sea,  could 
not  make  surrenders  of  their  lands  held  b^'  copy  for  payment  of  their 
debts,  or  preferment  and  advancement  of  their  wives  and  children, 
«&:c.  Nbta,  reader,  this  is  the  first  case  that  I  have  known  which 
was  adjudged  in  this  point. 

2.  It  was  resolved  that  when  an}'  has  authority,  as  attorne}-,  to  do 
any  act,  he  ought  to  do  it  in  his  name  who  gives  the  authority  ;  for  he 
appoints  the  attorne}'  to  be  in  his  place,  and  to  represent  his  person ; 
and  therefore  the  attorne}'  cannot  do  it  in  his  own  name,  nor  as  his 
proper  act,  but  in  the  name,  and  as  the  act  of  him  who  gives  the 
authority.  And  where  it  was  objected  that  in  the  case  at  bar,  that  the 
attornies  have  made  the  surrender  in  their  own  names  ;  for  the  entr}'  is 
Quod  iidem  Williehmis  et  Stepha^ius,  &c.,  sxirsum  reddiderunt^  &c. 
It  was  answered  and  resolved,  per  totam  curiam,  that  they  have  well 
pursued  their  authorit}- :  for  first  they  showed  their  letter  of  attorne}', 
and  then  they  authoritate  eis  per  prced'  litera7n  attornaV  daf  siirsum 
reddiderunt,  &c.,  which  is  as  much  as  to  say,  as  if  the}"  had  said,  we 
as  attornies  of  Thomas  Combes,  surrender,  &c.,  and  both  these  ways 
are  suflBcient ;  as  he  who  has  a  letter  of  attorney  to  deliver  seisin  saith, 
I  as  attorney  to  J.  S.  deliver  you  seisin  ;  or  I  by  force  of  a  (this)  letter 
of  attorney  deliver  you  seisin ;  and  all  that  is  well  done,  and  a  good 
pursuance  of  his  authority  :  but  if  attornies  have  power  by  writing  to 
make  leases  by  indenture  for  years,  &c.,  they  cannot  make  indentures 
in  their  own  names,  but  in  the  name  of  him  who  gives  them  warrant. 
But  if  a  man  by  his  will  in  writing  devises  that  his  executors  shall  sell 
his  land,  and  dies,  there  the  executors  in  their  own  name  may  sell  the 


SECT.  IV.]  HYDE   V.    JOHNSON.  37 

land  for  necessit}",  because  he  who  gives  them  authority  by  his  will 
(which  takes  effect  after  liis  death)  is  dead  ;  and  yet  in  such  case  the 
vendee  is  m  by  the  devisor. 


HYDE  V.   JOHNSON. 
Common  Pleas.     1836. 

[2  Bing.  N.  C.  776.] 

In  this  action  the  plaintiff,  in  order  to  recover  a  debt  barred  by  the 
Statute  of  Limitations,  offered  in  evidence  at  tlie  trial  before  the  under- 
sheriff,  a  letter  written  by  the  defendant's  wife,  in  her  husband's  name, 
at  his  request,  offering  to  pay  the  debt  by  instalments,  and  sent  by  him 
to  the  plaintiff. 

The  evidence  was  objected  to  as  not  signed  ''  by  the  party  cliargeable 
thereby,"  within  tlie  meaning  of  9  G.  4.  c.  14,  §  1  ;  but  the  under- 
sheriff  received  it,  and  a  verdict  was  taken  for  the  plaintiff  with  leave 
for  the  defendant  to  move  to  set  it  aside,  and  enter  a  nonsuit  instead, 
if  the  court  should  be  of  opinion  that  the  letter  ought  not  to  have  been 
received.     Accordingly, 

Chilton  having  obtained  a  rule  nlH  to  that  effect, 

Byles  showed  cause.  It  is  true  the  statute  requires  the  acknowledg- 
ment to  be  signed  b}'  the  party  chargeable  thereby,  and,  except  in  §  7, 
where  it  recites  the  statute  21  Jac.  1,  c.  16,  does  not  employ  the  word 
"  agent ;  "  but  a  man's  agent  is  as  much  implied  in  the  mention  of  himself 
as  his  executor  or  administrator ;  and  great  inconvenience  would  ensue 
if  a  party  were  not  allowed  in  all  cases  to  bind  himself  by  the  recog- 
nized acts  of  his  agent.  According  to  that  construction  of  the  statute, 
a  party  unable  to  write  would  never  be  capable  of  making  a  binding 
acknowledgment  of  a  debt.  In  Whippy  v.  Hilary,  3  B.  &  Adol.  399, 
it  was  held  that  the  Statute  of  Limitations  was  not  barred  b^'  a  letter 
in  which  the  defendant  stated  "  that  family  arrangements  had  been 
making  to  enable  him  to  discharge  the  debt ;  that  funds  had  been  ap- 
pointed for  that  purpose,  of  which  A.  was  trustee  ;  and  that  defendant 
had  handed  the  plaintiff's  account  to  A.  ;  that  some  time  must  elapse 
before  payment,  but  that  defendant  was  authorized  by  A.  to  refer  the 
plaintiff  to  him  for  any  further  information  ;  "  but  that  was  because  by 
the  statute  9  G.  4.  the  acknowledgment  must  be  signed  by  the  party 
chargeable  tliereby  ;  and  such  letter  did  not  charge  the  defendant. 

Kdly  and  Chilton  in  support  of  the  rule. 

If  the  signature  of  an  agent  be  admitted,  parol  evidence  must  also 
be  admitted  to  prove  the  agent's  authority,  and  then  all  the  inconven- 
ience will  be  reproduced  which  the  statute  was  passed  to  obviate.  And 
after  the  recital  of  the  statute  21  Jac.  1,  c.  16,  which  contains  the 
word  ''  agent."  the  omission  of  that  word  in  the  enacting  part  of  9  G.  4. 


o 


38  HYDE   V.   JOHNSON.  [CHAP.  1. 

c.  14,  cannot  be  esteemed  accidental.  The  object  no  doubt  was  to 
exclude  the  temptation  to  i)erjury  in  the  proof  of  agenc}-.  Where  a 
written  acknowledgment  has  been  destroyed,  parol  evidence  may  be 
given  of  its  contents  :  Haydon  v.  Williams,  7  Bing.  163  ;  but  that  is  on 
the  general  principle  which  admits  secondary  evidence  where  primary 
has  existed,  but  is  no  longer  forthcoming.  Here  the  statute  meant  to 
exclude  the  question  of  agency  altogether.  As  to  the  difficulty  sug- 
gested with  respect  to  parties  who  may  be  unable  to  write,  they  may  at 
least  affix  their  mark,  as  in  otlier  cases.  In  Lyde  v.  Barnard,  3  Ci-.  M. 
&  Ros.  101,  Lord  Abinger,  C.  B.,  says:  "The  obvious  policy  of  this 
statute  was  to  prevent  that  fraud  and  perjury  which  had  been  found  by 
experience,  or  was  thought  probable,  to  arise  from  trusting  to  evidence 
of  less  authority  than  tliat  of  a  written  document." 

Cu)'.  adv.  vult. 

TiNDAL,  C.  J.  Tlie  short  question  in  this  case  is,  whether  a  letter 
offering  to  pay  a  debt  by  instalments  written  b}-  the  defendant's  wife  to 
the  plaintiff  in  her  husband's  name,  and  at  his  request,  and  afterwards 
sent  by  him  to  the  plaintiff,  is  a  sufficient  acknowledgment  or  pronn'se 
"  made  or  contained  by  or  in  some  writing,  signed  b}-  the  party  cliarge- 
able  thereb}-,"  within  the  meaning  of  the  9  G.  4.  c.  14,  §  1. 

The  question  turns  entirely  on  the  construction  of  the  statute,  and  it 
amounts  in  other  words  to  this, —  does  the  statute  9  G.  4.  c.  14  extend 
to  a  writing  signed  b}-  an  agent  of  the  party,  or  is  it  confined  to  a 
writing  signed  by  the  party  himself?  Looking  at  the  words  of  the 
statute,  it  is  confined  in  terms  to  a  writing  "  signed  by  the  part}' 
chargeable  thereby."  And  as  the  effect  of  that  statute  is,  for  the  first 
time,  to  introduce  a  legislative  exception  into  the  statute  of  21  Jac.  1, 
c.  16,  and  thereby  pro  tanto,  to  repeal  it,  we  do  not  feci  ourselves  justi- 
fied in  extending  such  exception  beyond  the  plain  and  unambiguous 
meaning  of  the  words  employed  therein.  The  legislature  has,  in  many 
statutes,  given  equal  efficacy  to  written  instruments  when  signed  by 
the  parties,  and  when  signed  by  their  agents  ;  but  in  all  those  cases 
express  words  have  been  employed  for  that  purpose.  The  Statute  of 
Frauds,  in  its  third  section,  requires  for  the  purposes  of  that  section,  a 
note  in  writing  to  be  signed  by  the  party,  "or  their  agents  thereunto 
lawfully  authorized  by  writing ;  "  in  the  fourth  section,  a  memorandum 
or  note  in  writing  is  required,  "  signed  by  the  party  to  be  charged 
therewith,  or  some  other  person  thereunto  by  him  lawfully  authorized  ;  " 
in  the  fifth  section,  a  devise  of  lands  is  required  to  be  made  in  writing 
to  be  "signed  by  tlie  party  so  devising,  or  by  some  other  person,  in 
his  presence,  and  by  his  express  directions  ;  "  in  the  seventh  section,  a 
declaration  of  trusts  of  any  lands  shall  be  in  writing  "  signed  by  the 
party ; "  and  lastl}',  the  seventeenth  section  requires  upon  the  sale  of 
goods,  that  there  shall  be  some  note  or  memorandum  in  writing  of  the 
bargain,  "  signed  by  the  parties  to  be  charged  by  such  contract,  or 
their  agents  thereunto  lawfully  authorized."  It  appears,  therefore,  that 
the  legislature  well  knew  how  to  express  the  distinction,  not  onlj-  b<j 


SECT.  IV.]  IN    RE    WHITLEY    PARTNERS.  39 

tween  a  signature  by  tlie  party,  and  a  signature  by  his  agent :  but  also 
to  describe  the  different  modes  by  which  agents  for  diilerent  purposes 
are  to  be  appointed.  Tiie  same  observation  arises  upon  referring  to 
the  more  recent  statutes,  3  &  4  W.  4.  c.  2,  §  42,  and  c.  42,  §  5.  When, 
therefore,  we  find  in  the  statute  now  under  consideration  that  it  ex- 
pressly mentions  the  signature  by  tlie  part}-  onh',  we  think  it  a  safer 
construction  to  adliere  to  the  precise  words  of  the  statute,  and  that  we 
should  be  legislating,  not  interpreting,  if  we  extended  its  operation 
to  writings  signed,  not  by  the  party  chargeable  thereby',  but  by  his 
agent.  And  we  feel  ourselves  the  more  compelled  to  adopt  this  con- 
struction, as  we  find  the  seventh  section  of  this  same  statute  recites  the 
seventeenth  section  of  the  Statute  of  Frauds  ;  so  that  the  legishiture 
must  Iiave  had  in  their  view,  at  the  very  time  of  passing  this  statute, 
and  therefore  must  have  intended,  the  distinction  between  writings 
signed  by  a  party,  or  signed  by  his  agent. 

Some  inconveniences  have  been  pressed  in  the  course  of  the  argu- 
ment upon  our  attention,  in  cases  where  a  total  inabilit}'  of  parties  to 
sign  may  exist ;  but  the  nature  of  the  signature  which  is  necessary  to 
comply  with  the  requisites  of  the  statute  is  such  as  to  make  it  almost 
impossible  to  suppose  a  case  in  which  a  party  could  not  make  such  a 
signature  as  would  satisfy  the  statute.  And,  after  all,  in  construing  a 
statute,  we  must  not  look  to  cases  of  very  rare  and  singular  occurrence, 
but  to  those  of  ever}'  day's  experience ;  and  whatever  may  be  the 
consequence,  we  must  interpret  the  statute  according  to  the  plain 
import  of  the  language  employed  in  it. 

Upon  the  whole,  we  think  in  this  case,  the  latter  was  not  a  sufficient 
writing  signed  by  the  party,  to  take  the  case  out  of  the  operation  of  the 
enactments  of  21  Jac.  1.  c.  16.     And,  therefore,  direct  a  nonsuit. 

Rule  absolute} 


In  re  WHITLEY  PARTNERS,  Limited. 
Court  of  Appeal.     1886. 

[32  Ch.  D.  337.] 

This  company  was  registered  on  the  10th  of  November,  1873,  as 
a  company  limited  by  shares.  The  memorandum  of  association  pur- 
ported to  be  signed  by  eight  persons,  the  name  of  Mr.  Callan  appearing 
last,  as  a  subscriber  for  100  shares;  and  the  articles  of  association 
purported  to  be  signed  by  him  in  respect  of  the  same  number  of  shares. 
Tlie  company  was  unsuccessful  and  was  ordered  to  be  wound  up.  Mr. 
Callan  was  put  on  the  list  of  contributories  for  100  shares,  and  about 

1  The  doctrine  of  this  case  was  abrogated  by  the  Mercantile  Law  Amendment  Act 
19  &  20  Vict.  c.  97,  §  13. 

See  Swift  v.  Jewsbury,  L.  K.  9  Q.  B.  301,  310-313,  316  (1874).— Ed. 


40  IN   KE    WHITLEY    PARTNERS.  [CHAP.  L 

the  end  of  May,  1880,  received  notice  of  a  call.  He  placed  the  matter 
in  the  hands  of  his  then  solicitor,  and,  as  he  deposed,  heard  no  more 
about  it  till  December,  1882,  when  he  was  served  with  orders  for  pay- 
ment of  calls.  He  disputed  his  liabilit}-,  alleging  that  he  had  never 
agreed  to  take  shares  in  the  companj'  nor  signed  the  memorandum  or 
articles. 

On  investigation  it  appeared  that  the  signature  of  Mr.  Callan 
to  the  memorandum  and  articles  was  not  in  his  own  handwriting,  but 
had  been  written  b\-  a  Mr.  Oakley,  who  had  simply  signed  Mr.  Callan's 
name  without  anything  to  indicate  that  the  signature  was  not  written 
b}'  Mr.  Callan,  but  by  some  other  person  as  his  attorney  or  agent, 
Mr.  Oakle}'  deposed  that  in  October,  1873,  he  received  from  Mr.  Callan 
authorit}',  verbally  and  by  telegram,  to  sign  Mr.  Callan's  name  to  the 
memorandum  and  articles,  but  it  was  not  alleged  that  any  authority 
was  given  by  deed,  nor  was  an}'  written  authority  produced,  and  Mr. 
Callan  denied  having  given  an}'  authority  at  all.  Vice-Chancellor 
Bacon  having  refused  to  remove  the  name  of  Mr.  Callan  from  the  list 
of  contributories,  Mr.  Callan  appealed. 

Theodore  Hibton,  for  the  Appellant. 

Harten,  Q.  C,  and  Oswald,  contra,  were  not  called  upon. 

Cotton,  L.  J.  This  is  an  appeal  from  a  decision  of  Vice-Chancellor 
Bacon,  who  has  refused  to  remove  the  name  of  the  appellant,  Mr. 
Callan,  from  the  list  of  contributories.  It  is  conceded  that  his  signature 
to  the  memorandum  and  articles  was  not  written  b}'  himself,  but  the 
liquidator  contends  that  it  was  written  by  his  authorit}'.  The  a))pellant 
says  that  this  is  not  enough,  even  if  there  was  authority,  which  he 
denies.  The  case  turns  upon  these  questions,  there  being  no  other 
evidence  that  Mr.  Callan  ever  agreed  to  take  shares.  Now  there  is 
nothing  in  the  Companies  Acts  expressl}'  requiring  that  the  memoran- 
dum and  articles  must  be  signed  by  the  subscribers  with  their  own  hands, 
but  it  is  contended  by  the  appellant  that  the  Act  according  to  its  true 
construction  requires  personal  signature.  Sect.  6  of  the  Companies 
Act,  18G2,  provides  that  "  any  seven  or  more  persons  associated  for 
any  lawful  purpose  ma}'  by  subscribing  their  names  to  a  memorandum 
of  association,  and  otherwise  complying  with  the  requisitions  of  this 
Act  in  respect  of  registration,  form  an  incorporated  company,"  and  by 
sect.  11  it  is  provided  that  the  memorandum  of  association  "shall 
be  signed  by  each  subscriber  in  the  presence  of,  and  attested  by,  one 
witness  at  the  least."  The  appellant  contends  that  as  nothing  is 
said  in  the  statute  about  signature  by  an  agent,  these  expressions 
must  mean  that  the  signature  is  to  be  affixed  by  the  subscriber  him- 
self. In  support  of  this,  Hyde  v.  Johnson,  2  Bing.  N.  C.  776,  is 
referred  to.  That  case  I  think  was  decided  on  the  special  ground 
that  the  enactment  which  the  court  was  then  considering  was  one  of  a 
series  of  enactments  which  made  a  distinction  between  a  man's  sign- 
ing by  himself  and  signing  by  an  agent,  and  it  was  therefore  con- 
sidered that  where  signature  by  an  agent  was  not  mentioned  the  Act 


SECT,  IV.]  IN    RE    WHITLEY    PARTNERS.  41 

required  signature  by  the  man  hiraself.  That  may  be  quite  right,  but 
in  the  present  case  the  enactment  we  have  to  construe  is  not  one  of  a 
series  of  enactments  some  of  wliich  refer  to  signature  by  an  agent,  and 
I  think  it  would  be  wrong  to  hold  that  an  enactment  simply  referring 
to  signature  is  not  satisfied  by  signature  by  means  of  an  agent. 
Suppose  seven  persons  sitting  round  a  table  with  a  view  to  signing  a 
document,  and  one  of  them  says  to  another,  "Sign  it  for  me,"  are 
we  to  say  that  tiie  signature  affixed  under  this  authority  is  insufficient? 
I  am  of  opinion  that  it  is  quite  effectual.  The  signature  in  the  present 
case  is  irregular,  for  it  ought  to  have  been  "P.  Callan,  by  Oakley  his 
attorne}- ; "  but  this  irreguhirit}-  will  not  make  the  signature  invalid  if 
there  was  authority  to  affix  it. 

It  was  urged  that  assuming  authority  to  have  been  given  it  was  not 
dul\'  given,  for  that  as  the  memorandum  of  association  is  equivalent 
to  a  deed,  the  authorit}'  to  sign  it  ought  to  have  been  given  by  deed. 
That  is  a  fallacv.  The  memorandum  has  for  certain  purposes  the  effect 
of  a  deed.  But  it  is  not  a  deed.  An  authoritv  to  sign  and  seal  an 
instrument  must  be  given  by  deed,  but  though  signature  of  the 
memorandum  is  made  by  the  Act  equivalent  to  signing  and  sealing,  the 
memorandum  is  not  signed  and  sealed.  The  authority  to  sign  it  there- 
fore need  not  be  given  by  deed. 

[His  Lordship  then  entered  into  a  consideration  of  the  evidence  on 
the  question  whether  Mr.  Callan  had  given  authority  to  sign  the 
memorandum,  and  stated  his  conclusion  to  be  that  such  authority  had 
been  given,  and  that  the  memor\-  of  Mr.  Callan,  who  had  been  much 
engrossed  by  political  matters  at  the  time,  was  defective  on  this 
subject.] 

BowEN,  L.  J.  I  am  of  the  same  opinion.  [His  Lordship  then  stated 
his  reasons  for  agreeing  with  the  conclusion  of  Lord  Justice  Cotton  as 
to  the  question  of  fact.] 

As  regards  the  question  of  law,  it  is  contended  by  the  Appellant 
that  it  is  not  sufficient  for  a  man  to  sign  the  memorandum  of 
association  by  an  agent,  but  that  he  must  sign  it  himself.  In  ever}' 
case  where  an  Act  requires  a  signature  it  is  a  pure  question  of  con- 
struction on  the  terms  of  the  particular  Act  whether  its  words  are 
satisfied  by  signature  b}'  an  agent.  In  some  cases  on  some  Acts  the 
courts  have  come  to  the  conclusion  that  personal  signature  was  re- 
quired. In  other  cases  on  other  Acts  they  have  held  that  signature 
by  an  agent  was  sufficient.  The  law  on  the  subject  is  thus  summed 
up  by  Blackburn,  J.,  in  Reg.  i\  Justices  of  Kent,  Law  Rep.  8  Q.  B. 
305,  307:  ''No  doubt  at  common  law,  where  a  person  authorizes 
another  to  sign  for  him,  the  signature  of  the  person  so  signing  is  the 
signature  of  the  person  authorizing  it ;  nevertheless  there  may  be  cases 
in  which  a  statute  may  require  personal  signature."  Quain,  J.,  then 
says.  "We  ought  not  to  restrict  the  common  law  rule  quifadt  per  nil  urn 
fadt  -per  se,  unless  the  statute  makes  a  personal  signature  indispen- 
sable."     Archibald,   J.,    savs  :    "I  think  this  case  comes    within  the 


42  BARR   V.   LAPSLEY.  [CHAP.  I. 

common  law  rule,  qui  facit  jier  alium  facit  2'>eT  se,  and  ihere  is  nothing 
in  the  statute  to  qualify  the  operation  of  that  maxim.  It  is  easy  to 
understand  that  there  may  be  cases  in  wliich  a  different  construction 
must  be  put  on  particular  statutes."  Hyde  v.  Johnson,  2  Bing.  N.  C. 
776,  was  decided  on  the  ground  that  Lord  Tcnterden's  Act  was  to  be 
read  along  with  the  Statute  of  Frauds,  which  expressly  refers  to 
signature  by  an  agent,  and  tliat  a  clause  which  contained  no  reference 
to  an  agent  was  therefore  to  be  held  to  require  personal  signature.  In 
the  present  statute  tliere  is  nothing  in  the  wa}'  in  whicli  the  memoran- 
dum of  association  is  dealt  with  to  show  that  the  Legislature  intended 
anything  special  as  to  the  mode  of  signature.  The  principle  of  Hyde 
V.  Johnson  therefore  cannot  be  invoked  in  this  case,  and  the  general 
rule  that  a  man  may  sign  b3'  an  agent  is  not  interfered  with.  I  agree 
with  Lord  Justice  Cotton  that  there  is  no  ground  for  requiring  the 
authority  to  sign  the  memorandum  of  association  to  be  given  by 
deed. 

Fry,  L.  J.     I  cannot  usefully  do  more  than  express  my  entire  con- 
currence in  the  judgments  of  the  Lords  Justices.^ 


SECTION  'V. 

Sow  an  Af/ent  is  appointed. 

{A)  Gf:NERAL  Pkinciples. 

BARR  V.  LAPSLEY. 
Supreme  Court  of  the  United  States.     1816. 

[1    Wheat.  151.] 

Appeal  from  the  Circuit  Court  of  the  District  of  Columbia.  This 
cause  was  argued  by  Jones.,  for  the  appellants  and  complainants,  and 
Harper,  for  the  respondents  and  defendants. 

Johnson,  J.,  delivered  the  opinion  of  the  court. 

The  object  of  this  bill  is  to  obtain  a  specific  performance  of  an  alleged 
agreement  to  receive  a  quantity  of  cotton  bagging,  at  a  specified  price, 
in  satisfaction  of  certain  judgments  at  law.  The  defendants  deny  that 
the  circumstances  proved  ever  rendered  the  agreement  final  and  obliga- 
tory upon  them  ;  and  this  is  the  principal,  perhaps  the  only,  question 
the  case  presents. 

It  appears  that  the  complainants  were  indebted  to  one  West,  who 
assigned  this  debt  (then  unliquidated),  together  with  the  residue  of  his 
estate,  to  Lapsley  et  al. ;  that  Lapsley  liquidated  the  debt  with  the 
Barrs,  and  took  their  notes  payable  at  different  periods,  making  up, 

1  And  see  Finnegan  v.  Lucy,  157  Mass.  439  (1892).  — Ed. 


SECT.  V.J  BARR   V.   LAPSLEY.  43 

together,  the  amount  clue.  These  notes  having  become  due,  and  judg- 
ment being  recovered  on  some  of  them,  in  October,  1811,  the  Barrs 
addressed  a  letter  to  Lapsley,  in  which  they  offer  to  pay  him  in  cotton 
bagging,  at  thirt3-three  cents  per  yard,  by  instalments,  at  certain 
periods.  On  the  ITtli  of  December,  in  the  same  year,  Lapsle}' 
answered  their  communication,  and  the  following  words,  contained  in 
that  letter,  are  all  that  tlie  court  deem  material  to  the  point  on  which  they 
propose  to  found  their  decision  :  "  We  are  willing  to  take  cotton  bag- 
ging in  liquidation  of  the  three  last  notes,  delivered  at  the  period  you 
propose,  but  not  at  the  price  you  offer  it."  ''  We  expect  that  you  give 
us  satisfactory  accounts  for  tlie  punctual  performance  of  your  engage- 
ments, and  to  tliis  effect  we  shall  direct  Mr.  M'Coun,  to  whom  we  pro- 
pose to  write  by  the  next  mail,"  On  another  passage  of  this  letter, 
and  a  letter  written  by  West,  on  the  18th  of  December,  it  has  been 
contended  that  certain  conditions  were  imposed  upon  the  Barrs,  which 
it  was  incumbent  upon  tliem  to  comply  with  before  the}-  could  claim 
the  benefit  of  the  offer  contained  in  Lapsley's  letter.  But,  as  the 
opinion  of  this  court  is  made  up  on  a  ground  whoU}'  unaffected  by  this 
question,  we  deem  it  unnecessary  to  notice  this  point.  It  appears  that 
Lapsley  never,  in  fact,  instructed  M'Coun  on  the  subject  of  this  letter 
of  the  17tli  of  December.  But  Warfield,  the  agent  of  the  Barrs  (who 
were  absent  from  home  on  the  receipt  of  that  letter),  supposing  his  prin- 
cipals to  be  referred  to  M'Coun  as  the  authorized  agent  of  Lapsley, 
notified  to  him  the  acceptance  of  Lapsley's  offer,  and  remained  under 
the  impression  that  the  agreement  had  become  final,  notwithstanding 
M'Coun's  declining,  altogether,  to  act,  for  want  of  instructions.  Laps- 
ley,  on  the  other  hand,  alleges  that  tlie  notification  of  acceptance  ought 
to  have  been  made  to  himself,  and  assigns  the  want  of  an  answer  from 
the  Barrs  as  his  reason  for  never  having  given  instructions  to  M'Coun. 
This  state  of  facts  presents  an  alternative  of  extreme  difficult}'.  On 
the  one  hand,  Lapsley,  b}'  writing  that  he  shall  direct  M'Coun,  by  the 
next  mail,  plainly  pointed  to  a  mode  of  expediting  the  conclusion  of  the 
agreement,  through  the  agency  of  a  representative  on  the  spot,  and  when 
he  intimated  his  intention  to  write  b}'  the  next  mail,  showed  that  it  was 
not  his  intention  to  await  Barr's  answer.  This  was  well  calculated  to 
delude  Barr  into  the  idea  that  Lapsley  would  recognize  no  notification 
but  that  which  should  be  made  to  M'Coun.  On  the  other  hand,  how 
far  could  M'Coun,  unempowered,  uninstructed  as  he  was,  legall}'  act, 
to  bind  Lapsle}'  by  his  acceptance  of  the  notification?  Or,  if  he  had 
received  instructions  from  Lapsley,  what  obligation  was  he  under  to 
have  undertaken  the  agency?  Under  the  pressure  of  this  dilemma, 
there  is  but  one  principle  to  which  the  court  can  resort  for  a  satisfac- 
tory decision.  Something  remained  for  Barr  to  do.  The  notification 
of  his  acceptance  was  necessary  to  fasten  the  agreement  upon  Lapsley. 
For  this  purpose,  he  very  rationally  addressed  himself,  in  the  first  place, 
to  M'Coun  ;  and  the  reference  to  Lapsley's  letter  would  have  been  a 
sufficient  excuse  for  not  returning  an  answer  until  a  reasonable  time 


44  MEADER  V.    PAGE.  [cHAP.  L 

had  elapsed  for  M'Coun  to  receive  the  expected  communication  from 
Lapsley.  But  when  he  found  M'Coun  uninstructed,  and  unwilling  to 
act  under  the  letter  addressed  to  Barr,  his  course  was  plain  and  une- 
quivocal. A  letter  to  Lapsley,  transmitted  by  the  mail,  would  have 
put  an  end  to  all  doubt  and  difficulty.  This  is  the  method  he  ought  to 
have  pursued,  and  for  not  having  pursued  this  course,  we  are  of  opinion 
that  the  bill  was  properly  dismissed  below. 

Decree  affirmed. 


MEADP:R  v.    page,  appellant. 
Supreme  Court  of  Vermont.     1866. 

[39  Vt.  306.] 

Book  account.  The  case  was  heard  upon  the  auditor's  report  at 
the  June  Term,  18G6,  Steele,  J.,  presiding,  when  judgment  was  ren- 
dered for  the  plaintiff;  exceptions  b}'  defendant.  In  respect  to  item 
number  four,  the  one  in  dispute,  cash  $11.00,  the  auditor  reported  as 
follows:  "It  appeared  that  the  defendant,  about  the  month  of 
October,  1862,  left  his  home  in  Ryegate  for  New  York,  and  has  since 
that  time  been  living  and  at  work  in  the  state  of  New  York,  a  con- 
siderable part  of  the  time,  being  at  home  several  months  at  a  time,  at 
several  different  times  since  leaving  home,  his  wife  and  family  remaining 
at  his  residence  at  Ryegate  ;  that  Mrs.  Page  has  kept  house  and  managed 
affairs  at  home  ;  that  the  defendant  has  from  time  to  time  sent  home 
money  to  his  wife  to  use  in  taking  care  of  the  family  ;  that  in  June, 
1863,  one  of  the  defendant's  children  died  at  Ryegate  ;  that  the  defend- 
ant was  at  home  at  the  time  and  agreed  with  one  Jenkins,  of  Bradford, 
to  furnish  a  set  of  gravestones  for  the  child,  and  also  a  set  for  the 
defendant's  father  (who  died  previously),  at  the  sum  of  $2.5.00.  The 
defendant  then  returned  to  New  York,  agreeing  to  send  home  money  to 
his  wife  to  pay  for  these  gravestones.  Jenkins  furnished  and  set  up 
the  gravestones,  as  agreed,  where  the}'  now  stand,  and  subsequent!}' 
the  defendant  sent  home  money  to  his  wife  to  pay  for  them.  It  so 
happened  when  the  money  was  sent  the  article  of  flour  was  rising  in 
price,  and  had  advanced  to  fifteen  dollars  per  barrel,  and  Mrs.  Page 
was  advised  that  it  would  advance  higher,  perhaps  to  $20.00,  and 
desiring  to  provide  a  supply  for  the  time  to  come,  bought  a  barrel,  at 
$15.00,  and  at  the  same  time  bought  several  other  articles  at  the 
store  for  family  use,  and  paid  out  of  the  money  so  sent,  and  had  n't 
enough  left  to  pay  for  the  stones,  when  Jenkins  should  call  for  it, 
which  was  soon  expected;  she  therefore  borrowed  $13.00  of  the  plain- 
tiff, and  when  Jenkins  came  she  paid  for  the  gravestones  therewith, 
and  with  other  money  she  had  left  on  hand.  Mrs.  Page  agreed  to  pay 
the  plaintiff  back  the  money,  when  she  borrowed  it,  in  two  or  three 
weeks,  and  he  called  on  her  for  the  money,  but  she  not  having  it  paid 


SECT,  v.]  HEADER   V.    PAGE.  45 

liirn  two  dollars  only,  and  the  balance,  eleven  dollars,  not  being  paid, 
the  plaintiff  subsequently  charged  to  the  defendant,  which  is  the  item 
No.  4,  in  his  account.  It  did  not  appear  to  what  extent  the  defend- 
ant gave  his  wife  authority  to  transact  business  at  home  ;  he  left  her 
there  to  manage  for  him  at  home,  what  might  be  necessary  to  be 
done,  considering  their  respective  situations,  and  the  defendant  testi- 
fied that  his  wife  took  care  of  business  pretty  well,  quite  as  well  as  the 
neighbors  generally  did,  and  would  have  done  very  well,  if  the  neigh- 
bors had  let  her  alone.  It  did  not  appear  that  he  ever  gave  her  any 
specific  instructions,  or  that  he  left  business  to  be  done  by  any  other 
person  than  his  wife.  lie  had  no  other  agent.  It  appears  that  Mrs. 
Page  took  care  and  got  along  at  home  by  her  own  efforts  and  with 
what  mone}'  her  husband  sent  or  gave  her  from  time  to  time.  It  did 
not  appear  that  the  defendant  ever  acknowledged  that  his  wife  bor- 
rowed anj'  mone}'  of  the  plaintiff  or  that  he  ever  promised  to  pay  the 
plaintiff." 

Leslie  &  Rogers,  for  the  defendant. 

A.  Underwood,  for  the  plaintiff. 

The  opinion  of  the  court  was  delivered  by 

Peck,  J.  In  relation  to  the  item  of  $11.00  in  the  plaintiffs  account, 
it  cannot  be  assumed  that  the  credit  was  given  by  the  plaintiff  to  the 
defendant's  wife  and  not  to  the  defendant.  The  auditor  does  not  so 
find,  and  the  facts,  in  the  absence  of  such  finding,  do  not  lead  to  that 
conclusion.  As  the  defendant  was  absent  at  work  in  New  York,  and 
only  occasionally  at  home,  and  his  wife  remaining  at  the  defendant's 
residence  in  Ryogate  with  his  famil}',  managing  his  affairs  at  home,  it 
is  probable  the  plaintiff  ma}'  have  expected  the  payment  would  be 
made  through  the  agency  of  the  wife.  But  this  does  not  show  that  the 
plaintiff  did  not  give  the  credit  to  the  husband,  especially  as  he  was 
sending  money  home  to  his  wife  from  time  to  time  as  the  wants  of  the 
family  and  the  necessity  of  his  business  affairs  left  in  charge  of  his  wife 
required.  The  credit  must  be  intended  to  have  been  given  in  fact  to 
the  defendant. 

But  it  is  insisted  that  the  wife  had  no  authority  to  bind  the  defend- 
ant in  the  transaction  of  borrowing  this  money.  This  proposition  is 
correct  if  it  is  to  depend  simply  on  the  implied  power  of  a  wife  arising 
from  the  legal  relation  of  husband  and  wife  without  reference  to  the 
attending  circumstances.  Nor  does  the  case  come  within  the  principle 
of  those  cases  where  the  husband  abandons  his  wife,  or  turns  her  away 
without  cause,  destitute  of  means  of  support ;  for  here  was  no  such 
state  of  facts.  Nor  is  any  express  authority  shown  to  borrow  mone^', 
either  generally  or  in  this  particular  instance.  But  it  is  conceded  by 
the  defendant's  counsel  that  a  wife  may  bind  the  husband  in  certain 
domestic  affairs,  such  as  are  usual  to  intrust  with  the  wife.  The  extent 
of  this  power,  however,  depends  very  much  on  the  attending  facts  and 
circumstances.  It  is  usually  more  extensive  in  case  of  the  absence 
of  the   husband  for  long  periods  of  time   than  when  he  is  at  home 


46  MEADER    V.    PAGE.  [CHAP.  I. 

managing  his  own  business.  But  upon  the  facts  reported  in  this 
case,  there  was  an  agenc}-  in  fact  arising  from  the  absence  of  the 
husband,  and  from  his  having  left  his  wife  with  the  care  of  the  family 
and  in  the  management  of  his  affairs  at  home.  This  agenc}',  howe^;er, 
was  not  unlimited.  The  power  must  be  construed  in  reference  to  the 
nature  and  extent  of  the  business  afiairs  entrusted  to  her  charge.  On 
this  point  the  report  is  not  very  full  or  explicit.  It  appears,  however, 
that  the  defendant's  wife  "  kept  house  and  managed  affairs  at  home, 
and  that  the  defendant  from  time  to  time  sent  home  money  to  his 
wife  to  use  in  taking  care  of  the  family,"  etc.  The  auditor  reports 
also  that  ''  it  did  not  appear  to  what  extent  the  defendant  gave  his 
wife  authority  to  transact  business  at  home  ;  he  left  her  there  to 
manage  for  him  at  home  what  might  be  necessary  to  be  done,  con- 
sidering their  respective  situations,"  and  that  the  defendant  testified 
that  his  wife  took  care  of  business  pretty  well,  quite  as  well  as  the 
neighbors  generally  did,  etc.  This  shows  that  the  defendant  gave  his 
wife  some  scope  for  the  exercise  of  her  judgment  in  his  business 
affairs.  Considering  that  she  borrowed  the  money  (the  $13.00)  to 
help  to  pay  a  debt  that  the  defendant  himself  contracted,  and  which 
he  directed  her  to  pa}',  and  which  she  did  pa}',  we  think  under  the 
circumstances  stated  in  the  report,  it  came  within  the  scope  of  her 
agency.  It  is  true  the  defendant  sent  his  wife  money  to  pay  that  debt 
for  the  gravestones  when  they  should  be  delivered  and  set  up,  but  as 
flour  was  rising  in  price,  and  she  being  advised  it  would  soon  be  still 
higher,  she  judged  it  prudent  and  good  economy  to  buy  a  barrel  of 
flour  for  the  family  with  a  portion  of  the  money,  which  she  did  at 
$15.00,  and  some  other  articles  at  the  store  for  family  use,  and  bor- 
rowed the  S13.00  to  make  up  with  what  she  had,  a  sum  sufficient  to  pay 
the  debt  for  the  gravestones.  The  flour  and  other  articles  were  for 
the  use  of  the  family,  and  must  be  intended  as  necessaries  in  kind  ; 
and  it  is  not  found  by  the  auditor  that  they  were  not  necessary,  in  fact, 
under  the  circumstances.  The  auditor  further  reports  that  it  did 
not  appear  that  he,  the  defendant,  ever  gave  her  any  specific  instruc- 
tions ;  that  he  had  no  other  agent ;  that  his  wife  took  care  and  got  along 
at  home  by  her  own  efforts  and  what  money  her  husband  furnished 
her  from  time  to  time.  From  this  and  other  facts  reported,  it  is 
evident  that  the  defendant  contemplated  his  wife,  in  such  small  matters 
as  are  embraced  in  the  plaintiffs  account,  would  exercise  her  judg- 
ment and  discretion.  If  she  had  paid  for  the  gravestones  out  of  the 
money  the  defendant  sent  her,  and  borrowed  the  money  in  question 
to  buy  the  flour,  there  can  be  no  doubt  but  it  would  have  charged  the 
husband.  The  using  of  some  of  the  money  sent  as  she  did,  and  re- 
placing it  with  the  money  borrowed,  is  the  same  in  efiect,  and  was  within 
the  scope  of  her  agency,  and  the  plaintiff  had  a  right  so  to  understand 
it.  There  was  an  agency  in  fact,  and  what  she  did  was  within  the  scope 
of  her  apparent  agency.  The  item  of  forty  cents  for  horse  to  Wells  River 
must  be  regarded  as  embraced  within  the  domestic  affairs  intrusted  to 


SECT.  V.J  PAGE   V.   METHFESSEL.  47 

her  charge,  without  proof  of  the  actual  necessity  for  it  at  the  time.  No 
questions  is  made  as  to  any  other  items,  except  item  for  the  lialter 
which  is  not  before  us,  as  the  plaintiff  did  not  except. 

Judgment  affirmed} 


PAGE   V.   METHFESSEL. 

Supreme  Court  op  New  York,  General  Term,  Fourth 
Department.  1893. 

[71  Hun,  442.] 

Appeal  by  the  defendant,  Anton  G.  Methfessel,  from  a  judgment 
of  the  Supreme  Court,  entered  in  the  office  of  the  clerk  of  the  county 
of  Oswego  on  the  25th  da}*  of  Juh',  1892,  upon  the  report  of  a  referee, 
with  notice  of  an  intention  to  bring  up  for  review  upon  such  appeal 
the  order  made  by  the  referee  herein,  dated  June  4,  1892. •^ 

In  the  com})Iaint,  it  is  alleged  that  at  divers  times  between  October 
7,  1890,  and  June  10,  1891,  the  plaintiffs,  at  the  request  of  defendant 
and  on  his  promise  to  pay  therefor,  sold  and  delivered  to  him  goods 
at  prices  agreed  upon  and  payable  in  sixty  days,  amounting  to  and  of 
the  value  of  $4078.90.  The  answer  denies,  in  substance,  all  the 
allegations  of  the  complaint,  except  that  the  defendant  admits  he  has 
been  requested  to  pay  certain  money's  to  plaintiffs. 

Van  Hoevenherg  &  Holt,  for  the  appellant. 

J).  P.  3forehoHse,  for  the  respondents. 

Merwin,  J.  All  of  the  goods  for  which  a  recovery  has  been  had 
in  this  case  were  ordered  b}'  "Philip  Michel,  Agent,"  and  were 
shii)ped  by  plaintiffs  to  "  Philip  Michel,  Agent,"  at  Stapleton,  Staten 
Island,  and  were  charged  in  the  same  wa}^  upon  plaintiffs'  books. 
The  referee  has  found  that  the  defendant,  by  his  acts  and  conduct  in 
these  and  similar  prior  transactions  with  plaintiffs,  held  Michel  out  to 
them  as  his  agent  in  purchasing  these  goods,  and  that  in  reliance  upon 
that,  and  in  the  belief,  induced  by  such  acts  and  conduct,  that  defend- 
ant was  the  principal  behind  Michel,  they  made  the  sales  in  question. 
In  other  words,  it  was  held  that  the  plaintiffs  had  the  right  to  treat  the 
defendant  as  the  principal  in  the  transactions.  The  question  in  this 
case  is  whether  such  finding  of  the  referee  is  sustained  by  the  evidence. 

The  plaintifTs  are  manufacturers  at  Minnetto,  Oswego  Count}',  of 
shade-cloth,  window-curtains  and  fixtures,  under  the  firm  name  of  the 
Minnetto  Shade-Cloth  Company-.  The  defendant,  since  April  1,  1886, 
has  resided  at  Stapleton,  Staten  Island,  and  owned  there  a  factory 

^  See  Cliurch  v.  Landers,  10  Wend.  79  (1833);  Benjamin  v.  Benjamin,  15  Conn. 
347  (1843) ;  Felker  v.  Emerson,  16  Vt.  653  (1844).  —  Ed. 

2  The  reporter's  statement  has  not  been  reprinted  in  full.  —  Ed. 


48  PAGE   V.   METHFESSEL.  [CHAP.  L 

building  for  the  manufacture  and  decorating  of  shade- cloth  into 
window-shades.  During  this  period,  Philip  Michel,  who  is  a  practical 
window-shade  manufacturer,  lived  at  Stapleton.  In  the  latter  part  of 
April,  1866,  and  before  the  29th,  the  business  of  manufacturing  and 
decorating  window-shades  at  defendant's  factory  was  commenced  under 
the  name  and  style  of  *'  Philip  Michel,  Agent,"  and  such  business 
was  carried  on  under  that  name  until  after  June  9,  1891.  During  this 
time  Michel  was  the  practical  shade  maker  and  managing  agent  of  the 
business,  and  defendant  was  the  office  man  and  book-keeper,  and  had 
charge  of  the  finances  of  the  business.  On  the  29th  April,  1886, 
Michel,  as  agent,  had  a  negotiation  with  one  Gillett,  who  was  a  sales- 
man and  agent  of  the  plaintiffs  in  reference  to  the  purchase  of  goods 
from  the  plaintiffs  for  the  purpose  of  manufacturing  and  decorating  in 
said  factory.  Gillett  inquired  of  Michel  as  to  his  financial  responsibil- 
ity, and  Michel  replied,  "I  have  a  friend  who  will  advance  me  some 
money  to  do  business  ;  "  and  thereupon  Michel  took  Gillett  to  the  house 
of  defendant,  introduced  him  to  defendant,  and  then  left.  After 
Michel  left,  Gillett  asked  defendant  whose  agent  Michel  was,  and 
defendant  replied :  — 

"He  has  been  unfortunate,  and  cannot  use  his  own  name.  I  am 
ready  to  assist  Mr.  Michel  according  to  mj-  ability.  All  the  orders 
received  from  Mr.  Michel,  countersigned  by  myself,  I  will  be  responsi- 
ble for." 

The  defendant,  then,  at  Gillett's  request,  wrote,  signed,  and  de- 
livered to  him  a  memorandum,  of  which  the  following  is  a  copy  :  — 

Stapleton,  April  29,  1886. 

I  herewith  declare  myself  to  be  responsible  for  all  orders  sent  by  Phil.  Michel, 
Agent,  to  the  Minnetto  Shade-Cloth  Company,  if  the  same  are  countersigned  by  me. 

A.   G.   Methfessel. 

After  this,  and  on  the  same  day  and  occasion,  an  order  was  signed 
and  delivered  to  Gillett,  as  follows : 

Philip  Michel,  Agent. 

1  pc.  ea.  18-32-38-62-66-68-64-58. 

Philip  Michel,  Agent,  Stapleton.  A.  G.  Methfessel. 

These  goods  were  shipped  as  directed,  and  soon  thereafter  the  plain- 
tiffs received  in  payment  thereof  from  the  defendant,  by  mail,  his 
individual  check  on  the  German-American  Bank  of  New  York  for  the 
amount  of  the  order,  less  a  discount  of  2  per  cent  allowed  for  payment 
within  30  days.  The  next  order  seems  to  have  been  about  May  25th, 
and  not  countersigned  by  defendant,  by  reason  of  his  absence.  On 
the  21st  June,  1886,  the  defendant  writes  to  the  plaintiffs,  inclosing  an 
order,  as  to  which  he  says :  "  You  will  oblige  me  by  sending  at  your 
very  earliest  convenience  to  Phil.  Michel,  Agent."  He  also  inclosed 
his  check  for  the  amount  of  seven  bills  from  May  25th  to  June  14th. 
In  this  letter  he  also  sa.vs  :  — 


SECT.  V.J  PAGE   V.   METHFESSEL.  49 

"  Our  iuteution  is  to  pay  alway.s  cash,  and,  if  we  do  not  do  it  this  time,  it  is  becaose 
I  was  abseut  on  a  trip  west,  and  we  thought  that  the  goods  bouglit  of  you  iu  the  first 
days  of  May  would  la.st  until  my  return.  Orders,  however,  coming  in  earlier  and 
larger  tliau  we  expected,  Mr.  Michel  applied  to  you  for  more  goods,  which  you 
sent  without  my  guaranty,  thereby  doing  us  a  favor,  for  which  we  feel  grateful.  I 
send  the  full  amount  of  those  seven  bills,  trusting  that  you  will  allow  all  the  discount 
you  posssbly  can,  and  deduct  the  same  from  the  amount  of  next  bill." 

After  the  first  order,  none  were  in  form  countersigned  b}-  defendant. 
Some  orders,  however,  were  sent  b}-  the  defendant  himself,  and  many 
letters  of  defendant  are  in  evidence,  from  which  it  might  be  inferred 
that  the  defendant  liad  a  personal  interest  in  the  business.  For 
instance,  on  the  25th  September,  1886,  he  sends  an  order  for  certain 
specified  goods,  and  adds,  "  We  will  soon  give  you  larger  orders," 
The  goods,  however,  were  mainly  ordered  by  "  Thilip  Michel,  Agent," 
and  all  were  shipped  and  charged  in  that  form.  The  dealings  were 
quite  large,  comprising  hundreds  of  orders,  aggregating  about  ^35,000, 
and  continued  to  June  9,  1891.  All  of  the  goods  so  ordered  and 
shipped,  down  to  October  2,  1890,  were  paid  for,  from  time  to  time,  by 
the  individual  checks  of  the  defendant  on  the  German-American  Bank 
of  New  York,  inclosed  in  letters  written  bj-  him  to  the  plaintiffs.  The 
orders  since  October  2,  1890,  are  the  items  involved  in  this  suit.  All 
the  goods  sent  b\'  the  plaintiflfs  were  used  at  the  factory  in  Stapleton, 
and  all  the  proceeds  of  their  sale  after  being  manufactured,  excepting 
a  small  amount,  were  turned  over  to,  and  received  bv,  the  defendant, 
and  were  deposited  b^-  him,  with  other  moneys  belonging  to  him,  in  his 
bank  account  with  the  German-American  Bank.  It  is  shown  on  the 
part  of  the  defendant  that  Michel  was  in  fact  the  agent  of  his  wife,  and 
employed  the  defendant  as  his  book-keeper  and  cashier,  and  that 
defendant  kept  an  account  of  the  moneys  received,  and  checked  them 
out  as  directed  b\'  Michel.  All  this,  however,  was  unknown  to  plain- 
tiflfs. Defendant  was  in  a  position  to  know  of  all  the  orders  sent,  and 
no  objection  was  made  by  him  that  the}'  were  not  countersigned  by 
him,  or  that  Michel  did  not  have  authority-  to  bind  him. 

These  are  the  main  features  of  the  case.  It  seems  to  me  ver\'  clear 
that  the  evidence  warranted  the  conclusion  that  the  limitation  or  con- 
dition in  the  writing  of  April  29,  1886,  that  the  orders  should  be  coun- 
tersigned by  the  defendant,  was  waived  b}'  the  defendant,  or  at  least 
that  the  plaintiflfs  had  a  right  to  believe  that  it  was  not  required  by 
defendant.  In  his  letter  of  June  21,  1886,  he  excused  the  want  of  it, 
and  treated  it  as  a  favor  that  the  plaintiffs  sent  the  goods  without  it ; 
and  for  four  years  and  upwards,  thereafter,  he  paid  the  bills  without 
question,  and  without  any  suggestion  that  the  countersigning  was  im- 
portant. If  the  limitation  was  waived,  that  left  the  declaration  of 
defendant  general,  —  that  he  would  be  responsible  for  all  orders  sent  to 
plaintifl["s  bj-  Michel  as  agent.  This  responsibility  was,  in  eflfect, 
acknowledged  by  the  defendant,  so  far  as  the  plaintiflfs  were  concerned, 
from  June,  1886,  to  October,  1890.     The  plaintiflfs  were  informed  of 

4 


50  PAGE   V.    METHFESSEL.  [CHAP.  I. 

no  other  person  as  principal.  The  defendant  himself  gave  orders,  and 
indicated  a  personal  interest  in  the  business.  The  authority  given  by 
the  paper  of  April  29,  1886,  was  never  revoked.  The  plaintiffs  had  a 
right  to  assume  that  the  authority  continued  after  October,  1890,  as  it 
had  existed  before.     Bodine  v.  Killeen,  53  N.  Y.  93. 

It  is  suggested  that  the  credit  was  not  given  to  defendant,  because 
the  goods  were  charged  to  ]\Iichel  as  agent.  That  form  of  charge  indi- 
cated that  credit  was  not  given  to  Michel  individually,  and  there  was 
no  other  known  to  plaintiffs,  to  whom  credit  would  be  given,  except 
the  defendant.  The  plaintiffs'  agent,  before  the  commencement  of  tlie 
negotiation  in  April,  1886,  was  informed  that  Michel  was  insolvent, 
and  it  is  easy  to  infer  that  no  one  intended  or  expected  that  credit 
would  be  given  to  him.  It  is  also  suggested  that  the  plaintiffs  did  not 
testify  that  they  relied  on  defendant.  In  such  a  case,  it  is  said  in 
Brown  v.  Bowen,  30  N.  Y.  520,  that,  in  the  absence  of  proof  of  the 
effect  of  the  admission  on  tlic  party  setting  up  the  estoppel,  it  is  for  the 
jury  to  say  whether,  on  the  facts,  the  several  essential  parts  of  the  estop- 
pel are  proved.  In  the  present  case  it  was  a  question  of  fact  whether 
the  defendant,  by  his  acts  and  conduct,  held  out  Michel  to  the  plaintiffs 
as  his  agent,  and  whether,  from  such  acts  and  conduct,  the  plaintiffs 
were  led  to  believe,  and  did  believe,  that  the  defendant  was  the  prin- 
cipal, and  relied  on  this  in  selling  the  goods  in  suit.  The  conclusion  of 
the  referee  on  this  subject  should  not,  I  think,  under  the  circumstances 
of  this  case,  be  disturbed. 

But  it  is  said  that  the  plaintiffs  were  guilty  of  laches  in  allowing  the 
bills  in  suit  to  accumulate.  Still,  the  defendant,  by  reason  of  his  posi- 
tion in  the  business,  presumptively  knew  all  about  the  orders  that  were 
being  sent  to  plaintiffs,  and  knew  that  the  bills  in  suit  were  not  paid. 
He  was  bookkeeper,  and  had  charge  of  the  finances,  and  the  proceeds 
of  all  the  goods  sent  by  the  plaintiffs,  including  those  in  suit,  were 
turned  over  to  him.  He  made  no  suggestion  to  the  plaintiffs  that  he 
did  not  propose  to  pay  any  more,  or  proposed  to  change  the  current  of 
the  business.  A  large  portion  of  the  goods  in  suit  were  ordered  before 
the  payments  on  the  prior  account  were  completed.  We  fail  to  see  any 
defence  on  the  ground  of  laches. 

After  the  evidence  before  the  referee  was  closed,  and  before  the 
decision  of  the  case,  a  motion,  upon  affidavits  and  notice  to  plaintiffs, 
was  made,  before  the  referee,  to  correct  the  minutes  of  the  referee  of 
the  testimony  of  the  defendant  as  to  his  answer  to  a  particular  ques- 
tion, or  that  the  trial  be  opened.  AflSdavits  were  used  by  plaintiffs  in 
opposition  to  the  motion,  and  there  was  a  conflict  as  to  what  the  testi- 
mony in  fact  was.  The  motion  to  correct  the  minutes  was  denied,  but, 
on  motion  of  the  counsel  for  defendant,  leave  was  given  to  defendant 
to  recall  the  witness  upon  certain  terms  as  to  the  costs  of  the  motion, 
and  the  further  attendance  before  the  referee,  and  the  expenses  of 
rebutting  testimony.  Nothing  was  further  done,  the  terms,  apparently, 
not  being  satisfactory.     Whether  the  minutes  were  correct  was  for  the 


SECT,  v.]  PAGE   V.   METHFESSEL.  51 

referee  to  determine,  and  his  decision  on  that  is  conclusive.  Tweed  v. 
Davis,  1  Hun.  252.  The  terms  for  opening  the  case  were  within  liis 
discretion,  and  no  sufficient  reason  appears  for  this  court  to  say  that 
such  discretion  was  abused. 

Hardix,  p.  J.,  and  Parker,  J.,  concurred. 

Judgment  and  order  affirmed  with  costn} 

*  "  But  the  rule  of  law  is  clear,  that,  where  one  by  his  words  or  conduct  wilfully 
causes  another  to  helieve  the  existence  of  a  certain  state  of  things,  and  induces  liiin 
to  act  on  that  belief,  so  as  to  alter  his  own  previous  position,  the  former  is  concluded 
from  averring  against  the  latter  a  different  state  of  things  as  existing  at  the  same 
time."     Pickard  v.  Sears,  6  Ad.  &  E.  469,  474  (1837),  per  Lord  Denman,  C.  J. 

"  By  the  term  '  wll/ulli/,'  however,  in  that  rule,  we  must  understand,  if  not  that 
the  party  represents  that  to  be  true  which  he  knows  to  be  untrue,  at  least  tliat  he 
means  his  representation  to  be  acted  upon,  and  that  it  is  acted  upon  accordingly ; 
and  if,  whatever  a  man's  real  intention  may  be,  he  so  conducts  himself  that  a  reason- 
able man  would  take  the  representation  to  be  true,  and  believe  that  it  was  meant  that 
he  should  act  upon  it,  and  did  act  upon  it  as  true,  the  party  making  the  representa- 
tion would  be  equally  precluded  from  contesting  its  truth ;  and  conduct,  by 
negligence  or  omission,  where  there  is  a  duty  cast  upon  a  person,  by  usage  of  trade 
or  otherwise,  to  disclose  the  truth,  may  often  have  the  same  effect."  Freeman  v. 
Cooke,  2  Exch.  654,  663  (1848),  per  Pakke,  B. 

"  The  agency  may  be  constituted  by  an  express  limited  authority  to  make  such  a 
contract,  or  a  larger  authority  to  make  all  falling  within  the  class  or  description  to 
which  it  belongs,  or  a  general  authority  t(j  make  any  ;  or  it  may  be  proved  by  showing 
that  such  a  relation  existed  between  the  parties  as  by  law  would  create  the  authority  ; 
as  for  instance,  that  of  partners,  by  which  relation,  when  complete,  one  becomes 
by  law  the  agent  of  the  other  for  all  purposes  uecessarj'  for  carrying  on  their  particular 
partnership,  whether  general  or  special,  or  usually  belonging  to  it;  or  the  relation 
of  husband  and  wife,  in  which  the  law,  under  certain  circumstances,  considers  the  hus- 
band to  make  his  wife  an  agent.  In  all  these  cases,  if  the  agent,  in  making  the 
contract,  acts  on  that  authority,  the  principal  is  bound  by  the  contract,  and  the 
agent's  contract  is  his  contract,  but  not  otherwise.  This  agency  may  be  created  by 
the  immediate  act  of  the  party,  that  is,  by  really  giving  the  authority  to  the  agent,  or 
representing  to  him  that  he  is  to  have  it,  or  by  constituting  that  relation  to  which 
the  law  attaches  agency ;  or  it  may  be  created  by  the  representation  of  the  defendant 
to  the  plaintiff,  that  the  party  making  the  contract  is  the  agent  of  the  defendant,  or 
that  such  relation  exists  as  to  constitute  him  such ;  and  if  the  plaintiff  really  makes 
the  contract  on  the  faith  of  the  defendant's  representation,  the  defendant  is  bound ; 
he  is  estopped  from  disputing  the  truth  of  it  with  respect  to  that  contract;  and  the 
representation  of  an  authority  is,  quoad  hoc,  precisely  the  same  as  a  real  authority 
given  by  the  defendant  to  the  supposed  agent.  This  representation  may  be  made 
directly  to  the  plaintiff,  or  made  publicly  so  that  it  may  be  inferred  to  have  reached 
him,  and  may  be  made  by  words  or  conduct.  Upon  none  of  these  propositions  is 
there,  we  apprehend,  the  slightest  doubt ;  and  the  proper  decision  of  all  these 
questions  depends  upon  the  proper  application  of  these  principles  to  the  facts  of  each 
case,  and  the  jury  are  to  apply  the  rule  with  due  assistance  from  the  judge."  Per 
Pollock,  C.  B.,  in  Reynell  v.  Lewis,  15  M.  &  W.  517,  527-528  (1846). 

"  First,  then,  as  to  the  constitution  by  the  principal  of  another  to  act  as  his  agent. 
No  one  can  become  the  agent  of  another  person  except  by  the  will  of  that  other  person. 
His  will  may  be  manifested  in  writing  or  orally,  or  simply  by  placing  another  in  a 
situation  in  which,  according  to  ordinary  rules  of  law,  or  perhaps  it  would  be  more 
correct  to  say,  according  to  the  ordinary  usages  of  mankind,  that  other  is  understood 
to  represent  and  act  for  the  person  who  has  so  placed  him  ;  but  in  every  case  it  is 
only  by  the  will  of  the  employer  that  an  agency  can  be  created. 

"This  proposition,  however,  is  not  at  variance  with  the  doctrine  that  where  one 


52  STATUTE  OF  FRAUDS.  [CHAP.  L 


SECTION   V.  (continued). 

(5)  Appointment  to  execute  an  Instrument  within  the  Statute 

OF  Frauds.  ^ 

The  Statute  of  Frauds,  29  Car.  II.  c.  3,  §§  1-5,  17  (1676-7)  :  —  » 

Sect.  1.  .  .  .  All  leases,  estates,  interests  of  freehold,  or  terms  of 
years,  or  an}-  uncertain  interest  of,  in,  to  or  out  of  any  messuages, 
manors,  lands,  tenements  or  hereditaments,  made  or  created  by  livery 
and  seisin  only,  or  by  parol,  and  not  put  in  writing,  and  signed  by  the 
parties  so  making  or  creating  the  same,  or  their  agents  thereunto  law- 
fully authorized  b}'  writing,  shall  have  the  force  and  effect  of  leases  or 
estates  at  will  onlj',  and  shall  not  either  in  law  or  equity  be  deemed  or 
taken  to  have  any  other  or  greater  force  or  effect ;  an}'  consideration 
for  making  any  such  parol  leases  or  estates,  or  any  former  law  or 
usage,  to  the  contrary  notwithstanding. 

Sect.  2.  Except  nevertheless  all  leases  not  exceeding  the  term  of 
three  j^ears  from  the  making  thereof,  whereupon  the  rent  reserved  to 
the  landlord,  during  such  term,  shall  amount  unto  two  third  parts  at 
the  least  of  the  full  improved  value  of  the  thing  demised. 

has  so  acted  as  from  his  conduct  to  lead  another  to  believe  that  he  has  appointed 
Some  one  to  act  as  his  agent,  and  knows  that  that  other  person  is  about  to  act  on 
that  behalf,  then,  unless  he  interposes,  he  will,  in  general,  be  estopped  from  disputing 
the  agency,  though  in  fact  no  agency  really  existed.  It  is,  however,  necessary  to 
bear  in  mind  the  difference  between  this  agency  by  estoppel,  if  I  may  so  designate 
it,  and  a  real  agency,  however  constituted. 

"  Another  principle  to  be  kept  constantly  in  view  is,  that  the  burden  of  proof  is  on 
the  person  dealing  with  any  one  as  an  agent,  through  whom  he  seeks  to  charge 
another  as  principal.  He  must  show  that  the  agency  did  exist,  and  that  the  agent  had 
the  authority  he  assumed  to  exercise,  or  otherwise  that  the  principal  is  estopped  from 
disputing  it. 

"  Unless  this  principle  is  strictly  acted  on,  great  injustice  may  be  the  consequence  ; 
for  any  one  dealing  with  a  person  assuming  to  act  as  agent  for  another  can  always 
save  himself  from  loss  or  difficulty  by  applying  to  the  alleged  principal  to  learn 
whether  the  agency  does  exist,  and  to  wliat  extent.  The  alleged  principal  has  no 
similar  mode  of  protecting  his  interest ;  he  may  be  ignorant  of  the  fact  that  any  one 
is  assuming  to  act  for  him,  or  that  persons  are  proposing  to  deal  with  another  under 
the  notion  that  that  other  is  his  agent.  It  is,  therefore,  important  to  recollect  con- 
stantly where  the  burden  of  proof  lies."  Per  Lord  Cranworth,  dissenting,  in  Pole 
y.Leask,  33  L.  J.  n.  s.  Ch.  155,  161-162  (House  of  Lords,  1863). 

Similar  to  the  principal  case  are  Fanning  v.  Cobb,  20  Mo.  App.  577  (1886);  and 
Mook  V.  Parker,  9  N.  Y.  Misc.  90  (1894),  s.  c.  29  N.  Y.  Supp.  32.  — Ed. 

1  "  All  contracts  are  by  the  laws  of  England  distinguished  into  agreements  by  spe- 
cialty, and  agreements  by  parol ;  nor  is  there  any  such  third  class,  as  some  of  the 
counsel  have  endeavored  to  maintain,  as  contracts  in  writing.  If  they  be  merely 
written  and  not  specialties,  they  are  parol,  and  a  consideration  must  be  proved."  Per 
Sktnner,  C.  B.,  delivering  the  opinion  of  the  judges,  in  Rann  v.  Hughes,  7  T.  R.  346, 
n.  (a)  (House  of  Lords,  1778).— P>d. 

2  1  Statutes  Revised,  774;  8  Statutes  of  the  Realm,  Pickering's  edition,  405.  The 
text  follows  the  spelling,  punctuation,  and  numbering  of  Pickering's  edition. — Ed. 


8KCT.  v.]  EMMERSON   V.    HEELIS.  53 

Sect.  3.  .  .  .  No  leases,  estates  or  interests,  either  of  freehold,  or 
terms  of  3'ears,  or  any  uncertain  interest,  not  being  copyhold  or  cus- 
tomary interest,  of,  in,  to  or  out  of  any  messuages,  manors,  lands, 
tenements  or  hereditaments,  shall  ...  be  assigned,  granted  or  sur- 
rendered, unless  it  be  b}'  deed  or  note  in  writing,  signed  by  the  party  so 
assigning,  granting  or  surrendering  the  same,  or  their  agents  thereunto 
lawfully  authorized  by  writing,  or  by  act  and  operation  of  law. 

Sect.  4.  .  .  .  No  action  shall  be  brought  whereb}-  to  charge  any 
executor  or  administrator  upon  an}'  special  promise,  to  answer  dam- 
ages out  of  his  own  estate  ;  (2)  or  wherebj'  to  charge  the  defendant 
upon  any  special  promise  to  answer  for  the  debt,  default  or  miscar- 
riages of  another  person  ;  (3)  or  to  charge  any  person  upon  any 
agreement  made  upon  consideration  of  marriage  ;  (4)  or  upon  any 
contract  or  sale  of  lands,  tenements  or  hereditaments,  or  an}'  interest 
in  or  concerning  them  ;  (5)  or  upon  an}'  agreement  that  is  not  to  be 
performed  within  the  space  of  one  year  from  the  making  thereof;  (6) 
unless  the  agreement  upon  which  such  action  shall  be  biought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by  the 
party  to  be  charged  therewith,  or  some  other  person  thereunto  by  him 
lawfully  authorized. 

Sect.  5.  .  .  .  All  devises  and  bequests  of  any  lands  or  tenements, 
devisable  either  by  force  of  the  statute  of  wills,  or  by  this  statute,  or 
by  force  of  the  custom  of  Kent,  or  the  custom  of  any  borough,  or  any 
other  particular  custom,  shall  be  in  writing,  and  signed  by  tlie  i)arty  so 
devising  the  same,  or  by  some  other  person  in  his  presence  and  by  his 
express  directions,  and  shall  be  attested  and  subscribed  in  the  presence 
of  the  said  devisor  by  three  or  four  credible  witnesses,  or  else  they 
shall  be  utterly  void  and  of  none  effect. 

Sect.  17.  .  .  .  No  contract  for  the  sale  of  any  goods,  wares  and 
merchandizes,  for  the  price  of  ten  pounds  sterling  or  upwards,  shall  be 
allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the  goods  so 
sold,  and  actually  receive  the  same,  or  give  something  in  earnest  to 
bind  the  bargain,  or  in  part  of  payment,  or  that  some  note  or  memo- 
randum in  writing  of  the  said  bargain  be  made  and  signed  by  the 
parties  to  be  charged  by  such  contract,  or  their  agents  thereunto  law- 
fully authorized. 


EMMERSON  v.   HEELIS. 
Common  Pleas.     1809. 

[2  Taunton,  38.] 

This  was  an  action  of  assumpsit  for  not  carrying  off  from  the 
plaintiff's  land  certain  lots,  to  wit,  27  different  lots  of  turnips,  alleged 
to  have  been  bought  by  the   defendant  of  the  plaintiff,  and  for  not 


54  EMMERSON   V.   HEELIS.  [CHAP.  L 

bringing  back  and  laying  upon  the  land  a  certain  quantit}'  of  manure  ; 
the  declaration  also  contained  a  count  for  turnips  bargained  and 
sold,  and  the  common  money-counts.  The  defendant  pleaded  the 
general  issue.  Upon  the  trial  at  the  Westmoreland  Spring  assizes, 
1808,  a  verdict  was  taken  for  the  plaintiff  for  the  amount  of  damages 
stated  in  the  declaration,  subject  to  a  reference  as  to  the  amount  of 
the  plaintiff's  demand,  for  which  sura  only  a  verdict  was  to  be  entered, 
and  also  as  to  tlie  fact  whether  one  Moss,  who  attended  at  an  auction 
on  behalf  of  the  defendant,  and  there  purchased  the  turnips  for  him, 
had  been  duly  authorized  by  the  defendant  to  act  as  his  agent  on  that 
occasion.  Upon  both  these  points  the  arbitrator  afterwards  duly  made 
his  award,  thereby  fixing  the  amount  of  the  plaintiff's  damages  at  £46 
6s.,  and  declaring  that  Moss,  a  servant  in  husbandr}',  retained  and 
omplojed  b}'  the  defendant,  was  dul}'  authorized  b}'  the  defendant  to 
attend  as  his  agent  at  the  sale.  The  verdict  was  also  made  subject  to 
the  opinion  of  the  Court  of  Common  Pleas  upon  the  following  case. 

The  plaintiff  put  up  to  sale  b}-  public  auction,  on  the  25th  of  Sep- 
tember, 1806,  a  crop  of  turnips,  then  growing  upon  his  land,  in  separate 
lots,  and  under  certain  conditions  of  sale.  The  defendant,  by  his  agent 
Anthon_y  Moss,  his  farming  servant,  attended  at  the  sale,  and  being 
the  highest  bidder  for  27  different  lots,  containing  in  the  whole  108 
stiches  or  furrows,  was  declared  to  be  the  purchaser  thereof ;  and  the 
name  of  each  purchaser,  and  amongst  others,  of  the  defendant  was 
written  in  the  third  column  of  the  sale  bill  b\'  the  auctioneer,  opposite 
to  each  particular  lot  for  which  the  other  purchasers  and  the  defendant 
were  respectively  declared  the  highest  bidders,  in  the  order  in  which 
tlie  same  were  respectively  knocked  down.  The  defendant  was  not 
present  at  the  auction  ;  neitlier  did  he,  or  Moss,  sign  any  agreement 
in  writing,  nor  did  the  auctioneer,  otherwise  than  as  is  before  stated, 
b}-  putting  down  the  names  of  the  different  purchasers,  amongst  whom 
was  Moss  for  the  defendant.  The  lots  were  not  purchased  by  the 
defendant's  agent  in  succession,  but  other  purchasers  purchased  several 
intermediate  lots.  No  single  lot  was  knocked  down  to  the  defendant 
at  a  larger  sum  than  £1  lis.,  although  the  amount  of  the  27  lots  was 
£39  Is.  The  following  was  the  form  of  the  bill  of  sale  prepared  by  the 
auctioneer,  and  by  which  the  turnips  were  sold.  It  was  divided  into 
five  columns. 

A  bill  of  sale  of  turnips,  by  stiches,  the  property  of  George  Emmer- 
son,  at  Kirb}-,  in  the  parish  of  Bongate,  in  the  count}'  of  West- 
moreland, that  were  sold  the  25th  of  September,  1806,  by  John 
Wright,  auctioneer.  Time  for  payment  till  the  1st  day  of  January, 
1807,  on  giving  satisfactory  security  before  they  depart  the  sale, 
or  when  demanded.     Everv  four  stiches  one  cart  load  of  manure. 


1 

2 

3 

4 

5 

No.  of  Stiches. 

No.  of  Lots. 

Purchasers'  Names. 

Articles   sold. 

Price. 

4 

1 

Edw.  Heelis. 

Lot  1. 

£1  7s 

SECT,  v.]  EMMERSON   V.    HEELIS.  65 

The  bill  of  sale  was  proposed  at  the  trial,  as  evidence  of  the 
contracts  of  sale  of  the  27  lots,  but  it  was  not  proved  ;  there  was 
no  stump  on  it,  but  it  did  not  in  any  manner  appear  that  there  was  an}^ 
fraud  or  intention  to  elude  the  stamp  act  in  setting  down  eacli  lot 
separately.  The  question  for  the  opinion  of  the  court  was,  whether 
the  verdict  should  stand,  or  a  nonsuit  be  entered. 

Lens,  Serjt.,  for  the  plaintiff. 

Shejiherd,  .Serjt.,  contra. 

Lens,  in  reply.  Cur.  adv.  vult. 

On  a  following  day  in  the  same  term,  the  court  observed  that  the 
statute  of  frauds  did  not  require  that  the  agent  for  the  buyer  should  be 
authorized  bv  writing  ;  and  in  the  case  of  Coles  v.  Trecothick,  and 
numerous  other  equity  cases,  a  written  authority  had  been  held 
unnecessary,  although  the  contrary  had  been  once  ruled  ;  if  the  defend- 
ant had  subscribed  his  own  name  in  the  third  column  opposite  to  each 
lot  as  it  was  knocked  down  to  him,  no  doubt  the  contract  would  have 
been  good;  or  if  he  had  expressly  said  to  the  auctioneer,  "  Put  down 
my  name." 

Mansfield,  C.  J.,  in  this  term  delivered  the  opinion  of  the  court. 
He  observed,  that  some  curious  points  had  been  agitated  in  this  case, 
and  recapitulated  the  facts.  The  questions  are,  whether  the  contract 
should  be  in  writing,  as  being  for  a  sale  of  goods  amounting  to  £10. 
There  is  no  ground  for  that  objection,  for  the  contract  for  each  stich 
was  a  separate  sale ;  for  the  same  reason  no  stamp  is  necessar}', 
because  no  one  lot  was  worth  £20.  The  third  question  is,  whether  it 
was  an  interest  in  land,  and  if  so,  whether  a  signing  b}-  the  auctioneer 
is  a  signing  by  an  agent  for  the  purchaser ;  this  depends  on  the  4th 
section  of  the  statute,  for  this  is  an  agreement  to  purchase.  The  words 
of  the  statute  are,  "  that  no  action  shall  be  brought  to  charge  any 
person  upo7i  any  contract  or  sale  of  lands,  tenements,  or  hereditaments, 
or  any  interest  in  or  concerning  them,"  unless  the  agreement,  or 
some  note  or  memorandum  thereof,  shall  be  in  writing,  and  signed  b}' 
the  partv  to  be  charged  therewith,  or  some  other  person  thereunto 
bj'  him  lawfull}'  authorized.  Now  as  to  this  being  an  interest  in  land, 
we  do  not  see  how  it  can  be  distinguisljed  from  the  case  of  hops 
decided  in  this  court ;  and  if  the  auctioneer  is  an  agent  for  the  pur- 
chaser, then  the  statute  of  frauds  is  satisfied,  because  the  memorandum 
in  writing  is  signed  by  an  agent  for  the  part^'  to  be  charged.  Now 
this  memorandum  is  more  particular  than  most  memorandums  of  sale 
are  ;  and  upon  it  the  auctioneer  writes  down  the  purchaser's  name. 
Bj-  what  authority  does  he  write  down  the  purchaser's  name?  By  the 
authority  of  the  purchaser.  These  persons  bid,  and  announce  their 
biddings,  loudl}"  and  particularlv  enough  to  be  heard  by  the  auctioneer. 
For  what  purpose  do  thej'  do  this?  That  he  may  write  down  their 
names  opposite  to  the  lots ;  therefore  he  writes  the  name  bv  the 
authority  of  the  purchaser,  and  he  is  an  agent  for  the  purchaser ;  and 


56  JOHNSON  V.   DODGE.  [CHAP.  I. 

it  does  seem,  therefore,  that  this  is  a  contract  signed  by  an  agent  for 
the  purchaser,  and  consequently  is  binding ;  and  judgment  must  be 
entered  for  the  plaintiff.^ 


JOHNSON   V.   DODGE. 
Supreme  Court  of  Illinois.     1856. 

[17  ///.  433.] 

Error  to  Cook  Count}-  Court  of  Common  Pleas. ^ 

The  bill  was  dismissed  by  Wilson,  Judge,  at  Januarj'  term  of  the 
Common  Pleas  Court,  and  thereupon  the  complainant  brought  this  writ 
of  error. 

B.  /S.  Jlori-is,  and  Waller  &  Caidjield,  for  plaintiff  in  error. 

I.  JV.  Arnold,  and  H.  G.  Miller,  for  defendant  in  error. 

Skinner,  J.  This  was  a  bill  in  equity,  for  specific  performance  of  a 
contract  for  the  sale  of  land. 

The  bill  and  proofs  show  that  one  Iglehart,  a  general  land  agent, 
executed  a  contract  in  writing  in  the  name  of  Dodge,  the  respondent, 
for  the  sale  of  certain  land  belonging  to  Dodge,  to  one  Walters,  and 
received  a  portion  of  the  purchase  mone^' ;  that  Walters  afterwards 
assigned  the  contract  to  Johnson,  the  complainant ;  a  tender  of  per- 
formance on  the  part  of  Walters,  and  on  the  part  of  Johnson,  and  a 
refusal  of  Dodge  to  perform  the  contract.  The  answer  of  Dodge,  not 
under  oath,  denies  the  contract,  and  sets  up  the  statute  of  frauds  as  a 
defence  to  any  contract  to  be  proved.  The  evidence,  to  our  minds, 
establishes  a  parol  authorit}'  from  Dodge  to  Iglehart  to  sell  the  land, 
substantially  according  to  the  terms  of  the  writing.  It  is  urged  against 
the  relief  prayed,  that  Iglehart,  upon  a  parol  authority  to  sell,  could 
not  make  for  Dodge  a  binding  contract  of  sale,  under  the  statute  of 
frauds ;  that  the  proofs  do  not  show  an  authority  to  Iglehart  to  sign 
the  name  of  Dodge  to  the  contract,  and  therefore  that  the  writing  is 
not  the  contract  of  Dodge  ;  that  the  writing  not  being  signed  by  the 
vendee  is  void  for  want  of  iputuality  ;  that  no  sufficient  tender  of  per- 
formance on  the  part  of  complainant  is  proved,  and  that  the  proof 
shows  that  the  authorit}'  conferred  was  not  pursued  b}*  the  agent. 
Equity  will  not  decree  specific  performance  of  a  contract  founded  in 
fraud,  but  where  the  contract  is  for  the  sale  of  land,  and  the  proof 
shows  a  fair  transaction,  and  the  case  alleged  is  clearly  established,  it 
will  decree  such  performance. 

In  this  case,  the  contract,  if  Iglehart  had  authority  to  make  it,  is  the 
contract  of  Dodge  and  in  writing ;  and  it  is  the  settled  construction  of 

1  See  Mews  v.  Carr,  1  H.  &  N.  484  (1856);  Horton  v.  McCarty,  53  Me  394 
(1866).  — Ed. 

*  The  reporter's  statement  of  the  case  is  omitted.  —  Ed. 


SECT,  v.]  JOHNSON    V.   DODGE  57 

the  statute  of  frauds,  that  the  authority  to  the  agent  need  not  be  in 
writing ;  and  by  this  construction  we  feel  bound.  1  Parsons  on  Con. 
42,  and  cases  cited;  Doty  v.  Wilder,  15  111.  407;  2  Parsons  on  Con. 
292,  293,  and  cases  cited;  Saunders'  PI.  and  Ev.  541,  542,  and  551 ; 
Story  on  Agency,  50  ;  2  Kent's  Com.  614.  Authority  from  Dodge  to 
Igleliart  to  sell  the  land  included  the  necessary-  and  usual  means  to 
make  a  binding  contract  in  the  name  of  the  principal.  If  the  authority 
to  sell  may  be  created  by  parol,  from  this  authority  may  be  implied 
the  power  to  use  the  ordinary  and  usual  meaijs  of  effecting  a  valid  sale  ; 
and  to  make  such  sale  it  was  necessary  to  make  a  writing  evidencing 
the  same.  If  a  party  is  present  at  the  execution  of  a  contract  or  deed, 
to  bind  him  as  a  part}'  to  it,  when  his  signature  is  affixed  b^-  another, 
it  is  necessary  that  the  person  so  signing  for  him  should  have  direct 
authority-  to  do  the  particular  thing,  and  then  the  signing  is  deemed  his 
personal  act.  Story  on  Agency,  51.  In  such  case  the  part}-  acts 
without  the  intervention  of  an  agent,  and  uses  tlie  third  person  only  as 
an  instrument  to  perform  the  mere  act  of  signing.  This  is  not  such  a 
case.  The  agent  was  authorized  to  negotiate  and  conclude  the  sale, 
and  for  that  purpose  authority  was  implied  to  do  for  his  principal 
what  would  have  been  incuml)ent  on  the  principal  to  do  to  accomplish 
the  same  thing  in  person.  Hawkins  /'.  Chance,  19  Pick.  502;  2  Par- 
sons on  Con.  291  ;  Stor}'  on  Agenc}',  Chap.  6  ;  Hunt  v.  Gregg,  8 
Blackf.  105  ;  Lawrence  v.  Taylor,  5  Hill,  107;  15  111.  411  ;  Vanada  v. 
Hopkins,  1  J.  J.  Marsh.  283 ;  Kirby  v.  Grigsby,  9  Leigh,  387. 

The  mode  here  adopted  was  to  sign  the  name  of  Dodge  "  by"  Igle- 
hart,  "his  agent,*'  and  it  is  the  usual  and  proper  mode  in  carrying  out 
an  authority  to  contract  conferred  on  an  agent.  But  if  the  signing  the 
name  of  the  principal  was  not  authorized  by  the  authority  to  sell,  3'et 
the  signature  of  the  agent  is  a  sufficient  signing  under  the  statute. 
The  language  of  the  statute  is,  "  signed  by  the  party  to  be  charged 
therewith,  or  some  other  person  thereto  b}-  him  lawfully  authorized." 
If  Iglehart  had  authorit}'  to  sign  Dodge's  name,  then  the  contract  is 
to  be  treated  as  signed  b}-  Dodge  ;  and  if  Iglehart  had  authority  to 
sell,  in  anj-  view  his  signature  to  the  contract  is  a  signing  b}-  "some 
other  person  thereto  by  him  lawfulh'  authorized,"  within  the  statute. 
Truman  v.  Loder,  11  Ad.  and  El.  589  ;  2  Parsons  on  Con.  291.  It  is 
true  that  author! t}'  to  convey  must  be  in  writing  and  by  deed ;  for  land 
can  onl}-  be  conveyed  by  deed,  and  the  power  must  be  of  as  high  dig- 
nity as  the  act  to  be  performed  under  it.  It  was  not  necessary-  to  the 
obligation  of  the  contract  that  it  should  have  been  signed  bj-  the  vendee. 
His  acceptance  and  possession  of  the  contract,  and  payment  of  money 
under  it,  are  unequivocal  evidences  of  his  concurrence,  and  constitute 
him  a  party  as  fully  and  irrevocably  as  his  signing  the  contract  could. 
2  Parsons  on  Con.  290;  McCrea  v.  Purmort,  16  Wend.  160;  Shirly 
V.  Shirly,  7  Blackford,  452. 

We  cannot  question  the  sufEcienc}'  of  the  tender  in  equit}',  to  entitle 
the  complainant  to  specific  performance.     Webster  et  al.  v.  French  et 


58  HIBBLE  WHITE   V.    M'MORINE.  [CHAP.  I. 

al.,  11  111.  278.  Nor  do  we  find  any  substantial  departure  in  the  con« 
tract  from  the  authority  proved.  While  we  hold  that  the  authority  to 
the  agent  who  for  his  principal  contracts  for  the  sale  of  land,  need  not 
be  in  writing,  yet  we  should  feel  bound  to  refuse  a  specific  performance 
of  a  contract  made  with  an  agent  upon  parol  authority,  without  full 
and  satisfactory'  proof  of  the  authority,  or  where  it  should  seem  at  all 
doubtful  whether  the  authority  was  not  assumed  and  the  transaction 
fraudulent. 

Decree  reversed  and  cause  remanded.  Decree  reversed. 


SECTION-  V.  (continued). 
(C)    Appoixtment  to  execute  a  Specialty. 

HIBBLEWHITE   v.    McMORINE. 
Exchequer.     1840. 

[6  M.  .j-  W.  200.] 

The  judgment  of  the  court  ^  was  delivered  bj- 

Parke,  B.  In  this  case,  which  was  argued  last  term,  upon  show- 
ing cause  against  a  rule  for  a  new  trial,  we  are  of  opinion  that  the  rule 
must  be  made  absolute. 

It  was  an  action  brought  by  the  plaintiff  to  recover  damages  for 
not  accepting  and  paying  for  fifty  shares  in  the  Brighton  railroad  ; 
which,  by  the  contract,  were  to  be  transferred,  delivered,  and  paid  for 
on  or  before  the  1st  of  March,  1839,  or  at  an}'  intermediate  date  that 
the  defendant  might  require  them,  b}'  paying  for  them  at  par,  together 
with  all  calls  that  might  have  been  paid  on  the  same,  the  plaintiff  bind- 
ing himself  to  execute  to  the  defendant,  or  his  nominee,  a  legal  transfer 
of  the  shares,  on  or  before  the  1st  of  March. 

Tlie  declaration  avers  that  on  the  1st  of  March  the  plaintiff  was 
ready  and  willing  to  transfer  the  shares,  if  the  defendant  would  have 
paid  for  the  same  ;  and  offered  to  the  defendant,  or  an^'  nominee  of 
the  defendant,  a  legal  transfer.  This  averment  was  traversed  in  one 
plea,  and  in  another  it  was  pleaded  that  at  the  time  of  the  agreement, 
or  on  the  1st  March,  or  between  those  times,  the  plaintiff  was  not 
the  proprietor  of  the  shares,  nor  had  he  good  right  or  title  to  execute 
a  legal  transfer  of  such  shares,  according  to  the  agreement. 

The  replication  states  that  on  the  1st  March,  the  plaintiff  was  the 
proprietor  of  the  shares,  and  then  had  good  right  and  title  to  execute 
a  legal  transfer  thereof. 

1  The  opinion  states  the  case.    The  reporter's  statement  is  omitted.  —  Ed. 


SECT,  v.]  HIBBLEWHITE    V.    m'.MORINE.  59 

The  question  for  consideration  arises  on  those  two  pleas.  Upon  one 
or  both,  the  title  of  the  plaintiff  to  make  the  transfer  ma}'  be  ques- 
tioned. It  is  not  material  upon  which  ;  but  there  seems  no  doubt  but 
that  it  arises  on  tlie  traverse  of  the  readiness  to  convey,  which  must 
involve  a  capacity  to  do  so,  as  there  is  no  other  averment  in  tlie  dec- 
laration which  expresses  or  implies  that  the  plaintiff  had  a  title  to 
convey  on  the  1st  of  March.  It  appears  on  the  trial  that  between  the 
date  of  tiie  agreement  and  the  1st  of  March,  some  instalments  became 
due,  which  the  pluiutifT  did  not  pay;  and  on  the  1st  of  March  (before 
which  day  the  defendant  had  not  desired  any  transfer)  the  plaintiff's 
broker,  who  had  purciiased  fifty  shares  from  one  Pritchard,  produced 
to  the  defendant  a  conveyance  executed  b}'  Pritchard,  of  these  shares, 
with  a  blank  for  the  name  of  the  transferee,  and  offered  to  fill  it  up 
with  that  of  the  defendant  or  his  nominee,  on  tlie  defendant's  paying 
tlie  price.  The  defendant  refused  to  do  so.  The  plaintiff  sold  the 
shares,  and  the  action  was  brought  for  the  difference. 

The  objections  to  tlie  plaintiti's  recovering  were,  1st,  that  he  was 
incapable  of  conveying  on  the  1st  of  March,  because  Pritchard  was 
then  the  owner,  and  not  the  plaintiff  ;  2ndly,  that  the  conveyance  was 
invalid  by  the  express  provisions  of  the  Brigliton  Railway  Act,  1  Vict. 
c.  cxix.  sect.  157,  as  the  calls  due  before  that  date  were  not  paid  ;  and 
Srdl}',  that  the  conveyance  tendered  was  void  at  common  law,  as  there 
was  a  blank  in  it  for  the  name  of  the  transferee. 

It  is  unnecessary  for  us  to  give  any  opinion,  except  upon  the  last 
of  these  objections;  but  it  may  not  be  improper  to  observe  that  there 
is  great  weight  in  the  first,  because  tlie  defendant  has  bargained  for  a 
conve3ance  from  the  plahitiff,  which  must  be  intended  to  be  a  convey- 
ance in  the  statutory  form  ;  and,  consequently,  for  the  implied  covenant 
of  the  lilaintiff  for  title,  and  Pritchard's  implied  covenant  is  not  the 
same  thing.  The  last  objection,  however,  we  are  all  of  opinion,  must 
prevail. 

The  second  objection,  which  would  otherwise  have  been  valid,  has 
been  waived,  as  it  appears  on  the  evidence  at  the  trial  that  the  defend- 
ant agreed  that  the  plaintiff  should  not  pay  the  intermediate  instal- 
ments ;  and,  as  the  contract  with  respect  to  shares  of  this  description 
is  not  required  by  the  Statute  of  Frauds  to  be  in  writing,  since  the}'  are 
neither  an  interest  in  land,  nor  goods  and  merchandises,  there  might 
be  a  waiver  by  parol.  As  there  was  such  a  waiver,  the  only  objection 
would  be  to  the  statement  of  the  contract  in  the  declaration,  on  the 
ground  of  variance,  which  ought  to  have  been  made  at  tlie  trial. 

The  conve^'ance  required  by  the  statute  must,  we  think,  be  by  deed ; 
and  a  deed,  with  the  name  of  the  vendee  in  blank  at  the  time  it  was 
sealed  and  delivered  is  void. 

The  instrument  of  transfer,  by  the  15.5th  section,  must  be  under  the 
hands  and  seals  of  both  parties.  It  was  argued  that  it  did  not  follow, 
from  the  instrument  being  under  seal,  that  it  was  a  deed  ;  for  warrants 
of  justices,  subpoenas,  and  awards,  are  under  seal,  and  are  not  deeds. 


60  HIBBLEWHITE    V.    M'MORINE.  [CHAP.  1 

But  this  is  an  instrument  containing  a  contract  of  the  parties ;  if  a 
contract  is  required  to  be  by  instrument  under  seal,  it  must  be  intended 
that  it  should  be  bij  deed:  and  the  context  shows  that  the  legislature 
so  intended  it,  for  it  is  afterwards  called  a  deed  or  conveyance 
(probably  a  synonyme  for  the  same  thing),  and  a  deed  of  sale  or  trans- 
fer, that  is,  a  deed  of  sale  or  of  transfer. 

Assuming,  then,  the  instrument  to  be  a  deed,  it  was  wholl}'  improper, 
if  the  name  of  the  vendee  was  left  out;  and  to  allow  it  to  be  afterwards 
filled  up  by  an  agent  appointed  by  parol,  and  then  delivered  in  the 
absence  of  the  principal,  as  a  deed,  would  be  a  violation  of  the 
principle  that  an  attorne}-  to  execute  and  deliver  a  deed  for  another 
must  himself  be  appointed  by  deed.  The  only  case  cited  in  favor  of 
the  validity  of  a  deed  in  blank,  afterwards  filled  in,  is  that  of  Texira 
V.  Evans,  cit.  1  Anst.  228,  where  Lord  Mansfield  held  that  a  bond 
was  valid  which  was  given  with  the  name  of  the  obligee  and  sum  in 
blank  to  a  broker  to  obtain  mone}'  upon  it,  and  he  borrowed  a  sum 
from  the  plaintiff',  and  then  inserted  his  name  and  the  sum.  But  this 
case  is  justly  questioned  by  Mr.  Preston,  in  his  edition  of  Shepp. 
Touch.  68,  "  as  it  assumes  there  could  be  an  attorne}-  without  deed  ;  " 
and  we  think  it  cannot  be  considered  to  be  law.  On  the  other  hand, 
there  are  several  authorities  that  an  instrument  which  has  a  blank  in 
it,  which  prevents  it  from  having  an}-  operation  when  it  is  sealed  and 
delivered,  cannot  become  a  valid  deed  b}'  being  afterwards  filled  up. 

In  Com.  Dig.  Fait,  A.  1,  it  is  said,  "If  a  deed  be  signed  and 
sealed,  and  afterwards  written,  it  is  no  deed."  .To  the  same  effect  is 
She[)p.  Touch.  54.  In  Weeks  v.  Maillardet,  14  East,  568,  the  instrument 
had  nothing  to  operate  upon,  as  it  referred  to  a  schedule  as  annexed, 
which  was  not  annexed  at  the  time  of  execution  ;  and  it  was  held  that 
the  subsequent  annexation,  in  the  absence  of  one  of  the  parties,  did  not 
give  it  operation  as  part  of  the  deed.  So,  where  a  bail  bond  was 
executed,  and  a  condition  afterwards  inserted,  it  was  held  bad  as  a 
bail  bond.  Powell  v.  Duff,  3  Camp.  181  ;  and  see  Bull.  N.  P.  267. 
The  cases  cited  on  the  other  side  were  all  of  them  distinguishable. 
In  one,  Hudson  v.  Revett,  5  Bing.  372,  a  blank  in  a  part  material  was 
filled  up ;  but,  having  been  done  in  the  presence  of  the  party,  and 
ratified  by  him,  it  was  held  that  there  was  evidence  of  re-delivery. 
In  another.  Doe  v.  Bingham,  4  B.  &  Aid.  672,  the  blanks  filled  up  were 
in  no  respect  material  to  the  operation  of  the  deed,  with  respect  to  the 
party  who  executed  before  they  were  filled  up,  —  as  to  him  the  deed 
was  complete.  In  a  third,  Matson  v.  Booth,  5  M.  &  Sel.  233,  the 
point  decided  was  that  a  complete  bond  was  not  rendered  void  by  the 
subsequent  addition  of  another  obligor  with  the  assent  of  all  parties. 

It  is  unnecessary  to  go  through  the  others  which  were  cited  on  the 
argument.  It  is  enough  to  say  that  there  is  none  that  shows  that  an 
instrument  which  when  executed  is  incapable  of  having  any  opera- 
tion, and  is  no  deed,  can  afterwards  become  a  deed  by  being  com- 
pleted and  delivered  bj'  a  stranger  in  the  absence  of  the  party  who 
executed,  and  unauthorized  by  instrument  under  seal. 


SECT,  v.]  GARDNER    V.    GARDNER.  61 

In  truth,  this  is  an  attempt  to  make  a  deed  transferable  and  negoti- 
able like  a  bill  of  exchange  or  exchequer  bill,  which  the  law  does  not 
permit.  Mule  absolute.^ 


GARDNER  v.   GARDNER. 
Supreme  Judicial  Coukt  of  Massachusetts.     1850. 

(5  CusL  483.] 

This  was  a  writ  of  entry  to  foreclose  a  mortgage  of  land  in  Nan- 
tucket, tried  before  Fletcher,  J.,  in  this  court. 

The  demandant  claimed  as  the  assignee  of  Barker  Burnell,  whose 
title  was  derived  from  a  deed  purporting  to  be  executed  by  Poll}'  Gwinn 
and  by  the  tenant. 

The  conditional  judgment  was  entered  for  the  demandant,  subject  to 
the  opinion  of  the  court  upon  the  question,  whether  the  last-mentioned 
deed  was  properly  executed.  The  subscribing  witness  thereto  testified 
that,  at  the  request  of  the  tenant,  he  went  to  the  house  of  Polly  Gwinn, 
and  there  saw  all  the  parties  sign  the  deed.  When  it  was  time  foi 
Polly  Gwinn  to  sign,  her  daughter,  Mary  G.  Gardner,  offered  to  sign 
for  her  mother,  who  assented  by  a  nod  of  the  head,  and  the  daughto 
then  and  there  signed  her  mother's  name  thus:  "Polly  Gwinn  by 
Mary  G.  Gardner,"  in  the  presence  of  her  mother,  and  of  the  witnesSj 
who  saw  all  the  signatures  made. 

The  case  was  argued  in  writing  by  C  bunker,  for  the  demandant, 
and  T.  G.  Coffin^  for  the  tenant. 

Shaw,  C.  J.  The  only  question  is  upon  the  sufficiency  of  the  exe. 
cution  of  a  mortgage  deed,  as  a  good  and  valid  deed  of  Polly  Gwinn. 
The  execution  of  the  deed  is  objected  to  on  the  ground  that  when  a 
deed  is  executed  b}'  an  agent  or  attorney'  the  authority  to  do  so  must 
be  an  authority  of  as  high  a  nature,  derived  from  an  instrument  under 
the  seal  of  the  grantor.  This  is  a  good  rule  of  law,  but  it  does  not 
apply  to  the  present  case.  The  name  being  written  by  another  hand, 
in  the  presence  of  the  grantor,  and  at  her  request,  is  her  act.  The 
disposing  capacity,  the  act  of  mind,  which  are  the  essential  and  effi- 
cient ingredients  of  the  deed,  are  hers,  and  she  merely  uses  the  hand 
of  another,  through  incapacity  or  weakness,  instead  of  her  own,  to  do 
the  physical  act  of  making  a  written  sign.  Whereas,  in  executing  a 
deed  by  attorney,  the  disposing  power,  though  delegated,  is  with  the 

1  Ace:  Williams  v.  Crntcher,  6  Miss.  71  (1840)  ;  Graham  v.  Holt,  3  Iredell's  Law, 
300  fl84.3) ;  Preston  v.  Hull,  23  Gratt.  600  (1873). 

According  to  Blood  v.  Goodrich,  12  Wend.  525  (1834),  an  admission  that  an  agent 
had  authority  to  execute  a  certain  specialty  is  prima  facie,  evidence  of  an  authonty 
under  seal.  Paine  v.  Tucker,  21  Me.  138  (1842),  is  contra.  See  Tapper  v.  Foulkes,  9 
C.  B.  N.  8.  797  (1861).  — Ed. 


62  BLACKNALL   V.    PARISH.  [CHAP.  L 

attorney,  and  the  deed  takes  effect  from  bis  act ;  and  therefore  the 
power  is  to  be  strictly  examined  and  construed,  and  the  instrument 
conferring  it  is  to  be  proved  b}-  evidence  of  as  high  a  nature  as  the 
deed  itself.  To  hold  otherwise  would  be  to  decide  that  a  person  hav- 
ing a  clear  mind  and  full  capacit3',  but  through  physical  inability  inca- 
pable of  making  a  mark,  could  never  make  a  convej-ance  or  execute  a 
deed  ;  for  the  same  incapacity  to  sign  and  seal  the  principal  deed 
would  prevent  him  from  executing  a  letter  of  attorney  under  seal. 

It  appears  to  us  that  the  distinction  between  writing  one's  name  in 
his  presence  and  at  his  request,  and  executing  a  deed  b}'  attorney,  is 
obvious,  well  founded,  stands  on  satisfactory  reasons,  and  is  well  sus- 
tained by  authorities.  Ball  t'.  Dunsterville,  4  T.  R.  313  ;  The  King  v. 
Longnor,  1  Nev.  &  M.  576  ;  s.  c.  4  B.  &  Ad.  647 ;  2  Gr.  Ev.  §  295. 
We  think  the  deed  was  well  executed  by  Polly  Gwinn ;  and  judgment 
must  therefore  stand  for  the  demandant.^ 


BLACKNALL  v.  PARISH. 
Supreme  Court  of  North  Carolina.     1860. 

[6  Jones'  Eq.  70.] 

Cattse  removed  from  the  Court  of  Equit}'  of  Orange  Count}'. 

This  was  a  bill  filed  for  the  specific  performance  of  a  contract,  by 
which  the  defendant  bound  himself  to  conve}*  the  plaintiff  a  tract  of 
land,  described  by  its  metes  and  bounds,  and  lying  in  Orange  county. 
The  allegations  in  the  bill  (which  are  sustained  by  the  evidence  filed) 
are,  that  the  defendant,  being  about  to  remove  from  the  count}-  of 
Orange,  where  he  lived,  to  the  western  part  of  the  State,  authorized 
one  Harrison  Parker  to  sell  for  him  the  land  in  question,  and  to  enable 
him  to  do  so,  he  prepared  a  deed,  describing  the  premises,  and  pur- 
porting to  convey  the  same  in  fee,  but  leaving  therein  blanks  as  to  the 
name  of  the  bargainee  and  the  price,  with  instructions,  when  he  might 
make  sale  of  the  land,  to  fill  up  the  blanks  in  the  deed,  and  deliver  it 
to  the  purchaser ;  that  afterwards  Parker  made  a  sale  to  the  plaintiff, 
at  a  reasonable  price,  and  accordingly  filled  up  the  deed  in  the  requisite 
particulars,  with  the  name  of  the  plaintiff  and  with  the  price  ;  both 
supposing  the  instrument  was  thus  made  good  as  a  deed  ;  that  Black- 
nail  gave  his  bond  for  the  money  to  the  defendant's  agent,  who  used 
the  same  in  the  purchase  of  a  slave  for  the  defendant,  and  it  was  sub- 
sequently paid  to  defendant's  assignee. 

1  See  Hudson  v.  Revett,  5  Bing.  368  (1829);  Vandruff  r.  Rinehart,  29  Pa.  232 
(1857) ;  Mutual  Benefit  Life  Ins.  Co,  v.  Brown,  30  N.  J.  Eq.  193  (1878).  See  also  the 
discussion  in  Wallace  v.  McCullough,  1  Rich.  Eq.  426,  438-439  (1845),  and  Inhabi- 
tants of  South  Berwick  v.  Huntress,  53  Me.  89,  95-96  (1865).  — Ed. 


SECT,  v.]  BLAGKNALL   V.    PARISH.  63 

The  prayer  of  the  bill  is  for  a  specific  performance  of  the  contract, 
evidenced  by  the  imperfect  deed,  and  to  stay,  by  an  injunction,  the 
proceedings  of  an  action  of  ejectment,  which  the  defendant  had  brought 
against  the  plaintiff,  and  which  was  then  pending  in  the  Superior  Court 
of  Orange  County. 

The  defendant  answered,  denying  the  authority  of  Parker  to  sell  to 
Blacknall,  and  alleging  that  he  had  special  objections  to  plaintiffs 
having  the  land,  which  are  stated  ;  and  that  the  deed  in  question  was 
prepared  for  the  purpose  of  consummating  a  sale  to  one  Hopkins,  with 
whom  he  was  in  treaty  when  he  left  the  county,  and  that  his  agent  had 
no  authority  to  deliver  it  to  an}'  one  else.  He  relied  on  the  Statute  of 
Frauds  as  a  bar  to  the  plaintiffs  equity. 

On  the  coming  in  of  the  answers,  the  injunction,  which  had  issued  ia 
vacation,  was  dissolved,  and  the  bill  continued  over  as  an  original  bill. 
Proofs  were  taken,  which  sustained  the  plaintiffs  allegations  and  dis- 
proved those  of  the  defendant.  The  cause,  being  set  for  hearing,  was 
transmitted  to  this  court  by  consent 

Norwood,  for  the  plaintiff. 

Graham^  for  the  defendant. 

Battle,  J.  Upon  examination  of  the  testimony'  taken  in  this  cause, 
we  are  entirely  satisfied  that  the  land  mentioned  in  the  pleadings  was 
contracted  to  be  sold  to  the  plaintiff  bj'  an  authorized  agent  of  the 
defendant;  that  the  authorit}'  under  which  the  agent  acted  was  b}' 
parol,  and  that  the  contract  was  entered  into  by  the  agent's  filling  up 
certain  blanks  in  an  instrument,  which  the  defendant  had  signed  and 
sealed,  and  left  with  the  agent  to  be  b\-  him  made  complete  b}'  filling 
up  such  blanks  and  delivering  it  as  the  deed  of  the  defendant  to  the 
person  who  should  become  the  purchaser.  We  are  further  satisfied 
that  what  was  intended  to  be  a  sale  was  made  fairly,  and  for  a  price 
which,  at  the  time,  was  not  inadequate,  and  further,  that  the  price  was 
subsequentlv  received  by  the  defendant. 

It  has  been  properl}-  admitted  b}-  the  plaintiff  that  the  instrument 
which  was  delivered  to  him  b\'  the  agent  of  the  defendant  as  a  deed  for 
the  land  in  question  could  not  operate  as  such,  because  it  was  not  com- 
plete when  it  was  signed  and  sealed  b}-  the  defendant.  In  the  case  of 
Davenport  w.  Sleight,  2  Dev.  &  B.  L.  381,  and  again  in  Graham  v. 
Holt,  3  Ired.  L.  300,  it  was  held  that  an  instrument  signed  and  sealed 
in  blank,  and  handed  to  an  agent  onl}'  verballv  authorized  to  fill  up  the 
blank  and  deliver  it,  was  not  the  bond  of  the  principal,  and  that  after 
declarations  of  the  principal  approving  of  the  deliver}-  bj'  the  agent, 
made  in  the  absence  of  the  instrument,  and  without  an}'  act  in  relation 
to  it,  would  not  amount  to  an  adoption  and  ratification  of  the  delivery. 

The  case  before  us  is  one  of  a  deed  for  land,  instead  of  a  bond  for 
the  payment  of  money,  but  the  principle  is  the  same.  The  instrument 
must  be  complete  before  it  can  be  delivered  by  an  agent,  acting  under 
a  mere  parol  authority,  as  the  act  and  deed  of  his  principal. 

The  plaintiff,  not  being  able  to  set  up  a  legal  title  under  the  instru- 


64  BLACKNALL   V.    PARISH.  [CHAP.  I. 

ment  in  question,  insists,  nevertheless,  that  it  is  evidence  of  a  contract, 
the  specific  performance  of  which  he  has  a  right  to  have  enforced  in  a 
court  of  equit}'.  The  defendant  objects  to  this,  and  relies,  in  support 
of  his  objection,  upon  the  statute  of  frauds,  which  declares  ''that  all 
contracts  to  sell  or  convey  any  lands,  etc.,  shall  be  void  and  of  no 
effect  unless  such  contract,  etc.,  or  some  memorandum  or  note  thereof, 
shall  be  put  in  writing,  signed  by  the  party  to  be  charged  therewith,  or 
by  some  other  person  b}-  him  thereunto  lawfully'  authorized,"  etc.  Rev. 
Code,  c.  50,  sec.  11.  The  question,  then,  is:  1.  Whether  the  contract 
for  the  sale  of  the  land  was  put  in  writing  ;  and  2.  Was  it  signed  by 
the  party  to  be  charged  therewith,  or  b}-  an\'  person  b}'  him  thereto  law- 
fully authorized?  We  think  that  tiiere  can  be  no  doubt  that  the  instru- 
ment, which  for  the  reasons  above  stated  could  not  operate  as  a  deed, 
may  be  regarded  as  a  contract  put  in  writing.  It  is  in  truth  a  written 
contract  more  than  ordinaril}'  complete,  both  in  form  and  substance, 
and  the  onl}-  question  admitting  of  an}'  sort  of  doubt  is,  whether  it 
has  been  signed  b}-  the  defendant,  or  by  any  legally  authorized  agent. 
We  are  of  opinion  that  it  cannot  be  considered  as  a  contract  with  the 
plaintiff,  signed  b}'  the  defendant  himself,  independently  of  an}'  act  of 
his  agent,  because,  when  the  defendant  put  his  name  and  seal  to  it,  no 
such  contract  had  been  made.  But  we  think  that,  in  legal  effect,  it 
was  signed  for  him,  and  in  his  name,  by  his  properl}'  constituted 
agent.  The  failure  of  the  agent  to  make  the  instrument  operate  as  the 
deed  of  his  principal,  did  not  prevent  him  from  causing  it  to  operate  as 
tbe  simple  contract  of  his  principal ;  for  nothing  is  more  common  than 
for  an  agent  to  fill  up  blanks  in  a  promissory  note  signed  by  his  prin- 
cipal, and  nobody  has  ever  doubted  that  the  principal  was  bound  by  it. 
That  the  authority  of  the  agent,  in  all  such  cases,  ma}',  under  the  stat- 
ute of  frauds,  be  by  parol,  is  well  settled.  1  Parsons  on  Cont.  42  ;  2 
Kent's  Com.  612 ;  Coles  v.  Trecothic,  9  Ves.  jun.  250. 

The  plaintiff  is  entitled  to  a  decree  for  a  specific  performance,  and 
also  to  recover  back  all  the  costs  which  he  has  been  compelled  to  pay 
in  the  action  of  ejectment  at  law,  and  also  the  costs  which  he  has  had 
to  pay  upon  the  dissolution  of  the  injunction  in  the  court  of  equity 
below ;  to  ascertain  which  an  account  may  be  ordered. 

Per  Curiam,  Decree  accordingly. 


S£UT.  v.]  VOSE   V.   DOLAN.  65 


VOSE  V.  DOLAN. 
Supreme  Judicial  Court  of  Massachusetts.    1871. 

[108  Muss.  155.] 

Tort  for  the  conversion  of  a  lot  of  earth,  gravel,  and  stone.  The 
case  was  referred  by  the  Superior  Court  to  an  arbitrator,  the  material 
parts  of  whose  report  were  as  follows  :  — 

The  parties  agreed  in  writing  on  March  14,  1861,  that  the  defendant 
should  make  certain  streets  and  remove  the  earth  and  gravel  in  certain 
mounds  or  knolls  on  the  plaintiff's  estate  ;  and  the  defendant  began  the 
work,  but  had  not  finished  removing  all  the  earth  and  gravel  on  April 
14,  1864.  The  plaintiff  offered  to  prove  that  on  that  day  the  parties 
signed  and  sealed  an  instrument  in  duplicate,  of  which  the  following  is 
all  that  is  material :  "Memorandum  of  an  agreement  made  this  four- 
teenth day  of  April,  1864,  by  and  between  Thomas  Dolan  and  Francis 
Vose  witnesseth,  that  on  the  fourteenth  day  of  March,  1861,  the  said 
parties  entered  into  an  agreement  in  writing  in  reference  to  making 
certain  streets  and  excavating  and  removing  certain  mounds  or  knolls 
on  an  estate  of  said  Vose  in  Dorchester,  according  to  certain  specifica- 
tions therein  set  out,  and  certain  profiles  made  b}'  Alexander  Wads- 
worth,  and  therein  referred  to,  which  said  agreement  ma}'  be  referred 
to  in  connection  with  this  memorandum  ;  and  whereas  said  agreement 
has  not  been  fulh'  performed  by  said  Dolan,  and  much  earth  and  gravel 
contemplated  b}'  the  parties  to  said  agreement  to  have  been  removed 
according  to  said  specifications  and  profiles  still  remain  on  the  premises 
aforesaid,  the  said  Vose,  in  consideration  of  ,  paid  by 

the  said  Dolan,  herebv  sells,  transfers  and  conve3's  to  the  said  Dolan 
all  the  remaining  earth  and  gravel  on  said  premises,  which  the  parties 
under  said  agreement  intended  should  be  excavated  and  removed 
according  to  the  aforesaid  specifications  and  profiles,  after  completing 
and  grading  the  streets  named  in  said  agreement  as  therein  set  forth, 
and  being  in  quantity  .     The  said  Dolan,  in  considera- 

tion of  the  said  sale  and  transfer,  hereb}'  promises  and  agrees  that  he 
will  faithfully  and  fully,  and  to  the  satisfaction  of  said  Wadsworth, 
execute  and  complete  all  the  filling,  excavating,  and  grading,  contem- 
plated and  agreed  b}-  him  to  be  performed  in  the  aforesaid  agreement, 
and  in  the  manner  therein  specified,  on  or  before  the  first  daj*  of 
August,  1864,  and  will  forfeit  all  right  to  all  earth  or  gravel  which 
shall  remain  on  said  premises  on  said  first  day  of  August,  1864,  and 
which  ought  to  have  been  removed  by  him  in  the  due  and  proper  exe- 
cution of  said  agreement." 

The  plaintiff  further  offered  to  prove  that  the  defendant  then  made 
his  two  promissory  notes,  each  for  the  sum  of  $500,  and  delivered  them 
to  the  plaintiff,  in  part  pa\'ment  for  the  earth,  gravel,  and  stone,  and 

5 


tb  VOSE   V.   DOLAN.  LCHAP.  1. 

signed  another  note,  and  handed  it  to  Wadsworth,  who  was  a  surve3'or, 
a  blank  being  left  therein  for  the  amount ;  tliat  the  quantity  of  earth, 
gravel,  and  stone  remaining  had  not  then  been  ascertained  ;  that  it  was 
agreed  b}'  the  parties  that  Wadsworth  should  measure  and  ascertain  the 
quantity-,  and  should  fill  the  blank  in  the  note  by  inserting  the  total 
price  of  the  earth,  gravel,  and  stone,  at  $1.25  per  square,  less  the  sum 
of  $1,000,  the  amount  of  the  two  notes  of  $500  each;  that  the  said 
instrument  of  two  parts  was  then  executed  by  the  parties,  the  one 
being  taken  by  the  defendant,  and  the  other  b}'  Wadswortli ;  that 
blanks  were  left  in  each  copy  for  the  number  of  squares  sold  and  the 
considerations ;  that  these  blanks  were  to  be  filled  b}'  Wadsworth, 
when  he  should  ascertain  the  quantity ;  that  Wadsworth  did  within 
a  short  time  ascertain  bj-  measurement  the  quantity  to  be  1,808 
squares,  and  the  price  thereof  to  be  $2,260,  and  caused  to  be  inserted 
in  the  note  the  words  "twelve  hundred  and  sixty"  before  the  word 
"dollars,"  and  in  the  cop}'  of  the  instrument  which  he  had  retained, 
the  words  "  eighteen  hundred  and  eight  squares,"  as  the  quantity  sold, 
and  the  words  "  twent}-  two  hundred  and  sixty  dollars,"  as  the  consid- 
eration for  the  sale  ;  and  that  the  blanks  in  the  copy  taken  by  the 
defendant  have  not  been  filled.  To  the  admission  of  this  evidence, 
and  to  the  introduction  in  proof  of  the  instrument  and  of  the  note,  the 
defendant  objected.  But  the  objection  was  overruled.  It  appeared 
that  the  defendant  had  no  notice  of  Wadsworth's  intention  to  fill  the 
blanks,  or  of  how  he  intended  to  fill  them. 

The  refex'ee  found  "  that,  b}'  the  instrument  aforesaid,  the  defendant 
was  bound  to  remove  the  earth,  gravel,  and  stone,  which  he  had  pur- 
chased, by  August  1,  1864;  that  he  failed  to  remove  700  squares, 
through  no  default  of  the  plaintiff;  that  he  thereupon  ceased  to  have 
any  right  of  property  in  the  700  squares,  and  was  a  wrong-doer  in  after- 
wards removing  and  appropriating  them  to  his  use ;  that  the  700 
squares  were  of  the  value  of  $875  ;  that  the  plaintiff  was  entitled  to 
judgment  for  that  sum,  and  interest,  and  his  costs  of  court ;  but  that 
if  the  court  should  be  of  opinion  that  the  above  evidence  should  not 
have  been  received,  or  that  upon  the  evidence  the  instrument  was  not 
the  deed  of  the  defendant,  the  plaintiff  should  take  nothing  by  his  writ, 
and  the  defendant  should  recover  his  costs  of  court." 

Tiie  Superior  Court  ruled  that  the  evidence  was  properly  received, 
and  that  the  instrument  was  the  deed  of  the  defendant,  and  ordered 
judgment  to  be  entered  for  the  plaintiff  for  the  amount  found  by  the 
referee.     The  defendant  alleged  exceptions. 

W.  Colbuni,  for  the  defendant. 

0.  Allen,  for  the  plaintiff. 

Colt,  J.  Upon  the  question  submitted  by  the  report  of  the  referee, 
we  are  clearl}-  of  opinion  that  evidence  of  the  means  taken  to  ascertain 
the  quantity  of  earth,  gravel,  and  stone  which  was  to  be  removed  under 
the  contract  of  April  14,  and  of  the  subsequent  filling  of  the  blanks 
in  the  note  and  sealed  instrument  with  the  ascertained  amounts,  was 


8ECT.  v.]  DICKEKMAN   V.    ASHTON.  67 

properly  received  by  him  ;  and  that  the  instrument  containing  the 
terms  of  the  contract  was  binding  upon  the  defendant  as  his  deed, 
notwithstanding  the  subsequent  filling  of  the  blanks.  It  was  a  com- 
pleted, intelligible  contract  when  it  was  executed.  The  existence  of 
the  blanks  did  not  impair  its  validity.  The  quantity  of  earth  sold  was 
definitely  indicated  by  reference  to  specifications  and  profiles,  and  it 
was  not  necessary  to  state  the  number  of  squares  sold  or  the  price  to 
be  paid  for  them.  This  was  a  matter  of  computation  from  data  given. 
If  the  blanks  had  been  left,  the  rights  of  the  parties  would  have  been 
the  same  as  if  filled  before  delivery.  The  alleged  alteration  of  the 
instrument  was  therefore  an  immaterial  alteration,  in  no  way  changing 
its  terms  or  enlarging  the  defendant's  liabilit}'  under  it.  There  is  no 
pretence  that  it  was  fraudulently  made ;  on  the  contrarj',  the  blanks 
were  filled  by  the  surveyor,  in  accordance  with  the  agreement  of  the 
parties  at  the  time  the  deed  was  executed. 

It  is  now  well  settled  that  an  immaterial  alteration  of  a  sealed  instru- 
ment, not  fraudulent,  will  not  invalidate  it,  though  made  b}-  the  part}' 
claiming  under  it.  Brown  v.  Pinkham,  18  Pick.  172;  Commonwealth 
V.  Emigrant  Industrial  Savings  Bank,  98  Mass.  12  ;  Chessman  v.  Whit- 
temore,  23  Pick.  231  ;  Adams  v.  Frye,  3  Met.  103.  The  case  is  not 
within  those  in  which  it  is  held  that  blanks  in  a  deed  constituting  a 
material  part  of  the  instrument  itself  cannot,  in  the  absence  of  the 
maker,  be  filled  by  parol  authorit}',  because  authority'  to  make  a  deed 
must  be  given  by  deed.  Burns  y.  Lj^nde,  6  Allen,  305  ;  Basford  v. 
Pearson,  9  Allen,  387.  Exceptions  overruled. 


DICKERMAN  v.   ASHTON. 
Supreme  Court  of  Minnesota.     1875. 

[21  Minn.  .538.] 

Appeal  by  defendant  from  an  order  of  the  Court  of  Common  Pleas 
for  Ramsey  County,  Hall,  J.,  presiding,  refusing  a  new  trial,  after  a 
trial  by  the  court  without  a  jury. 

Lorenzo  Allis^  for  appellant. 

Bigeloio^  Flandrau,  &  Clarlc,  for  respondent. 

GiLFiLLAN,  C.  J.  This  is  an  action  to  enforce  specific  performance 
of  a  contract  to  convey  real  estate.  The  contract  was  in  writing,  and 
purported  to  be  under  the  seal  of  the  defendant,  the  vendor,  and  was 
made  on  his  part  by  an  agent,  with  only  oral  authority  to  make  it. 

The  defendant  makes  the  point  that  the  proof  of  the  authority  of  the 
agent  was  not  of  that  clear  and  satisfactory  character  which  a  court  of 
equity  will  insist  upon  as  to  contracts  the  specific  performance  of 
which  is  sought.     But  the  "  statement  of  the  case  "  does  not  show  that 


68  CLOUGH  V.   CLOUGH.  [CHAP.  L 

it  contains  all  the  evidence  on  that  point ;  and  where  such  is  the  case, 
this  court  presumes  that  there  was  sufficient  evidence  to  justify  the 
finding  of  fact  of  the  court  below.     Henry  v.  Hinman,  21  Minn.  378. 

It  was  decided  in  Brown  v.  Eaton,  21  Minn.  409,  that  the  authority 
of  an  agent  to  make  such  a  contract  need  not  be  in  writing. 

The  defendant  objects  that  the  contract  is  void,  because  it  purports 
to  be  a  specialty,  and  that  the  authority  of  an  agent  to  bind  his 
principal  by  contract  under  seal  must  also  be  under  seal.  The  proposi- 
tion is  true,  that  an  agent,  not  authorized  by  deed,  cannot  execute  a 
contract  which  shall  be  valid,  as  a  deed  or  specialty,  against  his  prin- 
cipal. But  in  such  case,  if  the  contract  need  not  be  by  deed,  it  will 
be  valid  as  a  simple  contract,  nothwithstanding  a  seal  is  attached  to  it. 
Minor  v.  Willoughby,  3  Minn.  225.  The  order  denying  a  new  trial  is 
affirmed.^ 


JOSEPH   E.    CLOUGH   and  others   v.  WILLIAM  M.   CLOUGH- 

Supreme  Judicial  Court  of  Maine.     1882. 

[73  Me.  487.] 

On  report. 

Writ  of  entry,  dated  September  3,  1880. 

Plea,  general  issue. 

At  the  trial  the  defendant  offered  in  evidence  the  deed  of  John 
Clough  to  him.  The  plaintiffs  objected  to  the  deed  upon  the  ground 
that  it  was  not  properly  executed.  For  the  purposes  of  this  trial  it 
was  admitted  that  the  name  of  the  grantor  in  the  deed  was  signed 
by  the  grantee,  at  the  grantor's  request  and  in  his  presence,  and 
that  the  grantor  personally  acknowledged  the  deed,  and  that  it  was 
duly  delivered  to  the  defendant.  The  case  was  then  submitted  to  the 
law  court.  If  such  a  deed  is  valid  in  law  the  case  is  to  stand  for  trial ; 
if  not,  default  is  to  be  entered. 

A.  P.  Gould,  for  the  plaintiffs,  contended  that  when  one  person 
writes  the  name  of  another  at  his  request,  he  does  it  as  agent. 

Thus  if  A.  writes  B.'s  name  to  a  deed,  to  assert  that  because  B.  is 
present,  giving  personal  and  verbal  authority  to  A.,  A.  becomes  B., 
that  it  is  B.'s  own  act  precisely  as  if  no  person  was  acting  but  himself, 
and  no  act  of  agency  is  done,  is  too  transparent  a  sophism  to  be 
adopted  by  a  court  of  law. 

The  grantee  cannot  take  the  acknowledgment  of  the  grantor.  Bea- 
man  v.  Whitney,  20  Maine,  413 ;  Gibson  v.  Norway  Savings  Bank,  69 
Maine,  579. 

»  See  Worrall  v.  Mmm,  5  N.  Y.  229,  238-243  (1851),  Jones  v.  Horner,  60  Pa.  214 
(1869),  Long  i'.  Hartwell,  34  N.  J.  L.  116,  121-122  (1870),  ace;  and  Wheeler  v. 
Nevins,  34  Me.  54  (1852),  contra.  See  also  Russell  v.  Anuable,  109  Mass.  72.  74.  77 
(1871).  — Ed. 


SECT,  v.]  CLOUGH   V.    CLOUGH.  69 

How  vastly  more  important  that  the  signature  of  the  grantor  should 
be  affixed  by  a  disinterested  person.  A  deed  is  good  without  acknowl- 
edgment, that  being  required  simply  before  recording.  See  Wash. 
Real  Prop.  (2  ed.)  601  (575). 

To  allow  the  grantee  to  act  as  agent  of  the  grantor  in  executing  the 
deed,  would  be  a  violation  of  one  of  the  cardinal  rules  of  the  law  of 
agency. 

C.  E.  Littlejield,  for  the  defendant,  cited :  Bird  v.  Decker,  64  Maine, 
552;  Lovejoy  v.  Richardson,  68  Maine,  386  ;  Bartlett  v.  Drake,  100 
Mass.  174;  Holbrook  r.  Chamberlain,  116  Mass.  155;  Wellington  u. 
Jackson,  121  Mass.  159  ;  Alhim  v.  Perry,  68  Maine,  234  ;  Wood  v. 
Goodridge,  6  Cush.   117;  3  Wash.  Real  Prop.  120. 

\Valton,  J.  The  only  question  is  whether  a  deed  can  be  made 
valid  b}'  subsequent  acknowledgment  and  delivery,  when  the  name  of 
the  grantor  has  been  signed  to  it  b}'  the  grantee.  We  think  it 
can. 

If  one  acknowledges  and  delivers  a  deed  which  has  his  name  and  a 
seal  affixed  to  it,  the  deed  is  valid.  No  matter  by  whom  the  name  and 
seal  were  affixed.  No  matter  whether  with  or  without  the  grantor's 
consent.  The  acknowledgment  and  delivery  are  acts  of  recognition 
and  adoption  so  distinct  and  emphatic  that  they  will  preclude  the 
grantor  from  afterward  denying  that  the  signing  and  sealing  were  also 
his  acts.  The}-  are  his  by  adoption.  Without  deliver}'  the  instrument 
has  no  validit}'.  B}-  force  of  our  statutes  the  instrument  is  incomplete 
without  acknowledgment.  Till  one  or  both  of  these  acts  are  performed 
the  instrument  has  no  more  validit}'  than  a  blank  deed.  By  taking  the 
instrument  in  this  incomplete  condition  and  completing  it,  the  grantor 
makes  it  his  deed  in  all  its  particulars.  He  adopts  the  signature  and 
the  seal  the  same  as  he  does  the  habendum  and  the  covenants  which 
were  inserted  bv  the  printer  of  the  blank.  The  deed  is  not  sustained 
on  the  ground  of  ratification,  but  adoption.  Ratification  applies  to 
agenc\'.  No  question  of  agenc\'  arises  in  this  class  of  cases.  The  valid- 
ity of  the  deed  cannot  rest  upon  the  ground  of  agenc\'  or  ratification. 
If  such  were  the  case  the  authority  or  the  ratification  would  have  to  be 
by  instrument  under  seal ;  for  authority  or  ratification  must  be  of  as 
high  a  character  as  the  act  to  be  performed  or  ratified.  If  the  act  is 
the  execution  of  a  sealed  instrument,  it  must  be  authorized  or  ratified 
by  a  sealed  instrument.  We  therefore  repeat  that  the  validity  of  the 
instrument  in  this  class  of  cases  does  not  rest  on  agency  or  ratification, 
but  on  adoption.  No  matter  by  whom  the  signing  and  sealing  were 
performed,  nor  whether  with  or  without  the  grantor's  consent.  By 
completing  the  instrument,  he  adopts  what  had  previously  been  dono 
to  it,  and  makes  it  his  in  all  its  particulars. 

It  is  not  often  important  to  notice  this  distinction  ;  but  it  is  impor- 
tant in  this  case  in  order  to  avoid  the  apparent  absurdity  of  holding 
that  an  agent  can  contract  with  himself,  can  be  both  grantor  and 
grantee.     An   agent   cannot   contract   with   himself.     He   cannot    as 


70  WHITE   V.    DUGGAN.  [CHAP.  L 

agent  for  the  grantor  execute  a  deed  to  himself.  But  he  can  prepare 
a  deed  running  to  himself,  even  to  the  signing  and  sealing,  and  if  tlie 
grantor  then  adopts  the  deed  by  personal!}'  acknowledging  and  deliver- 
ing it,  it  will  be  a  legal  and  valid  instrument.  But  its  validity  rests 
upon  the  ground  of  adoption,  not  agenc}'  or  ratification.  And  when 
the  word  "ratified"  or  "  ratification  "  is  used  in  this  class  of  cases, 
as  it  often  is,  it  will  be  found  on  careful  examination  that  it  is  used  in 
the  sense  of  "  adopted"  or  "  adoption,"  and  not  in  the  technical  sense 
in  which  it  is  used  in  the  law  of  agency.  Bartlett  v.  Drake,  100  Mass. 
174 ;  Story  on  Agency,  §§  49  and  252  ;  Lovejoy  v.  Richardson,  68 
Maine,  386,  and  cases  there  cited. 

Action  to  stand  for  trial. 


WHITE,   Judge  of  Probate,  v.  DUGGAN  and  Others. 
Supreme  Judicial   Court  of  Massachusetts.     1885. 

[140   Mass.    18.] 

Holmes,  J.  This  is  an  action  on  a  probate  bond.  The  following 
facts  are  relied  on  as  a  defence  b}'  the  sureties.  Having  signed 
another  bond  which  turned  out  to  be  wrong  in  form,  they  signed  this 
one  in  blank  at  their  piincipal's  request,  and  upon  his  representation 
that  the  penal  sum  in  the  former  bond  ($2000)  was  satisfactory,  and 
that  the  new  bond  was  to  be  for  the  same  amount.  The  principal 
filled  out  the  blank  with  a  larger  penal  sura,  and  delivered  the  bond, 
but  subseqnentl}'  told  the  sureties  that  it  was  in  the  penal  sum  of 
$2000,  which  the)'  believed  until  after  this  action  was  brought. 

It  does  not  appear  in  terms  that  the  representation  that  the  penal 
sum  of  the  former  bond  was  satisfactory  was  false,  or  that  the  judge  of 
probate  did  not  require  the  larger  sum  for  the  first  time  when  the 
second  bond  was  offered.  And  if  the  bill  of  exceptions  should  be 
taken  at  all  strictly  against  the  defendants,  it  would  seem  that  what- 
ever expectations  they  may  have  entertained  as  to  the  action  of  the 
Probate  Court  when  they  handed  the  blank  bond  over  to  their  principal, 
they  handed  it  to  him  to  be  filled  in  as  the  Probate  Court  might 
require,  being  chargeable  with  knowledge  that  the  time  for  final  action 
upon  the  matter  had  not  yet  come.  In  this  view  of  the  facts,  the  only 
question  is  whether  the  case  is  governed  by  Burns  v.  Lynde,  6  Allen, 
305,  and,  more  especially,  by  Basford  v.  Pearson,  9  Allen,  387  ;  and 
we  are  of  opinion  that  it  is  not.  In  Burns  v.  L3'nde,  a  deed  had  been 
delivered  executed  in  blank,  and  a  parol  authorit}'  was  relied  on  to 
make  valid  a  subsequent  filling  in  of  the  blanks  in  the  absence  of  the 
grantor.  The  filling  in  of  the  blanks  stood  on  the  same  footing  as 
signing  and  sealing,  and  could  be  authorized  only  by  a  power  under 
seal.     Basford  v.   Pearson  applied   the   same  principle,    without  fur- 


SECT,  v.]  WHITE   V.   DUGGAN.  71 

ther  discussion,  where  a  deed  was  signed  and  sealed  b}'  husband 
and  wife,  and  he  subsequently  filled  in  the  blanks  and  made  altera- 
tions, with  the  knowledge  of  the  grantee,  in  the  absence  of  the  wife 
and  by  her  parol  authority,  and  then  delivered  the  deed.  It  may  be 
somewhat  hard  to  reconcile  the  latter  case  with  those  decisions  which 
sustain  the  filling  in  of  blanks  in  the  presence  of  a  party  who  has 
previously  signed  and  sealed,  even  after  delivery,  on  the  ground 
that  this  is  equivalent  to  a  new  deliver^'.  For  the  reason  given 
imports  that  an  authorized  deliver}-  will  cure  a  defect  of  authority 
in  the  writing,  which  seems  indisputable.  2  Bl.  Com.  307.  Perkins, 
pi.  130.  But  we  do  not  understand  that  it  was  intended  to  deny  this 
principle,  as  it  is  expressly  recognized  by  the  same  judge  in  Burns  y. 
Lynde,  6  Allen,  310.  At  all  events,  when  the  grantee  or  obligee  is 
ignorant  of  the  order  in  which  the  several  parts  of  the  instrument  are 
written,  and  the  delivery  to  him  is  duly  authorized,  he  is  entitled  to 
assume  that  the  instrument  was  so  written  as  to  bind  the  grantor  or 
obligor  from  whose  control  it  comes.  We  should  add  that,  in  this 
commonwealth  at  least,  we  cannot  question  for  an  instant  that  the 
authority  to  deliver  mereh*  may  be  given  b}'  parol.  This  does  not 
seem  to  have  been  doubted  in  Basford  v.  Pearson.  See  Parker  y. 
Hiil,  8  Met.  447  ;  Foster  v.  Mansfield,  3  Met.  412.  To  admit  a  doubt 
on  this  point  would  shake  many  titles. 

If  we  are  to  interpret  the  bill  of  exceptions  more  tavorably  for  the 
defendants  than  we  have  done  thus  far,  and  to  take  it  that  they  onlj 
authorized  the  bond  to  be  filled  in  with  a  penal  sum  of  S2000,  —  and 
even  if  we  take  the  further  step  of  assuming  that  limitation  to  have 
carried  with  it  the  understanding  between  them  and  the  principal  that 
they  onh'  assented  to  a  deliver}-  if  the  bond  was  filled  in  as  they 
expected  it  to  be,  —  we  are  still  of  opinion  that  no  defence  is  made 
out.  We  are  aware  that  there  are  several  cases  more  or  less  opposed 
to  our  conclusion.  People  v.  Bostwick,  32  N.  Y.  445  ;  Ohio  v.  Boring, 
15  Ohio,  507 ;  United  States  v.  Nelson,  2  Brock,  64 ;  Preston  v. 
Hull,  23  Grat.  600,  and  cases  cited.  But  we  think  that  the  prevailing 
tendencv,  both  in  this  State  and  elsewhere,  has  been  in  the  direction 
we  have  taken.  Thomas  v.  Bleakie,  136  Mass.  568  ;  Butler  v.  United 
States,  21  Wall.  272  ;  Dair  v.  United  States,  16  Wall.  1 ;  South  Ber- 
wick V.  Huntress,  53  Maine,  89  ;  State  v.  Peck,  53  Maine,  284 ;  State 
V.  Pepper,  31  Ind.  76  ;  Millett  v.  Parker,  2  Met.  (Ky.)  608. 

These  decisions  are  generall}'  put  on  the  ground  of  estoppel.  It  has 
been  debated  in  England  whether,  and  under  what  circumstances, 
there  could  be  an  estoppel  by  negligence.  Swan  v.  North  British 
Australasian  Co.,  2  H.  &  C  175.  And  it  has  been  admitted  that  there 
might  be,  in  a  supposed  case  hardh-  as  strong  as  this.  Tayler  v. 
Great  Indian  Peninsula  Railwa}-,  4  DeG.  &  J.  559,  574.  A  specialty 
deriving  its  validit}-  from  an  estoppel  in  pais  is  perhaps  somewhat  like 
Nebuchadnezzar's  image  with  a  head  of  gold  supported  by  feet  of  clay. 
But  if  the  case  is  properl}-  put  on  that  ground,  then,  as  was  pointed 


72  PHELPS   V.   SULLIVAN.  [CHAP.  I 

out  in  Commonwealth  v.  Pierce,  138  Mass.  165,  the  difference  between 
intent  and  negligence,  in  a  legal  sense,  is  ordinarily'  nothing  but  the 
difference  in  the  probability,  under  the  circumstances  known  to  the 
actor  and  according  to  common  experience,  that  a  certain  consequence, 
or  class  of  consequences,  will  follow  from  a  certain  act ;  and  it  follows 
that  the  question  when  an  estoppel  will  arise  is  simply  one  of  degree. 
If,  on  the  other  hand,  the  true  question  is  the  scope  of  the  principal's 
authority  to  deliver  the  bond,  —  bearing  in  mind  that  an  authorized  deliv- 
er}' will  cure  defects  in  the  writing  of  the  bond,  that  the  authority  to 
deliver  may  be  by  parol,  and  that  the  scope  of  authority  maj'  be  greater 
than  is  wished  by  the  obligor,  ostensible  authorit}-  being  actual  authority, 
— then  the  question  is  equally  one  of  degree,  depending  on  the  partic- 
ular circumstances,  just  as  the  same  question  is  in  tort.  Quacunqiie  via, 
then,  all  that  we  have  to  do  is  to  deal  with  the  case  before  us  ;  and  it 
will  serve  no  useful  purpose  to  consider  whether,  if  the  surety  had 
intrusted  the  bond  to  the  principal,  with  no  authority  to  deliver  it  at 
all,  or  whether,  if  he  had  handed  a  blank  sheet  of  paper,  with  his  sig- 
nature and  seal  at  the  bottom,  to  an  agent,  directing  him  to  deliver  it 
filled  out  one  wa}',  and  he  had  filled  it  out  in  an  entirely'  different  way 
and  delivered  it,  such  cases  would  fall  on  one  or  the  other  side  of  the 
line.  We  are  of  opinion  that,  when  a  bond  such  as  this  is  intrusted  to 
the  principal  for  his  use,  to  fill  it  up  and  deliver  it,  the  possibility  of 
his  being  required  by  the  probate  judge  to  insert  a  penal  sum  larger 
than  the  suret}"  directed,  and  of  his  doing  so,  is  so  obvious  and  so  near, 
that  the  surety  must  be  held  to  take  the  risk  of  his  principal's  conduct, 
and  is  bound  b}'  the  instrument  as  deliv^ered,  although  delivered  in 
disobedience  of  orders,  if,  as  here,  the  obligee  has  no  notice,  from  the 
face  of  the  bond  or  otherwise,  of  the  breach  of  orders.  To  hold  other- 
wise would  be  to  disregard  the  habits  of  the  community. 

Exceptions  overruled} 

J.  L.  Eldr'idge  &  J.  E.  Cotter^  for  one  suret}'. 

E.  G.  Pratt,  for  the  other  suret}'. 

J.  F.  Wiggin  &  B.  M.  Fernald,  for  the  plaintiff. 


PHELPS  V.   SULLIVAN. 
Supreme  Judicial  Court  of  Massachusetts.     1885. 

[140  Mass.  36.] 

Morton,  C.  J.  This  is  a  writ  of  entry  to  forclose  a  mortgage.  The 
demandant  claims  under  a  mortgage  from  the  tenant  to  Nathan  P. 
Pratt  and  an  assignment  thereof  b}-  said  Pratt.  It  appeared  at  the 
trial,  that  said  Pratt  executed   and  acknowledged  the  assignment  in 

*  Compare  Goodyear  Dental  Vulcanite  Co.  v.  Bacon,  151  Mass.  460  (1890).  —  Ed. 


SF^T-  v.]  PHELPS    V.    SULLIVAN.  75 

blank,  and  orall}-  authorized  his  son,  when  he  could  find  a  person  to 
purchase  the  mortgage,  to  write  in  the  name  of  such  person  as  the  gran- 
tee, and  to  deliver  the  assignment.  The  son  negotiated  the  mortgage 
to  one  Simonds,  filled  in  his  name  as  grantee,  and  then  delivered  to  him 
the  assignment.  He  afterwards  reported  what  he  had  done  to  Nathan 
P.  Pratt,  who  replied,  "  It  is  all  right."  The  only  question  presented 
by  the  bill  of  exceptions  is  whether,  upon  these  facts,  there  was  a  valid 
assignment  to  Simonds. 

The  tenant  contends  that  the  assignment  was  invalid,  reiving  upon 
the  rule  of  the  common  law  that  an  authority  to  an  agent  to  execute 
a  deed  or  other  specialty  must  be  under  seal.  But  we  do  not  think 
the  case  is  governed  by  this  rule.  Where  a  deed  purports  to  be 
executed  by  an  agent,  or  where  the  person  with  whom  an  agent  is 
dealing  knows  that  he  is  acting  as  agent,  it  ma}'  be  tliat  such  person 
must  see  to  it  at  his  own  peril  that  the  agent  has  legal  autliority. 
But  in  this  case  the  assignment  did  not  disclose,  and  Simonds  did  not 
know,  that  the  son  was  acting  as  agent  in  any  respect  except  to  deliver 
the  assignment.  It  is  settled  that  an  authority  to  deliver  a  deed  or 
other  specialty  may  be  bj'  parol.  Parker  v.  Hill,  8  Met.  447.  A  deed 
takes  effect  from  its  delivery  ;  and  it  ma^-  well  be  held  that  the  author- 
ity to  deliver,  which  may  be  oral,  is  an  authority  to  dehver  the  deed 
in  the  condition  in  which  it  is  when  delivered,  if  there  are  no  circum- 
stances of  suspicion  to  put  the  grantee  upon  inquiry.  When  a  grantor 
signs  and  seals  a  deed,  leaving  unfilled  blanks,  and  gives  it  to  an 
agent  with  authority-  to  fill  the  blanks  and  deliver  it,  if  the  agent  fills 
the  blanks  as  authorized,  and  delivers  it  to  an  innocent  grantee  without 
knowledge,  we  think  the  grantor  is  estopped  to  deny  that  the  deed 
as  delivered  was  his  deed.  Otherwise,  he  may  by  his  voluntary  act 
enable  his  agent  to  commit  a  fraud  upon  an  innocent  party.  Whether, 
if  the  agent  violates  the  instructions  in  filling  the  blanks,  the  grantor 
would  not  in  like  manner  be  bound,  we  do  not  discuss,  as  it  is  not 
involved  in  this  case.  To  hold  that  such  deeds  are  invalid,  because 
the  authority  to  fill  the  blanks  is  not  under  seal,  would  tend  to  unsettle 
titles,  and  would  be  mischievous  in  its  results.  Few  deeds  are 
written  by  the  grantors.  Most  are  written  b}-  scriveners,  and  a 
grantee  to  whom  a  deed  is  delivered  has  no  means  of  determining 
whether  the  bod}'  of  the  deed  was  written  before  or  after  the  signature 
was  affixed.  It  would  be  very  dangerous  to  allow  titles  to  be  defeated 
by  parol  proof  that  a  deed,  without  suspicion  on  its  face,  dul}-  signed 
and  sealed  b}-  the  grantor,  which  he  authorized  to  be  delivered,  was  in 
fact  written  in  some  part  after  he  executed  it,  by  an  agent  having  only 
oral  authority.  We  think  a  person  taking  such  a  deed  in  good  faith 
has  the  right  to  rely  upon  it ;  and  that  the  grantor  cannot  be  permitted 
to  aver  that  it  is  not  his  deed.     White  u.  Duggan,  ante.,  18. 

The  cases  of  Burns  v.  Lynde,  6  Allen,  305,  and  Basford  v.  Pearson, 
9  Allen,  387,  are  distinguishable  from  this  case.  In  Burns  v.  L3'nde, 
the  deed  had  been  delivered  to  the  grantee  signed  in  blank,  and  ha 


74  CRIBBEN    V,  DEAL.  [CHAP.  I. 

himself,  after  the  delivery,  filled  the  blanks.  In  Basford  v.  Pearson,  a 
deed  had  been  signed  by  the  defendant  in  which  the  name  of  the 
grantee  was  left  blank.  The  deed  contained  the  covenant  against 
the  claims  of  "  all  persons  claiming  by,  through,  or  under  us,  but 
against  none  others."  The  grantor  gave  it  to  her  Imsband  to  be  de- 
livered. He,  by  parol  authority  from  his  wife,  but  in  her  absence, 
and  with  the  knowledge  of  the  grantee,  inserted  the  name  of  the 
grantee,  and  erased  the  words  which  limited  the  covenant,  so  as  to 
make  it  a  general  covenant  of  warranty  against  all  persons.  He  then 
delivered  the  deed.  If  he  had  made  these  material  altei-ations  b}' 
parol  authority  from  his  wife,  and  without  the  knowledge  of  the 
grantee,  a  different  question  would  have  been  presented,  more  nearly 
resembling  the  question  before  us. 

Upon  the  facts  presented  in  the  bill  of  exceptions,  we  are  of  opinion 
that  the  assignment  to  Simonds  was  valid  ;  and  therefore  that  the  ruling 
ordering  judgment  for  the  tenant  was  erroneous. 

Exceptions  sustained} 

G.  H.  Stevens,  for  the  demandant. 

S.  Bancroft,  for  the  tenant. 


CRIBBEN   V.  DEAL. 
Supreme  Court  of  Oregon.     1891. 

[21    Ore.  211.] 

Multnomah  Count}-.  L.  B.  Stearns,  Judge.  Plaintiff  appeals. 
Affirmed. 

W.  31.  Gregory,  for  appellant. 

Killin,  Starr,  <&  Thomas  for  respondent. 

Lord,  J.  This  is  a  suit  in  equit}',  brought  b}-  the  plaintiffs  to  have  a 
deed  of  general  assignment  set  aside  and  declared  void,  and  to  have 
the  attached  propert}'  applied  in  payment  of  their  judgment.  The 
single  proposition  of  law  involved  is,  whether  the  name  of  the  grantee 
can,  by  some  one  authorized  upon  parol  authority  of  the  grantor,  be 
inserted  in  a  blank  left  in  a  deed  of  general  assignment,  after  the  deed 
has  been  signed,  sealed,  and  acknowledged,  but  before  delivery.  For  the 
purposes  of  this  case,  the  facts  are  these  :  that  the  deed  of  assignment 
was  made  on  the  17th  of  November,  1888,  by  C.  E.  Deal.  -T.  C.  O'Reilly, 
and  J.  W.  Brockett,  partners  doing  business  under  the  firm  name  of 
Deal,  O'Reilly,  &  Co.,  to  Thomas  Connell  for  the  benefit  of  creditors  : 
that  it  was  in  all  things  completed  and  signed  and  sealed  and  acknowl- 
edged, except  that  a  blank  was  left  for  the  name  of  the  grantee  ;  that 
Mr.  F.  A.  E.  Starr  was  authorized  to  insert  as  the  name  of  such  grantee 

1  Ace. :  Nelson  v.  McDonald,  80  Wis.  605  (1891).  —Ed. 


SECT,  v.]  CRIBBEN   V.   DEAL.  75 

any  person  satisfactory  to  himself  and  the  members  of  such  firm  ;  that 
on  the  following  da}',  Mr.  Starr,  with  the  consent  of  the  members  of 
sucli  firm,  inserted  the  name  of  Thomas  Connell  as  assignee  in  such 
deed,  and  the  deed  was  delivered  to  Thomas  Connell,  and  on  the  next 
day  was  recorded.  Upon  this  state  of  facts,  the  contention  is  that 
such  deed  is  void  because  the  name  of  Thomas  Council  was  not  in- 
serted when  the  deed  was  signed  and  sealed. 

It  is  said  in  Sheppard's  Touchstone,  54,  that  "  every  deed  well  made 
must  be  written,  i.  e.,  the  agreement  must  all  be  written  before  the 
sealing  and  delivery  of  it ;  for  if  a  man  seal  and  deliver  an  empty  piece 
of  paper  or  parchment,  albeit  he  do  therewithal  give  commandment 
that  an  obligation  or  other  matter  shall  be  written  in  it,  and  this  be 
done  accordingly,  yet  this  is  no  good  deed."  This  is  founded  upon 
that  ancient  and  technical  rule  of  the  common  law,  that  the  authority 
to  make  a  deed,  or  to  alter  or  fill  a  blank  in  some  substantial  part  of  it, 
cannot  be  verbally  conferred,  but  must  be  created  by  an  instrument  of 
equal  dignit}'.  As  the  deed  was  under  seal,  to  alter  or  complete  it  by 
the  insertion  of  the  name  of  the  grantee  required  the  authoritv  to  be 
under  seal.  So  firmly  rooted  was  this  principle  that  it  mattered  not 
with  what  solemnities  a  deed  may  have  been  signed  and  sealed,  unless 
the  grantee's  name  was  inserted,  and  delivery  was  made  by  him,  or 
some  one  legall}'  authorized  under  seal,  it  was  a  nullity.  It  imposed 
no  liability  on  the  party  making  it,  nor  conferred  an}'  rights  upon  the 
party  receiving  it ;  it  was,  in  fact,  no  deed.  Hence,  it  was  held  that 
parol  authority  to  fill  a  blank  with  the  name  of  a  grantee  could  not  be 
conferred  without  violating  established  principles  of  law,  and  rendering 
the  deed  void.     Tliis  doctrine  still  prevails  in  England. 

It  is  true  that  in  the  case  of  Texira  v.  Evans,  cited  in  Master  v. 
Miller,  1  Anstr.  225,  Lord  Mansfield  held  otherwise  ;  but  this  was  in 
effect  overruled  in  Hibble white  v.  McMorine,  6  Mees.  &  W.  200,  on 
the  ground  that  an  authority  to  execute  a  sealed  instrument  could  not 
be  given  by  parol,  but  must  be  given  by  deed,  although  this  latter  case 
.seems  more  or  less  trenched  upon  b}'  the  decision  in  Eggleston  v.  Gut- 
teridge,  11  Mees.  &  W.  465,  and  by  Davison  v.  Cooper,  11  Mees.  & 
W.  778,  and  in  West  v.  Steward,  11  Mees.  &  W.  47.  But  the  rule 
has  never  been  universally  accepted  in  this  country ;  and  however 
the  holding  of  some  courts  may  be,  still  the  better  opinion  and  the 
prevailing  current  of  authority  is,  that  when  a  deed  is  regular!}^  exe- 
cuted in  other  respects,  with  a  blank  left  therein  for  the  name  of  the 
grantee,  parol  authorit}'  is  sufficient  to  authorize  the  insertion  of  the 
name  of  such  grantee,  and  that  when  so  filled  out  and  delivered,  it  is 
a  valid  deed. 

It  is  true  that  Chief  Justice  Marshall,  in  United  States  v.  Nelson,  2 
Brock.  74,  felt  bound  to  follow  the  ancient  rule  ;  but  his  opinion  clearly 
indicates  he  felt  that  the  authority  to  fill  a  blank  in  an  instrument 
under  seal  should  be  held  to  be  valid.  lie  says  :  "  The  case  of  Speake 
V.  United  States,  9  Cranch,  28,  in  determining  that  parol  evidence  of 


76  CRIBBEN    V.    DEAL.  [CHAP.  L 

such  assent  ma}'  be  received,  undoubtedly  goes  far  toward  deciding  it» 
and  it  is  probable  that  the  same  court  may  completely  abolish  the  dis- 
tinction in  this  particular  between  sealed  and  unsealed  instruments." 
Again  :  "If  this  question  depended  on  those  moral  rules  of  action 
which  in  the  ordinar}'  course  of  things  are  applied  by  courts  to  human 
transactions,  there  would  not  be  much  difficulty  in  saying  that  this 
paper  ought  to  have  the  effect  which  the  parties  at  the  time  of  its 
execution  intended  it  should  have."  And  he  concludes  with  this  state- 
ment:  "I  say  with  much  doubt,  and  with  a  strong  belief  that  this 
judgment  will  be  reversed,  that  the  law  on  the  verdict  is,  in  my  opinion, 
with  the  defendants." 

The  rule  was  purely  technical,  and  the  outgrowth  of  a  state  of  aff'airs 
and  condition  of  the  law  which  does  not  now  exist.  The  reason  of  the 
law  is  the  life  of  it,  and  when  the  reason  fails,  the  law  itself  should  fail. 
At  the  present  day  the  distinction  between  sealed  and  unsealed  instru- 
ments is  fast  disappearing,  and  the  courts  are  gradually  doing  away 
with  them.  As  Judge  Redfield  said:  "But  it  [the  rule]  seems  to  be 
rather  technical  than  substantial,  and  to  found  itself  either  on  the 
policy  of  the  stamp  duties,  or  the  superior  force  and  sacredness  of 
contracts  b}-  deed,  both  of  which  have  little  importance  in  this  countr}'. 
And  the  prevailing  current  of  American  authorit}',  and  the  practical 
instincts  and  business  experience  and  sense  of  our  people,  are  undoubt- 
edly otherwise."     1  Redfield  on  Law  of  Railways,  124. 

In  Drury  v.  Foster,  2  Wall.  24,  the  court  says  :  "Although  it  was 
at  one  time  doubted  whether  parol  authority'  was  adequate  to  autliorize 
an  alteration  or  addition  to  a  sealed  instrument,  the  better  opinion  of 
this  da}'  is  that  the  power  is  sufficient."  Again,  in  Allen  v.  Withrow, 
110  U.  S.  119,  the  court  says  :  "It  may  be  and  probably  is  the  law  in 
Iowa,  as  in  several  States,  that  the  grantors  in  a  deed  conveying  real 
property,  signed  and  acknowledged  with  a  blank  for  the  name  of  a 
grantee,  may  authorize  another  party  by  parol  to  fill  up  the  ])lank." 
"  But, "  he  continues,  "there  are  two  conditions  essential  to  make  a 
deed  thus  executed  in  blank  operate  as  a  conveyance  of  the  property 
described  in  it :  the  blank  must  be  filled  by  the  part}^  authorized  to  fill 
it,  and  this  must  be  done  before  or  at  the  time  of  the  delivery  of  the 
deed  to  the  grantee  named."  In  the  case  at  bar  these  conditions  were 
fulfilled. 

In  Inhabitants,  &c.,  v.  Huntress,  53  Me.  89,  87  Am.  Dec.  535,  the 
court  held  that  a  party  executing  a  deed,  bond,  or  other  instrument, 
and  delivering  the  same  to  another  as  his  deed,  knowing  there  are 
blanks  in  it  to  be  filled  necessary  to  make  it  a  perfect  instrument,  must 
be  considered  as  agreeing  that  the  blanks  may  be  thus  filled  after  he 
has  executed  it.  In  delivering  the  opinion  of  the  court,  Kent,  J.,  said  : 
"The  rule  invoked  is  purely  technical.  Practicall}'  there  is  no  real 
distinction  in  this  matter  between  bonds  and  simple  contracts.  There 
is  no  more  danger  of  fraud  or  injury  or  wrong  in  allowing  insertions  in 
a  bond  than  there  is  in  allowing  them  in  a  promissor}'  note  or  bill  of 


SECT,  v.]  CKIBBEN    V.    DEAL.  77 

exchange  ;  both  are  agreements  or  contracts,  and  in  neither  can  unau- 
thorized alterations  be  made  with  impunity.  Considering  that  the 
assumed  difference  rests  on  a  mere  technical  rule  of  the  common  law, 
we  do  not  think  that  the  rule  should  be  extended  beyond  its  necessarj- 
limits,  viz.,  that  a  sealed  instrument  cannot  be  executed  by  another,  so 
far  as  its  distinguishing  characteristic  as  a  sealed  instrument  is  in  ques- 
tion, unless  by  an  authority  under  seal."  Likewise  in  Bridgeport  Bank 
V.  New  York,  &c.  R.  R.  Co.,  30  Conn.  274,  Ellsworth,  J.,  said  :  "Nor 
can  any  reason  be  assigned  which  is  founded  in  good  sense,  and  is  not 
entirely  technical,  why  a  blank  in  an  instrument  under  seal  may  not  be 
filled  up  by  the  party  receiving  it  after  it  is  executed  as  well  as  any 
other  contract  in  writing,  where  the  parties  have  so  agreed  at  the  time. 
In  either  case  the  contract,  when  the  blank  has  been  filled,  expresses 
the  exact  agreement  of  the  parties,  and  nothing  but  an  extreme  techni- 
cal view,  derived  from  the  ancient  law  of  England,  can  justify  the 
making  of  any  distinctions  between  them." 

It  is  to  be  noted  that  both  of  these  adjudications  were  b}'  courts  of 
States  where  seals  were  not  abolished.  In  Burnside  v.  Wayman,  49 
Mo.  357,  where  the  name  of  a  grantee  in  a  trust  deed  was  left  in  blank, 
Wagner,  J.,  said  :  "  It  is  contended  that  no  recover}'  could  be  had  or 
relief  granted  on  the  first  count,  because  no  grantee  was  named  in  the 
deed  of  trust,  and  that  in  consequence  thereof  the  instrument  was  void, 
and  no  title  conveyed  ;  but  we  think  otherwise.  Whatever  ma}'  have 
been  determined  in  some  of  the  old  books,  the  better  doctrine  is  against 
such  a  position."  And  subsequently,  in  Field  v.  Stagg,  52  Mo.  534, 14 
Am.  Rep.  435,  this  doctrine  was  affirmed  in  all  its  breadth,  the  court 
saying:  "A  deed  regularly  executed  in  other  respects,  with  a  blank 
left  therein  for  the  name  of  the  grantee,  and  placed  in  that  condition  in 
the  hands  of  a  third  person  with  verbal  authority,  but  no  authority 
under  seal  from  the  person  who  executed  it,  to  fill  up  the  blank  in  his 
absence,  and  deliver  the  deed  to  the  person  whose  name  is  inserted  as 
grantee,  when  so  filled  out  and  delivered  is  a  valid  deed."  In  Duncan 
V.  Hodges,  4  McCord,  *239,  17  Am.  Dec.  734,  it  is  held  that  a  deed 
executed  with  blanks,  and  afterwards  filled  up  and  delivered  by  the 
agent  of  the  party,  is  good.  So  in  Van  Etta  v.  Evenson,  28  Wis.  33, 
9  Am.  Rep.  486,  it  was  held  that  where  a  note  and  mortgage  otherwise 
fully  executed,  but  with  a  blank  in  each  for  the  name  of  the  payee  and 
mortgagee,  were  delivered  to  an  agent  who  was  to  procure  from  whom- 
soever he  could  a  loan  of  money  thereon  for  the  maker,  this  shows  an 
intention  that  the  agent  should  fill  the  blanks,  and  when  so  filled  the 
instruments  were  valid  without  a  new  execution  and  delivery.  And  the 
same  doctrine  was  expressly  affirmed  in  Schintz  v.  McManamy,  33  Wis, 
301,  the  court,  by  Lyon,  J.,  saying:  "  It  was  doubtless  competent  foi 
the  grantors  to  authorize  Emil  by  parol  to  insert  the  name  of  the  gran- 
tee in  the  deed  after  they  had  signed  and  acknowledged  the  same.'' 
And  in  State  v.  Young,  23  Minn.  551,  it  was  held  that  authority  to  fill 
a  blank  in  a  sealed  instrument  may  be  given  by  parol,  and  that  such 


78  CKIBBEN  V.    DEAL.  [CHAP.  L 

authority  may  be  either  express  or  implied  from  circumstances,  and 
that  it  may  be  implied  from  circumstances  whenever  these,  fairly 
considered,  will  justify  the  inference.  So  in  Swartz  v.  Ballon,  47 
Iowa,  188,  29  Am.  Rep.  470,  where  the  owner  of  land  executed  a  deed 
in  blank  and  placed  it  in  tlie  hands  of  another  part}-  under  circumstances 
which  raised  an  implied  authority  in  the  latter  to  insert  the  name  of  the 
grantee,  it  was  held  that  the  insertion  of  the  grantee's  name,  either  by 
the  party  receiving  the  deed  or  by  some  one  authorized  by  him,  made 
the  instrument  perfect  as  a  conveyance. 

Without  referring  to  the  authorities  at  greater  length,  there  are 
numerous  other  cases  supporting  the  same  doctrine  :  Wiley  v.  Moor, 
17  Serg.  «fe  R.  438  ;  17  Am.  Dec.  696  ;  Smith  v.  Crooker,  5  Mass.  538  ; 
Gibbs  V.  Frost,  4  Ala.  720  ;  Wooley  v.  Constant,  4  .Johns.  54  ;  4  Am. 
Dec.  246  ;  Ex  parte  Decker,  6  Cow.  60 ;  Richmond  Mfg.  Co.  v. 
Davis,  7  Blackf  412;  Boardman  t-.  Gore,  28  N.  J.  Eq.  517  ;  18  Am. 
Dec.  73  ;  Camden  Bank  v.  Hall,  14  N.  J.  L.  583  ;  Ragsdale  v.  Robin- 
son, 48  Tex.  379.  The  contrary  rule  was  adopted  in  Upton  v.  Archer, 
41  Cal.  85;  10  Am.  Rep.  266;  Preston  v.  HuU,  22  Gratt.  600;  14 
Am.  Dec.  153;  Ingram  v.  Little,  14  Ga.  173;  58  Am.  Dec.  549. 

It  seems  to  us  that  the  weight  of  authority  and  better  opinion  is,  that 
parol  authority  is  sufficient  to  authorize  the  filling  of  a  blank  by  the 
insertion  of  the  name  of  the  grantee  in  a  deed  after  its  execution  but 
before  delivery,  as  in  the  case  at  bar.  There  is  no  pretence  of  any 
mistake  or  fraud,  or  that  the  blank  was  not  filled  as  authorized  and 
directed.  In  a  word,  that  it  was  filled  by  a  party  authorized  to  fill  it, 
and  was  done  after  its  execution  and  before  its  delivery  to  the  grantee 
named.  Nor  is  it  questioned  but  what  the  deed  faithfully  expresses 
the  intention  of  the  parties,  and  was  duly  executed  for  the  purposes 
specified  ;  and  in  such  case  it  seems  to  us  complete  effect  ought  to  be 
[given]  to  that  intention,  notwithstanding  the  technical  rule  of  the  com- 
mon law  in  respect  to  such  instruments.  As  Mr.  Justice  Swa3'ne  said  : 
"  If  a  person  competent  to  convey  real  estate  sign  and  acknowledge 
a  deed  in  blank,  and  deliver  the  same  to  an  agent,  with  an  express  or 
implied  authorit}-  to  fill  up  the  blank  and  perfect  the  conveyance,  its 
validity  could  not  be  well  controverted."     Drur^'  v.  Foster,  2  Wall.  24. 

It  results  that  the  decree  dismissing  the  bill  must  be  sustained.^ 

1  For  the  doctrines,  English  and  American,  as  to  the  power  of  a  partner  to  hind 
by  specialty  copartners  who  have  hy  parol  given  assent,  see  Steiglitz  ».  Egginton, 
Holt,  N.  P.  141  (1815);  Gram  v.  Seton,  1  Hall,  262  (1828);  Parsons  on  Partnership, 
§  122,  n.  (0- 

As  to  granting  to  an  officer  or  other  agent  of  a  corporation  power  to  execute  an 
instrument  under  the  corporate  seal,  see  Savings  Bank  v.  Davis,  8  Conn.  191  (1830) ; 
Burrill  v.  Nahant  Bank,  2  Met.  163(1840);  Hopkins  v.  Gallatin  Turnpike  Co.,  4 
Humph.  403  (1843) ;  Angell  &  Ames  on  Corporations,  §§  282-283,  292;  4  Thompson 
on  Corporations,  §§  5107-5108,  5177.  — Ed. 


SECT,  l.j  BKAULIEU    V.    FINGLAM.  79 


CHAPTER   II. 

THE   AGENT'S  POWER  TO   SUBJECT   HIS  PRINCIPAL  TO 
LIABILITIES. 


SECTION   I. 

The  Rise  of  the  Doctrine. 

BEAULIEU  V.  FINGLAM. 

Common  Pleas.     1401. 

[}'.  B.2  11.  IV.  18,  pi.  6.J 

One  brought  such  a  writ.  St  Willihelmus  Beaulieu,  etc.  pone  Hoge- 
mm  J^iiKjlam,  quare  cum  secundum  legem  et  consuetudlnem  regni  uos- 
tri  Anglioi  hactenus  obtenta,  quod  quilihet  de  eodem  regno  ignem 
suum  salvo  et  secure  custodiat,  et  custodlre  teneatur,  ne  per  ignem  suum 
dampnnm  aliquod  vicbds  suis  idlo  modo  erenlat:  prcjed'  Mogerus  if/uem 
suum  apud  Carlloti  tarn  negligenter  cnstodivit,  quod  j^ro  defectu  debitm 
custodice  igtiis  prmdicti,  bona  et  cattcdla  ipsius  Willihelmi  ad  valentiam 
quadraginta  libraruvi  in  domibiis  ibidem  existentia  ac  domus  prcedictoe 
ad  tunc  et  ibidem  per  ignem  ilium  cumbusta  extiterunt,  ad  dampmim 
ijjsius  W.  etc.     And  counted  accordingh'. 

Hornby.  Judgment  of  the  count,  for  he  has  counted  on  a  common 
custom  of  the  realm,  and  has  not  said  that  this  custom  has  been 
used,  etc. 

To  which  the  whole  court  said  pass  over,  for  common  law  of  this 
realm  is  common  custom  of  the  realm,  and  then  Thirnixg  [C.  J.]  said 
that  a  man  shall  answer  for  his  fire  which  through  misfortune  burns 
another's  goods. 

And  some  were  of  opinion  that  the  fire  cannot  be  called  his  fire,  for 
this  reason,  that  a  man  cannot  have  property  in  fire  ;  and  that  opinion 
is  not  agreed  to. 

Markham  [J.].  A  man  is  held  to  answer  for  the  act  of  his  servant 
or  of  his  hosteler  in  such  case,  for  if  my  servant  or  my  hosteler  puts  a 
candle  on  a  wall,  and  the  candle  falls  in  the  straw  and  burns  all  my 
house  and  the  house  of  my  neighbor  also,  in  this  case  I  shall  answer 
to  my  neighbor  for  the  damage  that  he  has. 

Which  was  conceded  by  the  court. 


80  BEAULIEU   V.   FINGLAM.  fCHAP.  II. 

Hornby.  Then  he  ought  to  have  had  a  writ  Qunre  domum  suam 
ardebat  vel  exarsit. 

Hull.  That  will  be  contrary  to  all  reason  to  put  blame  or  fault  on  a 
man  where  he  does  not  have  any  on  him,  for  negligence  of  his  servants 
cannot  be  called  his  feasance. 

Thirning  [C.  J.].  If  a  man  kills  or  siaj's  a  man  through  misfortune, 
he  shall  forfeit  his  goods,  and  it  is  proper  that  he  should  have  his  char- 
ter of  pardon  of  grace. 

To  which  the  court  agrees. 

Markham  [J.].  I  shall  answer  to  my  neighbor  for  another  who 
enters  m^-  house,  with  my  leave  or  my  knowledge,  or  is  a  guest  through 
me  or  through  my  servant,  if  he  does,  or  any  one  of  them  does,  such 
a  thing,  as  with  a  candle  or  other  thing,  by  which  feasance  the  house 
of  m}'  neighbor  is  burned  ;  but  if  a  man  from  outside  my  house,  against 
my  will,  puts  the  fire  in  the  straw  of  my  house,  or  elsewhere,  by  which 
my  house  is  burned,  and  also  the  houses  of  m}-  neighbors  are  burned, 
for  this  I  shall  not  be  held  to  answer  to  them,  etc.,  for  this  cannot  be 
said  to  be  through  wrong  on  my  part,  but  against  my  will. 

Hornby.  This  defendant  is  ruined  and  impoverished  forever  if  this 
action  be  maintained  against  him,  for  then  twenty  other  such  suits  will 
be  brought  against  him  of  like  matter. 

Thirning  [C.J.].  What  is  that  to  us?  It  is  better  that  he  should 
be  wholly  undone  than  that  the  law  should  be  changed  for  him. 

And  afterwards  the}'  were  at  issue  that  the  house  of  the  plaintitf 
was  not  burned  through  the  fire  of  the  defendant,  ready  ;  and  the  other 
side  said  the  contrary. 


Doctor  and  Student,  Dialogue  I.,  Chapter  IX.  (1518)  :  i  — 
The  law  of  England  is,  that  if  a  man  command  another  to  do  a  tres- 
pass, and  he  doth  it,  that  the  commander  is  a  trespasser.     And  I  am 
in  doubt,  whether  that  it  be  only  by  a  maxim  of  the  law,  or  that  it  be 
b}'  the  law  of  reason.  .  .  . 

Doctor  and  Student,  Dialogue  II.,  Chapter  XLTI.  (1518):  '  — 

.  .  .  And  now  I  intend  to  show  thee  some  particular  cases,  where 
the  master  after  the  laws  of  the  realm  shall  be  charged  by  the  act  of 
his  servant,  bailiff,  or  deput}-,  and  where  not.  .  .  . 

First,  for  trespass  of  battery,  or  wrongful  entry  into  lands  or  tene- 
ments, ne  yet  for  felony  or  murther,  the  master  shall  not  be  charged 
for  his  servant,  unless  he  did  it  by  his  commandment. 

Also,  if  a  servant  borrow  money  in  his  master's  name,  the  master 

1  From  the  eighteenth  edition,  p.  32.  —  Ed. 

2  From  the  eighteenth  edition,  pp.  236-2.38.  The  previous  parts  of  the  same  chap 
tftr  treat  of  a  public  officer's  responsibility  for  the  acts  and  defaults  of  his  deputy. 
—  Ed. 


SECT.  I.]  DOCTOR   AND    STUDENT.  81 

shall  not  be  charged  with  it  unless  it  come  to  his  use,  and  that  by  his 
assent.  And  tlie  same  law  is,  if  a  servant  make  a  contract  in  his 
master's  name,  the  contract  shall  not  bind  his  master,  unless  it  were  by 
his  master's  commandment,  or  that  it  came  to  the  master's  use  by  his 
assent.  But  if  a  man  sends  his  servant  to  a  fair  or  market  to  bu^-  for 
him  certain  things,  though  he  command  him  not  to  bu}'  them  of  no 
man  in  certain,  and  the  servant  doth  according,  the  master  shall  be 
charged :  but  if  the  servant  in  that  case  buy  them  in  his  own  name, 
not  speaking  of  his  master,  the  master  shall  not  be  charged,  unless  the 
things  bought  come  to  his  use. 

Also,  if  a  man  send  his  servant  to  the  market  with  a  thing  which  he 
knoweth  to  be  defective,  to  be  sold  to  a  certain  man,  and  he  selkth  it 
to  him,  there  an  action  lieth  against  the  master :  but  if  the  master  bid- 
deth  him  not  to  sell  it  to  an}'  person  in  certain,  but  generally  to  whom 
he  can,  and  he  selleth  it  according,  there  lieth  no  action  of  disceit 
against   the  master. 

Also,  if  the  servant  keep  the  master's  fire  negligently,  whereby  his 
master's  house  is  burnt,  and  his  neighbor's  also,  there  an  action  lieth 
against  the  master.  But  if  the  servant  bear  fire  negligentl}'  in  the 
street,  and  thereby  the  house  of  another  is  burned,  there  lieth  no  ac- 
tion against  the  master.  .  .   . 

Also,  if  a  man  make  another  his  general  receiver,  and  that  receiver 
receiveth  money  of  a  creditor  of  his  master,  and  maketh  him  acquit- 
tance, and  after  payeth  not  his  master ;  yet  that  payment  dischargeth 
the  creditor :  but  if  the  creditor  hath  taken  an  acquittance  of  him 
without  paying  him  his  money,  that  acquittance  onh*  were  no  bar  to 
the  master,  unless  he  made  him  receiver  by  writing,  and  gave  him  au- 
thority to  make  acquittances,  and  then  the  authorit}'  must  be  shewed. 
And  if  the  creditor  in  such  case,  b}'  agreement  between  the  receiver 
and  him,  delivered  to  the  receiver  an  horse,  or  another  thing  in  recom- 
pence  of  the  debt,  that  deliver}-  dischargeth  not  the  creditor,  unless  it 
be  delivered  over  unto  the  master,  and  he  agree  to  it.  For  the  receiver 
bath  no  such  power  to  make  no  such  commutation,  but  his  master  give 
bim  special  commandment  thereto. 

Also,  if  a  servant  shew  a  creditor  of  his  master,  that  his  master  sent 
him  for  his  money,  and  he  payeth  it  unto  him  ;  that  payment  discharg- 
eth him  not,  if  the  master  did  not  send  him  for  it  indeed,  except  that 
it  came  after  unto  the  use  of  the  master  by  his  assent.^  .  .  . 

1  The  early  reports,  statutes,  and  text-books  afford  ample  material  for  testing  the 
accuracy  of  Doctor  and  Student's  presentation  of  the  early  law  as  to  a  principal's  re- 
eponsibility  for  his  agent's  acts.  Authorities  useful  for  this  purpose  are  :  Mortimer's 
Case,  Bigelow's  Placita  Anglo-Normannica,  59  (temp.  W.  I. );  Abbot  of  Abingdon  v. 
Anskill,  id.  62  (1088-1089);  Jurnet  v.  Church  of  St.  Edmund,  id.  223  (1176);  Bos- 
tard  V.  Duket,  Bractou's  Note  Book,  pi.  873  (1232);  Statute  of  Westminster  II.,  13 
Ed.  I.,  Stat.  1,  c.  11,  §  10  (1285) ;  Anonymous,  Y.  B.  35  Ed.  I.  (Rolls  ed.)  567  (1307) 
Statute  of  the  Staple,  27  Ed.  III.,  Stat.  2,  c.  19,  §  1  (1353)  ;  W.'s  Ca.se,  Y.  B.  27  Ass. 
pi.  5,  fo.  133  (1354) ;  J.  II.'s  Case,  Fitzherbert's  Abridgment,  Dette,  pi.  3  (1378) ;  s.  c 
Bellewe's  Cas.  temp.  Rich.  II.  136;  Anonvmous,  Y.  B.  9  H   VI.  53  b,  pi.  37  (1430J; 

6 


82  BOSON  V.    SANDFORD.  [CHAP,  IL 


MICHAEL   V.    ALESTREE. 
King's  Bench.     1676. 

[2  Levinz,  172.]  w 

Case,  for  that  the  defendants  in  Lincoln's-Inn-Fields,  a  place  where 
people  are  always  going  to  and  fro  about  their  business,  brought  a 
coach  with  two  ungovernable  horses,  and  eux  improvide  incuNte  et 
absque  debita  consideratio7ie  ineptiti(di?iis  loci  there  drove  them  to  make 
them  tractable  and  fit  them  for  a  coach  ;  and  the  horses,  because  of 
their  ferocity  being  not  to  be  managed,  ran  upon  the  plaintitf,  and 
hurt  and  grievously  wounded  him.  The  master  was  absent,  yet  the 
action  was  brought  against  him  as  well  as  his  servant,  and  both  found 
guilt}'.  And  now  't  was  moved  in  arrest  of  judgment,  that  no  sciens  is 
here  laid  of  the  horses  being  unrul}',  nor  any  negligence  alleged,  but 
e  contra,  that  the  horses  were  ungovernable :  yet  judgment  was  given 
for  the  plaintiff,  for  't  is  alleged  that  it  was  improvide  et  absque 
debita  consider ati one  ineptitiidinis  loci  ;  and  it  shall  be  intended  the 
master  sent  the  servant  to  train  the  horses  there. ^ 


BOSON   V.   SANDFORD  et  al. 
King's  Bench.     1690. 

[2  Salk.  440.-2] 

Case  against  A.  and  B.,  part-owners  of  a  ship,  for  that  he  put  goods 
on  board,  and  the  defendants  undertook  to  carry  them  safely  for  hire, 

Pigot's  argument  in  the  Duchess  of  Suffolk's  Case,  Y.  B.  8  Ed.  IV.  11-11  b  (1468)  ; 
Anonymous,  Y.  B.  11  Ed.  IV.  6,  pi.  10  (1471) ;  Anonymous,  Y.  B.  13  H.  VII.  15  b,  pi. 
10  (1497-8);  Fitzherbert's  Natura  Brevium,  120  G  (1534);  Seaman  and  Browning's 
Case,  4  Leon.  123  (1589) ;  Waltham  v.  Mulger,  Moore,  776  (1605) ;  Southern  v.  How, 
Popham,  143  (1618)  ;*  s.  c.  Cro.  Jac.  468,  2  Rolle's  Reports,  5,  26;  Seignior  v.  Wolmer, 
Godbolt,  360  (1623);  Kingston  v.  Booth,  Skinner,  228  (1684-5).  — Ed. 

1  Per  curiam,  s.  C.  sub  nom.  Michell  v.  Allestry,  3  Keble,  650  :  "It's  at  peril  of  the 
owner  to  take  strength  enough  to  order  them,  and  the  master  is  as  liable  as  the 
servant  if  he  gave  order  for  it,  and  the  action  is  generally  for  bringing  them  thither, 
which  is  intended  personal." 

Per  curiam,  s.  c.  sub  nom.  Michil  v.  Alestree,  1  Ventris,  295:  "It  was  the  de- 
fendant's fault,  to  bring  a  wild  horse  into  such  a  place  where  mischief  might  prob- 
ably be  done,  by  reason  of  the  concourse  of  people.  Lately,  in  this  court  an  action 
was  broiight  against  a  butcher,  who  had  made  an  ox  run  from  his  stall  and  gored  the 
plaintiff ;  and  this  was  alleged  in  the  declaration  to  be  in  default  of  penning  of  him." 
And  per  Wylde,  J. :  "  If  a  man  hath  an  unruly  horse  in  his  stable,  and  leaves  open 
the  stable  door,  whereby  the  horse  goes  forth  and  does  mischief,  an  action  lies  against 
the  master."  —  Ed. 

2  s.  c.  Skinner,  278;  Comberbach,  116;  1  Shower,  29;  3  Mod.  321;  Carthew,  58; 
3  Levinz,  258. —Ed. 


SECT.  I.]  WAYLAND'S   CASE.  83 

but  3et  were  so  negligent  that  the  goods  were  spoiled.  Upon  not 
guilty  pleaded,  in  evidence  it  apj^eared  that  C.  and  D,  were  also  part- 
owners,  and  that  the  ship  was  under  the  care  of  a  master,  to  whom  the 
goods  were  delivered  ;  and  this  being  found  specially,  it  was  argued 
pro  quer.,  that  the  action  is  grounded  on  the  wrong,  and  may  be 
against  all  or  any  of  the  proprietors.  There  was  also  another  doubt 
started,  and  that  was,  whether  the  owners  were  liable,  when  in  tiuth 
they  did  not  undertake,  but  in  fact  the  master  sujyer  se  suscepitf  P]tre, 
Justice,  held  there  was  no  difference  between  a  land-carrier  and  a 
water-carrier,  and  that  the  master  of  a  ship  was  no  more  than  a 
servant  to  the  owners  in  the  eye  of  the  law  ;  and  that  the  power  he  has 
of  hypothecation,  etc.,  is  by  the  civil  law.  Ft  /)er  Holt,  C.  J.  The 
owners  are  liable  in  respect  of  the  freight,  and  as  employing  the 
master;  for  whoever  employs  another  is  answerable  for  him,  and 
undertakes  for  his  care  to  all  that  make  use  of  him.  2dly,  the  court 
held  that  all  owners  were  liable,  for  they  are  charged,  in  point  of 
contract,  as  employers,  and  are  all  equall}-  entitled  to  the  freiglit. 
Either  master  or  owners  may  bring  an  action  for  the  freight ;  but  if  the 
owners  bring  the  action,  they  must  all  join  ;  erffo  the}'  must  all  be  joined  ; 
as  the  freight  belongs  to  all,  so  all  are  equally  undertaking ;  and  a 
breach  of  trust  in  one  is  a  breach  of  trust  in  all ;  as  where  two  make 
one  officer,  the  act  of  one  is  the  act  of  the  other.  Sdl}',  the  court  held 
this  was  not  an  action  ex  delicto,  but  ex  quasi  conti'actu,  and  it  was  not 
the  contract  of  one  but  of  all ;  that  there  was  no  other  tort  but  a  breach 
of  trust.  Therefore  the  court  gave  judgment  for  the  defendant,  because 
all  the  owners  were  not  joined.^ 


SIR  ROBERT   WAYLAND'S   CASE. 
Nisi  Prius.     1690. 

[3  Salk.  234.-] 

He  used  to  give  bis  servant  money  eveiy  Saturda}'  to  defray  the 
charges  of  the  foregoing  week,  the  servant  kept  the  monej',  yet  per 
Holt,  C.  J.,  the  master  is  chargeable,  for  the  master  at  his  peril 
ought  to  take  cai-e  what  servants  he  employs  ;  and  'tis  more  reasonable, 
that  he  should  suffer  for  the  cheats  of  his  servant  than  strangers  and 
tradesmen  ;  so  if  a  smith's  man  pricks  my  horse,  the  master  is  liable. 

1  Compare  Boucher  v.  Lawson,  Lee's  Cas.  temp.  Hardwicke,  85,  194  (1735-6).  —  En 

2  8.0.  1  Shower,  95.  — Ed. 


84  TURBERVILLE  V.    STAMPE.  [CHAP.  II. 


BOULTON   V.   ARLSDEN. 
Nisi  Pkius,  Holt,  C.  J.     1697. 

[3  Sulk.  234.] 

In  this  case  it  was  held,  that  where  a  servant  usually  buys  for  his 
master  upon  tick,  and  takes  up  things  in  his  master's  name,  but  for  his 
own  use,  that  the  master  is  liable,  but  't  is  not  so  where  the  master 
usually  gave  him  ready  money. 

That  where  the  master  gives  the  servant  money  to  buy  goods  for 
him,  and  he  converts  the  mone}'  to  his  own  use,  and  buys  the  goods 
upon  tick,  yet  the  master  is  liable,  so  as  the  goods  come  to  his  use, 
otherwise  not. 

That  a  note  under  the  hand  of  an  apprentice  shall  bind  his  master, 
where  he  is  allowed  to  deliver  out  notes,  tho'  the  money  is  never 
applied  to  the  master's  use. 

But  where  he  is  not  allowed  or  accustomed  to  deliver  out  notes, 
there  his  note  shall  not  bind  the  master,  unless  the  money  is  applied  to 
the  master's  use. 


TURBERVILLE  v.   STAMPE. 
King's  Bench.     1697. 

[1  Ld.  Raym.  264.1] 

Case  grounded  upon  the  common  custom  of  the  realm  for  negligently 
keeping  his  fire.  The  plaintiff  declares  that  he  was  possessed  of  a 
close  of  heath,  and  that  the  defendant  had  another  close  of  heath 
adjoining ;  that  the  defendant  tarn  improvide  et  negligenter  custodivit 
ignem  suum  that  it  consumed  the  heath  of  the  plaintiff.  Not  guilty 
pleaded.  Verdict  for  the  plaintiff.  And  Gpxdd,  king's  serjeant,  moved 
in  arrest  of  judgment  that  this  action  ought  not  to  be  grounded  upon 
the  common  custom  of  the  realm  ;  for  this  fire  in  the  field  cannot  be 
called  ignis  sims,  for  a  man  has  no  power  over  a  fire  in  the  field,  as  he 
has  over  a  fire  in  his  house.  And  therefore  this  resembles  the  case  of 
an  innkeeper,  who  must  answer  for  an}'  ill  that  happens  to  the  goods 
of  his  guest,  so  long  as  they  are  in  his  house  ;  but  he  is  not  answerable, 
if  a  horse  be  stolen  out  of  his  close.  And  in  fact  in  this  case  the 
defendant's  servant  kindled  this  fire  by  way  of  husbandry,  and  a  wind 
and  tempest  arose,  and  drove  it  into  his  neighbour's  field  ;  so  that  it 
was  not  any  neglect  in  the  defendant,  but  the  act  of  God.     Sed  non 

1  s.  c.  Comberbach,  459 ;  Skinner,  681 ;  Carthew,  425  ;  Comyns,  32  ;  1  Salk.  13  ; 
12  Mod.  151  ;  Holt,  9.     The  pleadings  are  given  in  3  Ld.  Raym.  250.  —  Ed. 


SECT.  I.]  TURBEKVILLE   V.    STAMPE.  85 

allocatur.  For,  per  curiam,  as  to  the  matter  of  the  tempest,  that  ap- 
peared only  upon  the  evidence,  and  not  upon  the  record,  and  therefore 
the  King's  Bench  cannot  take  notice  of  it,  but  it  was  good  evidence  to 
excuse  the  defendant  at  the  trial.  Then  as  to  the  other  matter,  per 
Holt,  Chief  Justice,  Kokeby  and  EyuE,  Justices,  a  man  ought  to  keep 
the  fire  in  his  field  as  well  from  the  doing  of  damage  to  his  neighbour, 
as  if  it  were  in  his  house,  and  it  may  be  as  well  called  suus,  the  one  as 
the  other ;  for  the  property  of  the  materials  makes  the  property'  of  the 
fire.  And  therefore  this  action  is  well  grounded  upon  the  common 
custom  of  the  realm.  But  Tukton,  Justice,  said  that  these  actions 
grounded  upon  the  common  custom  had  been  extended  ver}*  far.  And 
therefore  (by  him)  the  plaintiff  might  have  case  for  the  special  damage, 
but  not  grounded  upon  the  general  custom  of  the  realm.  But  by  the 
other  justices  judgment  was  given  for  the  plaintiff.  Note  Mr.  Northey 
for  the  plaintiff  cited  40  Assis.  pi.  9  ;  Htz.  issue  88,  double  pica,  31  ; 
28  Hen.  6,  37;  21  Hen.  6,  11,  b.  Rast.  Entr.  8,  and  Old  Entr.  219, 
where  the  declaration  is  general  for  negligently  keeping  his  fire  in  such 
a  parish,  without  specifying  a  particular  house  or  ground.  But  Holt, 
Chief  Justice,  answered  that  that -was  an  antiquated  entry.  And  (b\- 
him)  if  a  stranger  set  fire  to  my  house,  and  it  burns  my  neighbour's 
house,  no  action  will  lie  against  me ;  which  all  the  other  justices 
agreed.  But  if  my  servant  throws  dirt  into  the  highway,  I  am  indict- 
able. So  in  this  case,  if  the  defendant's  servant  kindled  the  fire  in  the 
way  of  husbandry  and  proper  for  his  employment,  though  he  had  no 
express  command  of  his  master,  yet  his  master  shall  be  liable  to  an 
action  for  damage  done  to  another  by  the  fire  ;  for  it  shall  be  intended 
that  the  servant  had  authority  from  his  master,  it  being  for  his  master's 
benefit.^ 

^  Skinner,  681,  s.  c. :  "  It  was  moved  in  arrest  of  judgment,  that  it  does  not  appear 
in  this  case  to  be  done  by  the  command  of  the  master;  and  then  it  being  out  of  his 
house,  he  is  not  responsible,  2  H.  4,  24,  for  if  tlie  servant  does  it  without  the  command 
of  the  master,  it  is  not  the  negligence  of  the  master ;  but  it  was  answered,  that  it 
being  after  a  verdict,  be  it  by  negligence  or  by  misfortune,  it  is  all  one ;  for  now  they 
are  upon  the  record,  and  it  may  be  his  fire  in  a  field,  as  well  as  in  a  house ;  and  it  was 
matter  of  evidence  if  it  be  his  fire  or  not." 

Comberbach,  459,  s.  c. :  "  Holt,  C.  J.  .  .  .  And  tho'  I  am  not  bound  by  the  act 
of  a  stranger  in  any  case,  yet  if  my  servant  doth  any  thing  prejudicial  to  another,  it 
shall  bind  me,  where  it  may  be  presumed  that  he  acts  by  my  authority,  being  about 
my  business."  —  Ed. 


86  JONES   V.   HART.  [CHAP.  II. 

MIDDLETON   v.   FOWLER. 
Nisi  Prius.     1698. 

[1  Sulk.  282. J 

An  action  upon  the  case  upon  the  custom  of  the  realm  was  brought 
against  the  defendants  being  masters  of  a  stage-coach  ;  and  the  plain- 
tiff set  forth  that  he  took  a  place  in  the  coach  for  such  a  town,  and 
that  in  the  journey  the  defendants  by  their  negligence  lost  a  trunk  of 
the  plaintiff's.  Upon  not  guilt}'  pleaded,  upon  the  evidence  it  appeared 
that  this  trunk  was  delivered  to  the  person  that  drove  the  coach,  and 
he  promised  to  take  care  of  it,  and  that  the  trunk  was  lost  out  of  the 
coachman's  possession  ;  and  if  the  master  was  chargeable  with  this 
action,  was  the  question.  Holt,  C.  J.,  was  of  opinion  that  this  action 
did  not  lie  against  the  master,  and  that  a  stage-coachman  was  not 
within  the  custom  as  a  carrier  is,  unless  such  as  take  a  distinct  price 
for  carriage  of  goods  as  well  as  persons,  as  wagons  with  coaches  ;  and 
though  mone}-  be  given  to  the  driver,  j'et  that  is  a  gratuit}',  and  cannot 
bring  the  master  within  the  custom  ;  for  no  master  is  chargeable  with 
the  acts  of  his  servant  but  when  he  acts  in  execution  of  the  authority 
given  b}'  his  master,  and  then  the  act  of  the  servant  is  the  act  of  the 
master ;  and  the  plaintiff  was  nonsuited. 


JONES  V.   HART. 
Nisi  Prius.     1698. 

[2  SalJc.     441.] 

A  pawn-broker's  servant  took  a  pawn ;  the  pawner  came  and  ten- 
dered the  mone}'  to  the  servant ;  he  said  he  had  lost  the  goods.  Upon 
this  the  pawner  brought  trover  against  the  master,  and  it  was  held 
well,  per  Holt,  C.  J. 

The  servants  of  A.  with  his  cart  run  against  another  cart,  wherein 
was  a  pipe  of  sack,  and  overturned  the  cart,  and  spoiled  the  sack  ;  an 
action  lies  against  A.  So  where  a  carter's  sen^ant  run  his  cart  over  a 
bo}',  it  was  held  the  boy  should  have  his  action  against  the  master  for 
the  damage  he  sustained  by  this  negligence.  So  in  Lane  and  Cotton,^ 
a  letter  with  bills  in  it  was  delivered  at  the  post-office  to  a  servant ;  it 
was  held,  case  lay  against  the  post-master  and  not  against  the  servant, 
unless  he  stole  them,  for  then  he  was  a  wrong-doer,  as  where  a  gaoler 
suffers  an  escape  wilfully;  otherwise,  if  negligently.     Per  Holt,  C.  J.' 

>  The  contrary  was  ruled  to  what  is  here  stated.     Vide  the  case,  1  Salk.  17.  —  Rep 
2  Holt,  646,  s.  c. :  "  Holt,  C.  J.  .  .  .  And  so  it  is  if  a  smith's  man  pricks  a  horse 


SECT,  l]  ward    V.    EVANS.  87 


ANONYMOUS. 

Nisi  Pejus.     1701. 

[12  Mod.  514.] 

Per  Holt,  C.  J.  Ever}-  factor  of  common  right  is  to  sell  for  ready 
mone}'.  But  if  he  be  a  factor  in  a  sort  of  dealing  or  trade  where  the 
usage  is  for  factors  to  sell  on  trust,  there,  if  he  sell  to  a  person  of  good 
credit  at  that  time,  and  he  afterwards  becomes  insolvent,  the  factor  is 
discharged  ;  but  otherwise  if  it  be  to  a  man  notoriously  discredited  at 
the  time  of  tlie  sale.  But  if  there  be  no  such  usage,  and  he,  upon  the 
general  authority  to  sell,  sells  upon  trust,  let  the  vendee  be  ever  so 
able,  the  factor  is  only  chargeable  ;  for  in  that  case,  the  factor  having 
gone  bej'ond  his  authority,  there  is  no  contract  created  between  the 
vendee  and  the  factor's  principal ;  and  such  sale  is  a  conversion  in 
the  factor ;  and  if  it  be  not  in  market-overt,  no  propertj-  is  thereby 
altered,  but  trover  will  also  lie  against  vendee  :  so  likewise  if  it  be  in  a 
market-overt,  and  the  vendee  knows  the  factor  to  sell  as  factor. 


WARD   V.  EVANS. 
Queen's  Bench.     1702-3. 

[2  SalL  442.1] 

"Ward  sent  his  servant  to  receive  a  note  of  £50  of  B.,  who  went  with 
him  to  Sir  Stephen  Evans's  shop,  who  indorsed  off  £50  from  a  note  B. 
had  upon  him,  and  gave  Ward's  servant  a  note  of  £50  upon  one  Wallis, 
a  goldsmith,  to  whom  the  note  was  carried  the  next  da}-  by  Ward's 
servant ;  Wallis  refused  to  pay,  and  that  da}-  broke  ;  upon  this  the 
note  was  sent  back  to  Sir  Stephen  P^vans,  who  refused  payment,  where- 
upon the  action  was  brought.  Et  per  Cur.  it  was  held,  1st,  that  this 
was  money  received  by  Sir  Stephen  Evans  ;  2dly,  that  the  act  of  a  ser- 
vant shall  not  bind  the  master  unless  lie  acts  by  authority  of  his  master  ; 
and  therefore  if  a  master  sends  his  servant  to  receive  money,  and  the 
servant,  instead  of  money,  takes  a  bill,  and  the  master,  as  soon  as 
told  thereof,  disagrees,  he  is  not  bound  by  this  payment;  but  acqui-, 
escence,  or  any  small  matter,  will  be  proof  of  the  master's  consent, 
tnd  that  will  make  the  act  of  the  servant  the  act  of  the  master. 

3dly,  They  held  this  was  no  payment;  for  a  goldsmith's  note  is 
/)nly  paper,  and  received  conditionally,  if  paid  ;  and  not  otherwise, 
♦vithout  an  express  agreement  to  be  taken  as  cash. 

to  shoeing,  the  master  is  liable.  For  whoever  employs  another  is  answerable  for  him, 
4n(l  undertakes  for  his  care  to  all  that  make  use  of  him.  The  act  of  a  servant  is  the 
tct  of  his  master,  where  he  acts  by  authority  of  the  master."  —  Ed. 

1  R.  c.  3  Salk.  118 ;  6  Mod.  36;  12  id.  521  ;  2  Ld.  Raym.  928  ;  Comyns,  138.  — Ed. 


88  THOROLD   V.    SMITH.  ^       [CHAP.  II. 

4tbly,  they  held  that  the  party  receiving  such  note  should  have  a 
reasonable  time  to  receive  the  money,  as  in  this  case  the  next  day, 
and  is  not  obliged,  as  soon  as  he  receives  it,  to  go  straight  for  his 
money. 


THOROLD   V.   SMITH. 

Queen's   Bench.     1706. 

[11  Mod.  71,  87.] 

The  defendant  being  indebted  to  Sir  Charles  Thorold  in  a  hundred 
pounds,  Sir  Charles  sent  his  servant  to  receive  the  money.  The  ser- 
vant took  the  goldsmith's  note  upon  one  Johnson,  and  thereupon  gave 
a  receipt  to  Smith.     Johnson  broke  within  a  week  after. 

The  question  was,  whether  this  was  a  good  payment  to  Sir  Charles ; 
or,  whether  the  servant  had  pursued  his  authority  in  taking  a  note  in 
lieu  of  money,  and  had  a  power  to  give  a  receipt  to  discharge  the  debt 
without  receiving  the  money. 

Holt,  C.  J.  A  bill  is  no  payment ;  ^  but  if  a  man  will  give  a  re- 
ceipt, he  by  that  accepts  the  bill  as  money  and  payment ;  and  therefore 
upon  the  receipt  this  case  turns. 

The  principal  objection  from  the  Bar  was,  that  the  defendant  had 
not  authority  to  receive  anything  but  money,  and  consequently  could 
not  discharge  the  debt  upon  receiving  the  bill. 

Powell,  J.,  said.  Sir  Charles  Thorold  should  have  sent  his  man 
back  again  the  same  day  to  have  dissented,  else  it  is  a  presumption 
that  his  master  was  acquainted  with,  and  acquiesced  in,  what  he  had 
done  ;  and  this  might  have  altered  the  case. 

To  which  the  court  agreed ;  and  said.  Sir  Stephen  Evans's  case  dif- 
fered from  this  case,  for  Sir  Stephen  Evans  became  a  receiver  to  the  use 
of  Ward.  If  a  man  give  a  note  to  another  upon  a  banker,  and  no  re- 
ceipt, it  is  usual  to  have  three  days  as  a  convenient  time  to  receive 
it ;  and  if  the  banker  break  in  that  time,  it  will  be  no  payment. 

Adjournatur. 

Darnell,  Serjeant.  A  receipt  shall  not  be  a  good  discharge,  where 
a  servant  had  not  a  special  authorit}'  to  give  a  receipt.^  Suppose  a 
servant  give  a  receipt,  and  do  not  receive  the  money,  shall  this  bind 
the  master?     So  if  he  take  any  collateral  security',  as  a  bond. 

1  By  3  &  4  Anne,  c.  9,  §  7,  "  If  any  person  accept  a  bill  of  exchange  for  and  in 
satisfaction  of  any  former  debt  or  sum  of  money  formerly  due  to  him,  it  shall  be  ac- 
counted and  esteemed  a  full  and  complete  payment  of  such  debt,  if  such  person  accept- 
ing of  any  such  bill  for  his  debt  do  not  take  his  due  course  to  obtain  payment  of  it, 
by  endeavoring  to  get  the  same  accepted  and  paid,  and  make  his  protest,  according  to 
the  directions  of  the  act,  either  for  non-acceptance  or  non-payment."  See  Murdal  v, 
Clarke,  1  Salk.  124;  Kyd  on  Bills  of  Exchange,  111.  — Bep. 

"  Year-Book,  10  Hen.  VII.  pi.  9;  4  Hen.  VI.  pi.  1  ;  40  Assize,  38. —  Rep. 


SECT.  I.]  THOROLD    V.    SMITH.  89 

Jfr.  Eyres.  The  question  is,  if  a  servant  is  sent  by  his  roaster  for 
mone}',  and  receive  anything  else  in  lieu  of  monej-,  whether  this  is 
a  pursuance  of  his  authority.  It  did  not  appear  in  this  case  that  Sir 
Cliarles  Tiiorold  had  any  notice  of  the  receipt  of  the  bills,  nor  of 
Jolnison's  breaking  ;  but  the  servant  sent  the  note  back  upon  hearing 
of  Johnson's  breaking,  A  servant  sent  by  his  roaster  to  receive  rooney 
cannot  release  or  discharge  his  roaster's  debt  without  receiving  the 
mone}' ;  for  a  receiver  has  no  power  to  make  any  commutation  without 
a  special  authority.^ 

AV>  James  Mountague,  ccmtra.  The  authorities  cited  from  the  old 
books  will  not  weigh  much  in  this  case  ;  for  the  way  of  trade  and 
commerce  is  of  a  quite  different  nature  now. 

Holt,  C.  J.  A  bill  of  exchange  or  goldsmith's  note  is  not  payment, 
unless  the  part}'  omits  receiving  of  it  in  a  reasonable  time,  as  three 
days,  when  he  might  have  received  it ;  but  if  he  give  a  receipt  and 
accept  the  note  as  payment,  this  shall  bind  him.  In  this  case  Sii 
Charles  himself  gave  no  receipt,  but  the  servant.  Where  a  man  hag 
authority  to  receive  money,  he  cannot  receive  anything  else.  It  is 
common  practice,  if  a  man  receive  a  goldsmith's  note,  and  give  a  re- 
ceipt, it  is  purchasing  the  bill.  In  this  case  it  must  be  understood, 
according  to  the  course  of  the  world  and  trade,  that  this  servant  had 
a  general  authority'  to  do  what  his  master  would  have  done  ;  this  case 
differs  much  from  the  case  of  a  servant  or  attorney  to  one  particular 
purpose,  but  this  is  in  nature  of  a  factor,  etc. 

Powell,  J.  No  modern  practice  will  alter  the  old  law.  The  part}' 
himself  ma}'  give  a  receipt,  but  a  general  receiver  cannot  receive  any- 
thing else.  His  own  acquittance  would  stop  hiro,  but  his  servant's 
receipt  will  not.  In  this  case  the  servant  was  sent  to  receive  money : 
this  servant,  he  supposed,  had  many  times  received  bills  for  his  mas- 
ter, and  this  is  an  authority  to  this  purpose  ;  but  this  indeed  was  proper 
matter  of  evidence,  being  the  constant  practice  of  the  world  ;  and  had 
this  not  been.  Sir  Charles  would  have  asked  his  servant  what  he  had 
done  ;  and  when  he  had  told  liim  he  had  received  such  a  note,  it  is  a 
strong  presumption  his  master  approved  of  it,  or  else,  it  is  to  be  pre- 
sumed, he  would  have  sent  it  back  again. 

Holt,  C.  J.,  thought  this  was  more  matter  of  evidence  than  law  ; 
and  any  jury  at  Guildhall  would  find  payment  by  a  bill  to  be  a  good 
payment,  it  being  the  common  practice  of  the  city.  And  he  proposed 
a  new  trial,  whether  the  servant  had  power  to  receive  a  bill,  and  give 
a  receipt ;  which  was  agreed  to. 

Holt,  C.  J.  In  this  case,  the  receipt  of  a  servant  that  has  power 
is  the  receipt  of  the  master. 

1  Doctor  and  Student,  138  b.  —  Rep. 


90  MCKSON   V.   BROHAN.  [CHAP.  IL 

HERN  V.  NICHOLS. 

Nisi   Prius.     1708. 

[1  Salk.  289.] 

In  an  action  on  the  case  for  a  deceit,  the  plaintiff  set  forth  that  he 

bought  several  parcels  of  silk  for silk,  whereas  it  was  another 

kind  of  silk ;  and  that  the  defendant,  well  knowing  this  deceit,  sold  it 

him  for silk.     On  trial,  upon  not  guilty,  it  appeared  that  there 

was  no  actual  deceit  in  the  defendant  who  was  the  merchant,  but  that 
it  was  in  his  factor  beyond  sea ;  and  the  doubt  was,  if  this  deceit  could 
charge  the  merchant?  And  Holt,  C.  J.,  was  of  opinion,  that  the  mer- 
chant was  answerable  for  the  deceit  of  his  factor,  though  not  crimi- 
naliter,  yet  civiliter ;  for  seeing  somebody  must  be  a  loser  bj'  this 
deceit,  it  is  more  reason  that  he  that  employs  and  puts  a  trust  and 
confidence  in  the  deceiver  should  be  a  loser,  than  a  stranger.  And 
upon  this  opinion  the  plaintiff  had  a  verdict. 


NICKSON   V.   BROHAN. 
Queen's  Bench.     1712. 
[10  Mod.  109.] 

A  MASTER  sent  his  servant,  who  was  used  to  transact  affairs  of  that 
nature  for  him,  on  Saturday  morning,  with  a  note  drawn  upon  Sir 
Stephen  Evans,  with  orders  to  get  from  Sir  Stephen  either  bank  bills 
or  money,  and  turn  them  into  exchequer  notes  ;  but  the  servant  having 
other  business  of  his  master's  upon  his  hands,  to  save  himself  the  time 
and  trouble  of  going  to  Sir  Stephen,  went  to  B.  and  prevailed  with  him 
to  give  him  a  bank  bill  for  the  note  upon  Sir  Stephen  ;  and  then,  in 
pursuance  of  his  master's  orders,  invested  it  in  exchequer  notes,  which 
he  brought  to  his  master,  not  letting  him  know  but  that  he  had  gone 
to  Sir  Stephen.     Sir  Stephen  Evans  failed  upon  the  Monday  following. 

The  question  was,  upon  whom  this  loss  should  light,  B.  or  the 
master. 

Parker,  Chief  Justice,  who  tried  the  cause,  was  first  of  opinion  that 
it  should  fall  upon  B. ,  because  the  servant  acted  directly  contrary  to 
his  master's  orders,  and  B.,  by  furnishing  the  servant  with  a  bank  bill, 
did  the  master  no  service  at  all ;  for  if  he  had  not  done  it,  the  servant 
must,  in  obedience  to  his  master's  orders,  have  gone  and  received  him- 
self the  money  from  Sir  Stephen  ;  and  cited  the  case  of  Ward  v.  Evans, 
where  it  was  resolved  that  if  a  servant,  sent  to  receive  money,  takes 


SECT.  I.]  NICKSON   V.   BROHAN.  91 

a  bill  in  lieu  of  it,  the  master  is  not  bound  b}'  the  act  of  the  servant, 
unless  the  bill  is  answered. 

J5ut  one  of  the  jury  informing  him  that  he  took  the  practice  to  be 
otherwise  (for  that  whether  a  servant,  used  to  act  upon  the  credit  of  his 
master,  went  against  the  orders  of  the  master,  was  a  fact  that  could 
not  be  known  to  a  third  person),  he  quitted  his  opinion  ;  but  directed 
the  counsel  to  move  the  Court  of  King's  Bench,  which  was  accordingly 
done. 

The  substance  of  what  was  said  upon  the  motion  in  favor  of  the 
master  was,  that  the  servant  going  contrary  to  his  orders,  and  there 
being  no  subsequent  consent  of  the  muster,  who  knew  nothing  of  the 
matter,  the  act  of  the  servant  should  not  bind  the  master,  according 
to  the  cases  of  Ward  v.  Evans,  Hanky  v.  Watts,  and  Thorold  v.  Smith. 
A  master  commands  his  servant  to  sell  his  horse,  the  servant  sells  him 
as  a  good  one,  no  action  against  the  master. 

But  the  court  were  all  of  opinion  that  the  verdict  was  well  given, 
and  that  the  master  was  chargeable,  and  he  onl}- ;  for  a  servant,  by 
transacting  affairs  for  his  master,  does  therebj*  derive  a  general  au- 
thority and  credit  from  him ;  and  if  this  general  authority'  should  be 
liable  to  be  determined  for  a  time  b}-  an}-  particular  instructions  or 
orders,  to  which  none  but  the  master  and  servant  are  priv}-,  there 
would  be  an  end  of  all  dealing  but  with  the  master.  The  master  has 
put  himself  in  the  power  of  the  servant  b\-  trusting  him  with  the  bill. 
The  case  of  Monk  v.  Cla3'ton^  was  where  the  act  of  a  servant,  though 
out  of  place,  bound  his  master,  b\-  reason  of  the  former  credit  given 
him  by  his  master's  service,  the  other  not  knowing  that  he  was  dis- 
charged. And  as  for  the  cases  put,  there  was  this  main  difference 
between  them,  that  nothing  came  to  the  master's  use  ;  as  here  the  notes 
did.  In  some  of  those  cases  there  was  a  prior  debt,  but  none  here.  It 
was  agreed  by  the  court  that  the  property  of  the  note  was  not  trans- 
ferred and  vested  in  B.,  but  was  only  in  nature  of  a  clepositum  or  secu- 
rity to  him,  for  there  is  no  indorsement;  nor  could  he  have  sued  upon 
the  bill ;  and  though  practice  cannot  alter  the  law,  yet  it  ma}'  explain 
an  agreement.  They  were  likewise  of  opinion  that  the  master  could 
not  recover  it  of  the  servant,  the  loss  being  occasioned  b\-  a  mere  acci- 
dent, and  not  either  folh*  or  negligence.  If  a  master  frequenth'  send 
a  servant  to  market  without  read}'  money,  so  that  the  servant  is 
trusted  upon  the  master's  account,  —  if,  in  such  a  case,  the  servant 
embezzles  the  mone}'  when  he  is  sent  with  it,  and  buy  upon  trust,  the 
master  is  chargeable ;  but  not  if  he  always  is  sent  with  ready  money. 

1  M0II07,  de  Jure  Maritimo  (ed.  1676)  270.  —  Rep. 


92  ANONYMOUS.  [CHAP.  IL 


ARMORY  V.   DELAMIRTE. 
Nisi  Prids,  Pratt,  C.  J.     1721-2. 

[1  Str.  505.] 

The  plaintiff,  being  a  chimne3'-sweeper's  boy,  found  a  jewel  and  car- 
ried it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know  what  it 
was,  and  delivered  it  into  the  hands  of  the  apprentice,  who  under  pre- 
tence of  weighing  it,  took  out  the  stones,  and  calling  to  the  master  to 
let  him  know,  it  came  to  three  halfpence  ;  the  master  offered  the  boy 
the  money,  who  refused  to  take  it,  and  insisted  to  have  the  thing  again  ; 
whereupon  the  apprentice  delivered  him  back  the  socket  without  the 
stones.  And  now  in  trover  against  the  master  these  points  were 
ruled :  — 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding 
acquire  an  absolute  property'  or  ownership,  yet  he  has  such  a  property 
as  will  enable  him  to  keep  it  against  all  but  the  rightful  owner,  and 
consequentl}'  may  maintain  trover. 

2.  That  the  action  well  lay  against  the  master,  who  gives  a  credit  to 
his  apprentice,  and  is  answerable  for  his  neglect. 

3.  As  to  the  value  of  the  jewel,  several  of  the  trade  were  examined 
to  prove  what  a  jewel  of  the  finest  water  that  would  fit  the  socket  would 
be  worth ;  and  the  Chief  Justice  directed  the  jury,  that  unless  the 
defendant  did  produce  the  jewel,  and  show  it  not  to  be  of  the  finest 
water,  they  should  presume  the  strongest  against  him,  and  make  the 
value  of  the  best  jewels  the  measure  of  their  damages,  which  they 
accordingly  did.^ 


ANONYMOUS. 
Nisi  Prius,  Pratt,  C.  J.     1722. 

[1   Str.  527.] 

The  Chief  Justice  allowed  the  wife's  declaration,  that  she  agreed  to 
paj'  4s.  per  week  for  nursing  a  child,  was  good  evidence  to  charge  the 
husband  ;  this  being  a  matter  usually  transacted  by  the  women. 

'  Ace:  Mead  v.  Hamond,  1  Str.  505  (1721-2).  And  see  Gary  v.  Webster,  I  Star- 
480(1721).— Ed. 


SECT.  I.]  BLACKSTONE'S    COMMENTARIES.  93 


GRAMMAR  v.    NIXON. 
Nisi  Prius,  Eyre,  C.  J.     1725. 

[1    Str.    653.] 

A  goldsmith's  apprentice  sold  an  ingot  of  gold  and  silver  upon  a 
special  warranty  that  it  was  of  the  same  value  per  ounce  with  an  essay 
then  shown.  Upon  the  evidence  it  appeared  he  had  forged  the  essay, 
and  that  the  ingot  was  made  out  of  a  lodger's  plate,  which  he  had 
stolen.  And  the  Chief  Justice  held  the  master  was  answerable  in  this 
case. 

Strange,  jjro  def\ 


Blackstone's  Commentaries,  I.,  425-427,  429-432  (1765)  :  — 

1.  The  first  sort  of  servants,  therefore,  acknowledged  by  the  laws 
of  England,  are  menial  servants  ;  so  called  from  being  intra  moenia,  or 
domestics.  The  contract  between  them  and  their  masters  arises  upon 
the  hiring.   .  .  . 

2.  Another  species  of  servants  are  called  apprentices  (from  ap- 
prendre,  to  learn),  and  are  usually'  bound  for  a  term  of  3ears,  b}'  deed 
indented  or  indentures,  to  serve  their  masters,  and  be  maintained  and 
instructed  b}-  them.  .  .  . 

3.  A  third  species  of  servants  are  labourers,  who  are  only  hired  b}' 
the  day  or  the  week,  and  do  not  live  i)itra  mocnia,  as  part  of  the 
family.  .  .  . 

4.  There  is  yet  a  fourth  species  of  servants,  if  thej'  ma}-  be  so 
called,  being  rather  in  a  superior,  a  ministerial,  capacity ;  such  as 
steioards,  factors,  Siud  bailiffs:  whom,  however,  the  law  considers  as 
servants  pro  tempore,  with  regard  to  such  of  their  acts  as  affect  their 
master's  or  employer's  property'.  .  .   . 

As  for  those  things  which  a  servant  ma}'  do  on  behalf  of  his  master, 
the}-  seem  all  to  proceed  upon  this  principle,  that  the  master  is  answer- 
able for  the  act  of  his  servant,  if  done  by  his  command,  either  expressly 
given  or  implied  :  nam  qui  facit  per  alium,  facit  per  se.  Therefore,  if 
the  servant  commit  a  trespass  by  the  command  or  encouragement  of 
his  master,  the  master  shall  be  guilty  of  it :  though  the  servant  is  not 
thereby  excused,  for  he  is  only  to  obey  his  master  in  matters  that  are 
honest  and  lawful.  If  an  innkeeper's  servants  rob  his  guests,  the 
master  is  bound  to  restitution  :  for  as  there  is  a  confidence  reposed  in 
him,  that  he  will  take  care  to  provide  honest  servants,  his  negligence 
is  a  kind  of  implied  consent  to  the  robbery ;  nam  qui  non  prohibet,  cum 
prohibere possit,  jtibet.  So  likewise  if  the  drawer  at  a  tavern  sells  a 
man  bad  wine,  whereby  his  health  is  injured,  he  may  bring  action 
against  the  master :  for  although  the  master  did  not  expressly  order  the 


94  blackstone's  commentaries.  [chap.  II. 

servan^j  to  sell  it  to  that  person  in  particular,  yet  his  permitting  him 
to  draw  and  sell  it  at  all  is  impliedlj'  a  general  command. 

In  the  same  manner,  whatever  a  servant  is  permitted  to  do  in  the 
usual  course  of  his  business,  is  equivalent  to  a  general  command.  If 
I  pay  money  to  a  banker's  servant,  the  banker  is  answerable  for  it : 
if  I  pay  it  to  a  clergyman's  or  a  physician's  servant,  whose  usual  busi- 
ness it  is  not  to  receive  money  for  his  master,  and  he  embezzles  it,  I 
must  pay  it  over  again.  If  a  steward  lets  a  lease  of  a  farm,  without 
the  owner's  knowledge,  the  owner  must  stand  to  the  bargain  ;  for  this 
is  the  steward's  business.  A  wife,  a  friend,  a  relation,  that  use  to 
transact  business  for  a  man,  are  quoad  hoc  his  servants  ;  and  the  princi- 
pal must  answer  for  their  conduct :  for  the  law  implies  that  they  act 
under  a  general  command  ;  and  without  such  a  doctrine  as  this  no 
mutual  intercourse  between  man  and  man  could  subsist  with  any  toler- 
able convenience.  If  I  usual!}'  deal  with  a  tradesman  by  myself,  or 
constantl}'  pay  him  read}'  money,  I  am  not  answerable  for  what  my 
servant  takes  up  upon  trust ;  for  here  is  no  implied  order  to  the  trades- 
man to  trust  mj'  servant ;  but  if  I  usually  send  him  upon  trust,  or 
sometimes  on  trust  and  sometimes  with  ready  mone^',  I  am  answerable 
for  all  he  takes  up  ;  for  the  tradesman  cannot  possibly'  distinguish  when 
he  comes  b}'  my  order,  and  when  upon  his  own  authority. 

If  a  servant,  lastly,  by  his  negligence  does  any  damage  to  a  stranger, 
the  master  shall  answer  for  his  neglect :  if  a  smith's  servant  lames  a 
horse  while  he  is  shoeing  him,  an  action  lies  against  the  master,  and 
not  against  the  servant.-^  But  in  these  cases  the  damage  must  be 
done  while  he  is  actually  employed  in  the  master's  service ;  otherwise 
the  servant  shall  answer  for  his  own  misbehaviour.  Upon  this  principle, 
by  the  common  law,  if  a  servant  kept  his  master's  fire  negligently,  so 
that  his  neighbour's  house  was  burned  down  thereby,  an  action  lay 
against  the  master ;  because  this  negligence  happened  in  his  service ; 
otherwise,  if  the  servant,  going  along  the  street  with  a  torch,  by 
negligence  sets  fire  to  a  house;  for  there  he  is  not  in  his  master's 
Immediate  service  ;  and  must  himself  answer  the  damage  personally. 
But  now  the  common  law  is,  in  the  former  case,  altered  by  statute  6 
Ann.  c.  3,  which  ordains  that  no  action  shall  be  maintained  against 
any,  in  whose  house  or  chamber  any  fire  shall  accidentall}'  begin  ;  for 
their  own  loss  is  sufficient  punishment  for  their  own  or  their  servant's 
carelessness.  .  .  .^ 

1  "  This  is,  of  course,  not  law  to  day,  and  probably  was  not  law  when  written.  Black- 
stone  simply  repeated  the  doctrine  of  the  Year  Books.  The  servant  had  not  expressly 
assumed  to  shoe  carefully.  .  .  .  This  primitive  notion  of  legal  liability  has,  of  course, 
entirely  disappeared  from  the  law.  An  assumpsit  is  no  longer  an  essential  allegation 
in  these  actions  of  tort,  and  there  is,  therefore,  little  or  no  semblance  of  analogy 
between  these  actions  and  actions  of  contract."  Professor  J.  B.  Ames,  "  The  History 
of  Assumpsit,"  2  Harv.  L.  Rev.  1,  4.  — Ed. 

'■^  "  Blackstone  .  .  .  misunderstood  '  accidentally '  to  include  '  negligently  '  in  these 
statutes.  This  was  corrected  by  Philliter  v.  Phippard,  11  Q,  B.  347  (1843)."  Pro- 
fessor J.  H.  Wigmore,  "  Responsibility  for  Tortious  Acts,"  7  Harv.  L.  Rev.  441,  449, 
n.  (6).  —  Ed. 


SECT.  II.]  BRUCKER   V.   FROMONT.  95 

We  may  observe,  that  in  all  the  cases  here  put,  the  master  ma^  be 
frequently  a  loser  by  the  trust  reposed  in  his  servant,  but  never  can  be 
a  gainer;  he  may  frequently  be  answerable  for  his  servant's  misbe- 
haviour, but  never  can  shelter  himself  from  punishment  by  laying  the 
blame  on  his  agent.  The  reason  of  this  is  still  uniform  and  the  same  ; 
that  the  wrong  done  by  the  servant  is  looked  upon  in  law  as  the  wron<^ 
of  the  master  himself;  and  it  is  a  standing  maxim,  that  no  man  shall  be 
allowed  to  make  any  advantage  of  his  own  wrong.  ^ 


SECTION  n. 

Torts.^ 


BRUCKER  V.   FROMONT. 

King's  Bench.     1796. 

[6  T.  R.  659.] 

The  plaintiff  declared  against  the  defendant  for  that  he  on  such  a 
day  was  driving  a  cart  and  horse  along  the  king's  highway,  and  that 
he  so  carelessly-,  negligently,  and  improvidently  guided,  drove,  and  di- 
rected the  same  that  the  cart  for  want  of  due  care  and  caution  of  the 
defendant  in  that  behalf  was  violently  forced  and  driven  and  run  against 
the  plaintiff's  horse  then  passing  and  drawing  the  plaintiff's  chariot 
along  the  said  highway,  whereby  the  shaft  of  the  defendant's  cart  was 
forced  into  the  body  of  the  plaintiff's  horse  and  killed  it. 

The  fact  was  that  the  defendant's  servant  was  driving  the  cart  at 
the  time  when  the  accident  happened,  and  the  defendant  himself  was 
not  present.  Whereupon  it  was  objected  b}'  the  defendant's  counsel  at 
the  trial  that  the  action  was  misconceived,  as  it  ought  to  have  stated,  not 
that  the  defendant  himself  had  done  the  act,  but  that  it  had  been  done 
bj'  the  act  of  his  servant ;  and  jMr.  Baron  Thomson  before  whom  it 
was  tried  at  the  last  assizes  for  Berkshire,  nonsuited  the  plaintiff.     A 

1  For  a  full  statement  and  discussion  of  the  authorities  that  show  the  history  of  the 
principal's  responsibility  for  his  agent's  torts,  see  Professor  J.  H.  Wigmore's  articles 
on  Kesponsihility  for  Tortious  Acts,  in  7  Harv.  L.  Eev.  315,  .383,  441.  For  historical 
matter  as  to  both  contracts  and  torts,  see  2  Pollock  and  iMaitland's  History  of  English 
Law,  225-227,  526-532,  and  Mr.  Justice  Holmes'  articles  on  Agency  in  4  Harv.  L. 
Rev.  345,  and  5  id.  1.  — Ed. 

2  In  addition  to  cases  on  the  torts  of  persons  who  are  confessedly  servants,  this 
section  presents  cases  on  the  distinction  between  servants  and  independent  contractora 
Cases  on  fellow-servants  are  found  in  Chapter  VI.  —  Ed. 


96  BRUCKER  V.   FROMONT.  [CHAP.  II. 

rule  having  been  obtained  to  show  cause  why  the  nonsuit  should  not  be 
set  aside,  and  a  new  trial  granted, 

Plumer  and  Milles  showed  cause  ;  contending  that  the  master  was 
not  liable  for  the  act  of  his  servant  under  this  general  form  of  declar- 
ing, which  was  not  conformable  to  the  generality  of  precedents,  nor 
warranted  by  any  express  decision.  Mr.  Justice  Blackstone,  1  Com. 
429,  &c.,  states  the  liability  of  masters  for  the  acts  of  their  servants  on 
three  distinct  grounds  :  first,  where  the  servant  acts  by  the  master's 
express  command,  in  which  case  the  act  of  the  servant  is  considered 
as  the  act  of  the  master,  on  the  principle  of  quifacitper  alium  facit  per 
se  ;  and  the  person  injured  may  declare  against  the  latter  as  for  his 
own  act.  Secondl}^,  where  the  servant  is  acting  in  the  usual  course  of 
his  master's  business  at  the  time  of  the  act  complained  of;  in  which 
case  the  law  implies  that  it  was  done  by  the  master's  consent ;  and  he 
is  liable  in  the  same  manner  as  in  the  former  instance.  Thirdly,  where 
by  his  own  negligence  or  wilfulness  the  servant  does  an  injury  to  an- 
other while  in  his  master's  employment ;  here,  although  the  master  is 
still  liable,  yet  that  liability  arises,  not  from  any  implied  command  or 
consent  of  the  master  to  the  wrongful  act  of  his  servant,  but  from  the 
legal  relation  subsisting  between  them  by  virtue  of  which  the  former  is 
answerable  for  the  default  of  the  latter.  In  such  cases,  therefore,  the 
act  itself  not  being  imputable  to  the  master,  but  only  the  consequences 
arising  from  the  relation  in  which  he  stands,  the  party  injured  ought 
by  his  declaration  to  allege  the  fact  trulj',  and  refer  the  act  to  the 
servant  who  did  it,  deducing  the  master's  liability  from  such  relation ; 
and  the  more  so  in  order  that  the  court  may  see  upon  the  face  of  the 
record  that  the  act  imputed  is  such  for  which  by  law  the  master  is 
answerable.  For  it  is  not  every  wrongful  act  of  a  servant  for  which  the 
master  is  compellable  to  make  satisfaction  ;  but  it  must  appear  to  be 
such  as  happened  within  the  scope  of  his  employ.  But  if  this  general 
mode  of  declaring  be  deemed  sufficient,  the  master  will  be  precluded 
from  moving  in  arrest  of  judgment,  or  taking  the  opinion  of  a  court 
of  error.  The  only  cases  referred  to  in  support  of  the  action  were, 
first,  Michael  v.  Alestree  and  another,  2  Lev.  172,  where  an.  action 
Was  brought  against  the  master  and  servant  for  an  injury  done  to  the 
plaintiff  by  the  servant  in  exercising  his  master's  horses,  which  were 
unruly,  in  Lincoln's-Inn-Fields.  The  act  there  is  indeed  laid  to  have 
been  done  by  both,  though  the  master  was  absent ;  3'et  the  ground  of 
the  judgment  was,  that  it  should  be  intended  that  the  master  sent  the 
servant  there  to  train  the  horses.  The  injury  is  stated  to  have  arisen 
from  the  ferocity  and  ungovernable  nature  of  the  horses,  which  were 
driven  there  to  be  rendered  tractable.  And  if  the  master  directed 
the  servant  to  train  the  horses  in  an  improper  place,  and  in  so  doing  the 
injury  happened,  the  declaration  was  well  adapted  to  the  truth  of  the 
case  on  the  principles  before  laid  down.  The  other  case  is  that  of 
Turberville  v.  Stampe,  1  Ld.  Raym.  264  ;  3  Ld.  Raym.  375  ;  Skin.  681 
Carth.  425  ;  Salk.  13  S.  C,  where  the  plaintiff  declared  upon  the  cus- 


SECT.  II.]  BRUCKER  V.    FROMONT.  97 

torn  of  the  realm  against  the  defendant  for  so  negligently  keeping  his 
fire  that  it  consumed  tlie  plaintiff's  heath  ;  it  only  appears  argueyalo 
that  the  fire  was  made  by  the  defendant's  servant.  But  that  case  is 
distinguishable  from  the  present  in  many  respects.  The  question  arose 
upon  a  motion  in  arrest  of  judgment,  and  not  upon  a  new  trial ;  and 
therefore  it  was  not  in  dispute  how  far  the  evidence  tallied  with  the 
declaration  ;  and  the  declaration  was  good  on  the  face  of  it.  Next,  it 
was  an  action  founded  on  the  custom  of  the  realm  ;  and  therefore  by 
law  the  act  was  specially  imputable  to  the  defendant.  Again,  it  is 
stated  to  have  been  a  fire  lighted  in  the  course  of  husbandry,  which 
must  necessarily  have  been  either  by  the  express  or  implied  command 
of  the  ovv^ner ;  in  which  case  the  objection  could  not  have  arisen  even 
at  Nisi  Prius.  And  the  court  are  made  to  say  that  if  the  servant  kin- 
dled the  fire  by  way  of  husbandry,  and  proper  for  his  employment, 
though  he  had  no  express  command,  his  master  shall  be  liable  ;  for  it 
shall  be  intended  that  the  servant  had  authority  from  his  master,  it  be- 
ing for  his  master's  benefit.  Both  these  cases  therefore  fall  within  the 
former  rules,  and  do  not  apply  to  the  present,  where  the  liability  of  the 
master  arises  from  the  culi)able  conduct  of  the  servant  in  an  instance 
which  cannot  be  imputed  either  to  an  express  or  implied  command. 

Williams,  Serjt.,  and  liussell,  after  mentioning  the  case  of  Turber- 
ville  V.  Stampe  to  show  that  this  mode  of  declaring  was  considered  in 
Lord  Holt's  time  as  the  proper  form,  where  an  action  is  brought  against 
the  master  for  the  negligence  of  the  servant,  upon  the  principle  that 
it  is  sufficient  to  declare  upon  the  legal  effect  of  any  act,  were  stopped 
by  the  court. 

Lord  Kenyon,  C.  J.  On  reason  and  on  principle  I  should  have  been 
inclined  to  support  the  decision  at  Nisi  Prius,  because  it  is  most  con- 
venient to  state  the  real  cause  of  action  on  the  record.  But  I  cannot 
distinguish  this  case  from  that  cited  from  Lord  Raymond's  Report ; 
nor  am  I  equal  to  the  task  of  overturning  a  precedent  that  was  con- 
sidered b}'  Lord  Holt  and  the  court  as  a  good  one. 

AsHHURST,  J.  I  think  it  may  be  stated  in  the  declaration  either 
way,  though  it  is  certainly  most  convenient  to  state  the  fact  as  it  really 
happened. 

Grose,  J.  The  use  of  a  declaration  is  to  inform  the  defendant  of 
everything  that  the  plaintiff  intends  to  prove,  and  that  the  defendant 
is  called  upon  to  answer ;  and  on  looking  at  this  declaration  the  de- 
fendant could  not  know  that  the  action  was  brought  against  him  for 
the  act  of  his  servant ;  but  I  cannot  get  rid  of  the  authority  of  the  case 
that  has  been  mentioned. 

Lawrence,  J.,  of  the  same  opinion. 

On  the  next  day  Plumer  mentioned  this  case  again  ;  observing  that 
the  case  of  Turberville  v.  Stampe,  on  the  authority  of  which  alone  he 
understood  the  court  had  granted  a  new  trial,  did  not  apply  to  this 
case,  because  there  the  question  was  not,  whether  the  facts  proved  sup- 
ported the  declaration,  but  whether  the  declaration  itself  was  good,  it 

7 


98  BUSH   V.   STEINMAN.  fCIIAP.  IL 

being  an  action  on  the  custom  of  the  realm  against  the  defendant  for 
negligentl}'  keeping  his  fire,  and  it  was  stated  in  the  declaration  that 
the  fire  was  on  a  close  of  heath  and  not  in  the  defendant's  house.  But 
Lord  Kenyon,  C.  J.,  said,  the  ground  on  which  that  case  influenced 
m}'  opinion  was,  that  that  precedent  was  at  that  time  considered  as  a 
good  one.  Hule  absolute.^ 


BUSH  V.   STEINMAN. 
IDEM   ET  ux.   V.   EUNDEM. 

Common  Pleas.     1799. 

[1  B.Sr  P.  404.] 

These  were  two  actions  on  the  case  against  the  defendant  for  caus- 
ing a  quantity  of  lime  to  be  placed  on  the  high-road,  b}'  means  of 
which  the  plaintiff  and  his  wife  were  overturned  and  much  hurt,  and 
the  chaise  in  which  they  then  were  was  considerably  damaged. 

The  two  actions  came  on  together  to  be  tried  before  Eyre,  Ch.  J.,  at 
the  Guildhall  Sittings  after  last  Hilary  term,  when  the  following  circum- 
stances appeared  in  evidence.  The  defendant  having  purchased  a 
house  by  the  road-side  (but  which  he  had  never  occupied),  contracted 
with  a  surveyor  to  put  it  in  repair  for  a  stipulated  sum  ;  a  carpenter 
having  a  contract  under  the  surveyor  to  do  the  whole  business  em- 
ployed a  bricklayer  under  him,  and  he  again  contracted  for  a  quantity 
of  lime  with  a  lime-burner,  by  whose  servant  the  lime  in  question  was 
laid  in  the  road.  The  Lord  Chief  Justice  was  of  opinion  that  the 
defendant  was  not  answerable  for  the  injury  sustained  by  the  plaintiff 
under  the  above  circumstances  ;  but  in  order  to  save  expense,  a  verdict 
was  taken  for  the  plaintiff  for  £12  12s.,  with  liberty  to  the  defendant  to 
move  to  have  a  nonsuit  entered. 

Accordingl}'  a  rule  nisi  for  that  purpose  having  been  obtained  on  a 
former  day, 

Cockell  and  Shepherd,  Serjts.,  now  showed  cause. 

Le  Blanc  and  3Iarshall,  Serjts.,  contra. 

Eyre,  C.  J.  At  the  trial  I  entertained  great  doubts  with  respect 
to  the  defendant's  liability  in  this  action.  He  appeared  to  be  so  far 
removed  from  the  immediate  author  of  the  nuisance,  and  so  far  re- 
moved even  from  the  person  connected  with  the  immediate  author  in 
the  relation  of  master,  that  to  allow  him  to  be  charged  for  the  injury 
sustained  b^-  the  plaintiff  seemed  to  render  a  circuit}'  of  action  neces- 
sary. Upon  the  plaintiff^s  recover}',  the  defendant  would  be  entitled 
to  an  action  against  the  surve3"or,  the  surveyor  and  each  of  the  sub- 
contracting parties  in  succession  to  actions  against  the  persons  with 
whom  they  immediately  contracted,   and  last  of  all  the  lime-burner 

1  Tompare  Anonymous,  Y.  B.  32  Ed.  I.  (Rolls  ed.)  3.31,  333  (1304).  —  Ed. 


SECT.  II.]  BUSH   V.   STEINMAN.  99 

would  be  entitled  to  the  common  action  against  his  own  servant.  I 
hesitated  therefore  in  carrying  the  responsibility  beyond  the  immediate 
master  of  the  person  who  committed  the  injury,  and  I  retained  my 
doul)ts  upon  the  subject,  till  I  had  heard  the  argument  on  the  part  of 
the  plaintiff,  and  had  an  opportunity  of  conferring  with  my  brothers. 
They,  including  Mr.  Justice  Buller,  are  satisfied  that  the  action  will 
lie,  and  upon  reflection,  I  am  disposed  to  concur  with  them  ;  though  I 
am  read}'  to  confess  that  I  find  great  difficult}-  in  stating  with  accuracy 
the  grounds  on  which  it  is  to  be  supported.  The  relation  between 
master  and  servant  as  commonly  exemplified  in  actions  brought  against 
the  master  is  not  sufficient ;  and  the  general  proposition  that  a  person 
shall  be  answerable  for  anj*  injury  which  arises  in  carrying  into  execu- 
tion that  which  he  has  employed  another  to  do,  seems  to  be  too  large 
and  loose.  The  principle  of  Stone  v.  Cartwright,  6  T.  R.  411,  with  the 
decision  of  which  I  am  well  satisfied,  is  certainh'  applicable  to  this 
case;  but  that  of  Littledale  v.  Lord  Lonsdale,  2  H.  Bl.  267,  299, 
conies  much  nearer.  Lord  Lonsdale's  collier}'  was  worked  in  such  a 
manner  b}'  his  agents  and  servants  (or  possibly  by  his  contractors,  for 
that  would  have  made  no  difference)  that  an  injury  was  done  to  the 
plaintiff's  house,  and  his  Lordship  was  held  responsible.  Wh}'?  Be- 
cause the  injury  was  done  in  the  course  of  his  working  the  collier}' ; 
whether  he  worked  it  by  agents,  by  servants,  or  by  contractors,  still  it 
was  his  work ;  and  though  another  person  might  have  contracted  with 
him  for  the  management  of  the  whole  concern  without  his  interfer- 
ence, yet  the  work  being  carried  on  for  his  benefit,  and  on  his  pro- 
perty, all  the  persons  employed  must  have  been  considered  as  his 
agents  and  servants  notwithstanding  any  such  arrangement ;  and  he 
must  have  been  responsible  to  all  the  world,  on  the  principle  of  sic  utere 
tuo  lit  alienum  non  Icedas.  Lord  Lonsdale  having  empowered  the 
contractor  to  appoint  such  persons  under  him  as  he  should  think  fit, 
the  persons  appointed  would  in  contemplation  of  law  have  been  the 
agents  and  servants  of  Lord  Lonsdale.  Nor  can  I  think  tliat  it  would 
have  made  an}'  difference,  if  the  injury  complained  of  had  arisen  from 
his  Lordship's  coals  having  been  placed  by  the  workmen,  on  the  prem- 
ises of  Mr.  Littledale,  since  it  would  have  been  impossible  to  distin- 
guish such  an  act  from  the  general  course  of  business  in  which  they 
were  engaged,  the  whole  of  which  business  was  carried  on  either  by 
the  express  direction  of  Lord  Lonsdale,  or  under  a  presumed  authority 
from  him.  The  principle  of  this  case  therefore  seems  to  afford  a  ground 
which  may  be  satisfactory  for  the  present  action,  though  I  do  not  say 
that  it  is  exactly  in  point.  According  to  the  doctrine  cited  from 
Blackstone's  Commentaries  if  one  of  a  family  "  layeth  oi  "  casteth  " 
anything  out  of  the  house  which  constitutes  a  nuisance  the  owner  is 
chargeable.  Suppose  then  that  the  owner  of  a  house,  with  a  view  to 
rebuild  or  repair,  employ  his  own  servants  to  erect  a  hoard  in  the  street 
(which  being  for  the  benefit  of  the  public  they  may  lawfully  do)  and 
they  carry  it  out  so  far  as  to  encroach  unreasonably  on  the  highway,  it 


100  BUSH   V.    STEINMAN.  [CHAP.  II. 

is  clear  that  the  owner  would  be  guilty  of  a  nuisance  ;  and  I  apprehend 
there  can  be  but  little  doubt  that  he  would  be  equally  guilty  if  he  had 
contracted  with  a  person  to  do  it  for  a  certain  sum  of  money,  instead 
of  employing  his  own  servants  for  the  purpose  ;  for  in  contemplation  of 
law  the  erection  of  the  hord  would  equally  be  his  act.  If  that  be  estab- 
lished we  come  one  step  nearer  to  this  case.  Here  the  defendant  by  a 
contractor,  and  by  agents  under  him,  was  repairing  his  house  ;  the 
repairs  were  done  at  his  expense,  and  the  repairing  was  his  act.  If 
then  the  injury  complained  of  by  the  plaintiff  was  committed  in  the 
course  of  making  those  repairs,  I  am  unable  to  distinguish  the  case 
from  that  of  erecting  the  hord,  or  from  Littledale  v.  Lord  Lonsdale, 
unless  indeed  a  distinction  could  be  maintained  (which  however  I  do 
not  think  possible)  on  the  ground  of  the  lime  not  having  been  deUvered 
on  the  defendant's  premises,  but  only  at  a  place  close  to  them,  with  a 
view  to  being  carried  on  to  the  premises,  and  consumed  there.  My 
brother  BuUer  recollects  a  case  which  he  would  have  stated  more 
particularly,  had  he  been  able  to  attend.  It  was  this ;  a  master  having 
employed  his  servant  to  do  some  act,  the  servant  out  of  idleness 
employed  another  to  do  it,  and  that  person  in  carrying  into  execution 
the  orders  which  had  been  given  to  the  servant  committed  an  injury  to 
the  plaintiff,  for  which  the  master  was  held  liable.  The  responsibility 
was  thrown  on  the  principal  from  whom  the  authority  originall}'  moved. 
This  determination  is  certainly  highly  convenient,  and  beneficial  to  the 
public.  Where  a  civil  injury  of  the  kind  now  complained  of  has  been 
sustained  the  remed}'  ought  to  be  obvious,  and  the  person  injured 
should  have  only  to  discover  the  owner  of  the  house  which  was  the 
occasion  of  the  mischief;  not  be  compelled  to  enter  into  the  concerns 
between  that  owner  and  other  persons,  the  inconvenience  of  which 
would  be  more  heavily  felt  than  any  which  can  arise  from  a  circuity  of 
action.  Upon  the  whole  case,  therefore,  though  I  still  feel  difficulty 
in  stating  the  precise  principle  on  which  the  action  is  founded,  I  am 
satisfied  with  the  opinion  of  my  brothers. 

Heath,  J,  I  found  my  opinion  on  this  single  point,  viz. :  that  all 
the  subcontracting  parties  were  in  the  employ  of  the  defendant.  It 
has  been  strongly  argued  that  the  defendant  is  not  liable,  because  his 
liability  can  be  founded  in  nothing  but  the  mere  relation  of  master  and 
servant ;  but  no  authority  has  been  cited  to  support  that  proposition. 
Whatever  may  be  the  doctrine  of  the  civil  law,  it  is  perfectlv  clear 
that  our  law  carries  such  liabilitj-  much  further.  Thus  a  factor  is  not  a 
servant ;  but  being  employed  and  trusted  by  the  merchant,  the  latter, 
according  to  the  case  in  Salkeld,  is  responsible  for  his  acts.  There  are 
besides  this  other  cases.  As  where  a  person  hires  a  coach  upon  a  job, 
and  a  job-coachman  is  sent  with  it,  the  person  who  hires  the  coach  is 
liable  for  any  mischief  done  by  the  coachman  while  in  his  employ, 
though  he  is  not  his  servant.  We  all  remember  an  action  for  defamar 
tion  brought  against  Tattersall  who  was  the  proprietor  of  a  newspaper, 
with  sixteen  others ;  the  libel  was  inserted  by  the  persons  whom  the 


SECT.  II.]  BUSH   V.    STEINMAN.  101 

proprietors  had  employed  by  contract  to  collect  news,  and  compose  the 
paper,  yet  the  defendant  was  held  liable.  Now  this  is  a  strong  case  to 
show  that  it  makes  no  difference  wliether  the  persons  employed  by  the 
defendant  were  employed  on  a  quantum  meruit,  or  were  to  be  paid  a 
stipulated  sura.  In  Rosewell  v.  Prior,  Salk.  460,  an  action  for  the  con- 
tinuance of  a  nuisance  was  held  to  lie  against  the  defendant  though  he 
had  underlet  the  building  which  was  the  subject  of  it,  and  though  the 
plaintiff  had  recovered  against  him  in  a  former  action  for  the  erection 
of  the  nuisance ;  for  the  court  said  "  he  affirmed  the  continuance  by  his 
demise,  and  received  rent  as  a  consideration  for  it."  That  case  la 
analogous  to  the  present ;  the  ground  of  the  decision  having  been,  that 
the  defendant  was  benefited  by  the  nuisance  complained  of.  It  is  not 
possible  to  conceive  a  case  in  which  more  mischief  might  arise  than  in 
the  present,  if  the  various  subcontracts  should  be  held  sufficient  to 
defeat  the  plaintiff  of  his  action.  Probably'  he  would  not  be  able  to 
trace  them  all,  since  none  of  the  parties  could  give  him  anv  information, 
and  consequently  he  might  be  turned  round  every  time  he  came  to 
trial. 

RooKE,  J.  I  am  of  the  same  opinion.  He  who  has  work  going  on 
for  his  benefit,  and  on  his  own  premises,  must  be  civilh"  answerable 
for  the  acts  of  those  whom  he  emplo3S.  According  to  the  principle  of 
the  case  in  2  Lev.  it  shall  be  intended  b}'  tlie  court,  that  he  has  a  con- 
trol over  all  those  persons  who  work  on  his  premises,  and  he  shall 
not  be  allowed  to  discharge  himself  from  that  intendment  of  law  by 
an}'  act  or  contract  of  his  own.  He  ought  to  reserve  such  control,  and 
if  he  deprive  himself  of  it,  the  law  will  not  permit  him  to  take  ad- 
vantage of  that  circumstance  in  order  to  screen  himself  from  an  action. 
The  case  which  has  been  supposed  of  the  lime  having  been  deposited  at 
a  distance  from  the  defendant's  house,  and  the  accident  having  hap- 
pened there,  does  not  apply ;  for  here  a  person  acting  under  the 
general  employment  of  the  defendant  brought  a  quantity  of  lime  to 
the  premises  and  deposited  it  without  any  objection  being  made  by 
any  person  there,  whereas  it  was  the  dut}'  of  the  defendant  to  have 
provided  a  person  to  superintend  those  employed  in  his  work.  The 
person  from  whom  the  whole  authorit}'  is  originallj'  derived,  is  the 
person  who  ought  to  be  answerable,  and  great  inconvenience  would 
follow  if  it  were  otherwise.  There  is  such  a  variety  of  sub-contracts  in 
this  case  as  rarely  occurs,  but  this  serves  only  to  illustrate  more 
strongly  the  mischief  which  would  ensue  should  we  depart  from  the 
doctrine  in  Stone  v.  Cartwright.  In  that  case,  and  in  Littledale  v. 
Lord  Lonsdale,  the  safest  rule  was  adopted.  The  plaintiff  may  bring 
his  action  either  against  the  person  from  whom  the  authority  flows,  and 
for  whose  benefit  the  work  is  carried  on,  or  against  the  person  by  whom 
the  injury  was  actually  committed.  If  the  employer  suffer  by  the  acts 
of  those  with  whom  he  has  contracted  he  must  seek  his  remedy  against 
them.  Utile  discharged. 


102  McMANUS   V.    CRICKETT.  [CHAP.  L 


McMANUS   V.   CRICKETT. 
King's  Bench.     1800. 

[1  East,  106.1 

This  case  was  very  much  discussed  at  the  bar,  upon  a  motion  to  set 
aside  a  verdict  for  the  plaintiff,  and  enter  a  nonsuit,  by  Gibbs  and 
Jf  oat?  against  the  rule,  and  Garrow  and  Giles  in  support  of  it.  The 
court  took  time  to  consider  of  their  judgment ;  and  afterwards  entered 
so  fully  into  the  cases  cited  and  the  arguments  urged  at  the  bar  that 
it  is  unnecessary  to  detail  them  in  the  usual  form. 

Lord  Kenyon,  C.  J.,  now  delivered  the  unanimous  opinion  of  the 
court. 

This  is  an  action  of  trespass,  in  which  the  declaration  charges  that 
the  defendant  with  force  and  arms  drove  a  certain  chariot  against  a 
chaise  in  which  the  plaintiff  was  riding  in  the  king's  highway,  by  which 
the  plaintiff  was  thrown  from  his  cjhaise  and  greatly  hurt.  At  the  trial 
it  appeared  in  evidence  that  one  Brown,  a  servant  of  the  defendant, 
wilfully  drove  the  chariot  against  the  plaintiff's  chaise,  but  that  the 
defendant  was  not  himself  present,^  nor  did  he  in  any  manner  direct  or 
assent  to  the  act  of  the  servant;  and  the  question  is,  if  for  this  wilful 
and  designed  act  of  the  servant  an  action  of  trespass  lies  against  the 
defendant,  his  master.  As  this  is  a  question  of  very  general  extent, 
and  as  cases  were  cited  at  the  bar,  where  verdicts  had  been  obtained 
against  masters  for  the  misconduct  of  their  servants  under  similar  cir- 
cumstances, we  were  desirous  of  looking  into  the  authorities  on  the  sub- 
ject, before  we  gave  our  opinion  ;  and  after  an  examination  of  all  that  we 
could  find  as  to  this  point,  we  think  that  this  action  cannot  be  maintained. 
It  is  a  question  of  \&\'y  general  concern,  and  has  been  often  canvassed ; 
but  I  hope  at  last  it  will  be  at  rest.  It  is  said  in  Bro.  Abr.  tit.  Trespass, 
pi.  435,  "•  If  my  servant,  contrary  to  my  will,  chase  my  beasts  into  the 
soil  of  another,  I  shall  not  be  punished."  And  in  2  Roll.  Abr.  553, 
"  If  my  servant,  without  m}'  notice,  put  my  beasts  into  another's  land, 
my  servant  is  the  trespasser,  and  not  I ;  because  b}'  the  voluntar}'  put- 
ting of  the  beasts  there  without  m}-  assent,  he  gains  a  special  property 
for  the  time,  and  so  to  this  purpose  they  are  his  beasts."  I  have 
looked  into  the  correspondent  part  in  Vin.  Abr.  and  as  he  has  not  pro- 
duced any  case  contrary  to  this,  I  am  satisfied  with  the  authority  of  it. 
And  in  Noy's  Maxims,  ch.  44,  "If  I  command  my  servant  to  distrain, 
and  he  ride  on  the  distress,  he  shall  be  punished,  not  I."  And  it  is 
laid  down  by  Holt,  C.  J.,  in  Middleton  v.  Fowler,  Salk.  282,  as  a  gen- 
eral position,  "  that  no  master  is  chargeable  with  the  acts  of  his  servant 
but  when  he  acts  in  the  execution  of  the  authority  given  him."     Now 

^  No  person  was  in  the  carriage :  the  act  was  done  by  the  servant  either  in  going 
for  or  after  he  had  set  down  his  master.  —  Rep. 


SECT.  II.]  McMANUS   V.    CRICKETT.  103 

when  a  servant  quits  sight  of  the  object  for  which  he  is  employed,  and 
without  having  in  view  his  master's  orders  pursues  that  which  his  own 
malice  suggests,  he  no  longer  acts  in  pursuance  of  the  authority  given 
him,  and  according  to  the  doctrine  of  Lord  Holt,  his  master  will  not 
be  anwerable  for  such  act.  Huch  upon  the  evidence  was  the  present 
case ;  and  the  technical  reason  in  2  Roll.  Abr.  with  respect  to  the 
sheep  applies  here  ;  and  it  may  be  said  that  the  servant,  by  wilfully 
driving  the  chariot  against  the  plaintiff's  chaise,  without  his  master's 
assent,  gained  a  special  property  for  the  time,  and  so  to  that  purpose 
the  chariot  was  the  servant's.  This  doctrine  does  not  at  all  militate 
with  the  cases  in  which  a  master  has  been  holden  liable  for  tlie  mis- 
chief arising  from  the  negligence  or  unskilfulness  of  his  servant,  who 
had  no  purpose  but  the  execution  of  his  master's  orders ;  but  the 
form  of  those  actions  proves  that  this  action  of  trespass  cannot  be 
maintained  :  for  if  it  can  be  supported,  it  must  be  upon  the  ground 
that  in  trespass  all  are  principals ;  but  the  form  of  those  actions 
shows  that  where  the  servant  is  in  point  of  law  a  trespasser,  the 
master  is  not  chargeable  as  such  ;  though  liable  to  make  a  compen- 
sation for  the  damage  consequential  from  his  employing  of  an  unskilful 
or  negligent  servant.  The  act  of  the  master  is  the  employment  of 
the  servant ;  but  from  that  no  immediate  prejudice  arises  to  those 
who  may  suffer  from  some  subsequent  act  of  the  servant.  If  this 
were  otherwise,  the  plaintiffs  in  the  cases  mentioned  in  1  Lord  Raym. 
739  (one  where  the  servants  of  a  carman  through  negligence  ran  over 
a  bo}'  in  the  streets  and  maimed  him  ;  and  the  other,  where  the  ser- 
vants of  A.  with  his  cart  ran  against  the  cart  of  B.  and  overturned  it, 
by  which  a  pipe  of  wine  was  spilt)  must  have  been  nonsuited  from 
their  mistaking  the  proper  form  of  action,  in  bringing  an  action  upon 
the  case,  instead  of  an  action  of  trespass  ;  for  there  is  no  doubt  of  the 
servants,  in  those  cases,  being  liable  as  trespassers,  even  though  the}' 
intended  no  mischief;  for  which,  if  it  were  necessary,  Weaver  v.  Ward, 
in  Hobart  134,  and  Dickinson  w.  Watson,  in  Sir  Thomas  Jones,  205,  are 
authorities.  But  it  must  not  be  inferred  from  this  that  in  all  cases 
where  an  action  is  brought  against  the  servant  for  improperh'  con- 
ducting his  master's  carriage,  by  which  mischief  happens  to  another, 
the  action  must  be  trespass.  Michael  v.  Allestree,  in  2  Levinz,  172, 
where  an  action  on  the  case  was  brought  against  a  man  and  his  servant 
for  breaking  a  pair  of  horses  in  Lincoln's  Inn  Fields,  where,  being 
unmanageable,  they  ran  awa}'  with  the  carriage  and  hurt  the  plaintiffs 
wife,  is  an  instance  to  show  that  trespass  on  the  case  ma}*  be  the 
proper  form  of  action.  And  upon  a  distinction  between  those  cases 
where  the  mischief  immediately  proceeds  from  something  in  which  the 
defendant  is  himself  active,  and  where  it  may  arise  from  the  neglect 
or  other  misconduct  of  the  party,  but  not  immediately,  and  which  per- 
haps may  amount  only  to  a  nonfeasance,  we  held  in  Ogle  v.  Barnes,  8 
Term  Rep.  188,  that  the  plaintiff  was  entitled  to  recover.  The  case  of 
Savignac  and  Roome,  6  Term  Rep.  125,  which  was  much  pressed  as 


104  WEYLAND   V.   ELKINS.  [CHAP.  IL 

supporting  this  action,  came  before  the  court  on  a  motion  in  arrest 
of  judgment ;  and  the  only  question  decided  by  the  court  was,  that  the 
plaintiff  could  not  have  judgment,  as  it  appeared  that  he  had  brought 
an  action  on  the  case  for  that  which  in  law  was  a  trespass  ;  for  the 
declaration  there  stated  that  the  defendant  by  his  servant  wilfully  drove 
his  coach  against  the  plaintiff's  chaise.  Day  v.  Edwards,  5  Term  Rep. 
648,  was  also  mentioned  ;  which  was  an  action  on  the  case,  in  which 
the  declaration  charged  the  defendant  personally  with  furiously  and 
negligentl}'  driving  his  cart ;  that  by  and  through  the  furious,  negli- 
gent, and  improper  conduct  of  the  defendant  the  said  cart  was  driven 
and  struck  against  the  plaintiff's  carriage  ;  and  on  demurrer,  the  court 
were  of  opinion  that  the  fact  complained  of  was  a  trespass.  And  in 
the  last  case  that  was  mentioned,  of  Brucker  v.  Fromont,  6  Term  Rep. 
659,  the  only  point  agitated  was,  whether  evidence  of  the  defendant's 
servant  having  negligently  managed  a  cart  supported  the  declaration, 
which  imputed  that  negligence  to  the  defendant ;  and  the  court  with 
reluctance  held  that  it  did,  on  the  authority  of  a  precedent  in  Lord 
Raymond's  Reports,  264,  of  Turberville  and  Stamp.  In  none  of 
these  cases  was  the  point  now  in  question  decided  ;  and  tliose  determi- 
nations do  not  contradict  the  opinion  we  now  entertain,  which  is,  that 
the  plaintiff  cannot  recover,  and  that  a  nonsuit  must  be  entered. 

Per  Curiam,  Hule  absolute  for  entering  a  nonsuit. 


WEYLAND   V.   ELKINS. 
Nisi  Prius.     1816. 
[  Holt  N.  P.  227.1] 

This  was  an  action  against  the  defendant,  the  proprietor  of  a 
wagon,  for  the  negligence  and  misconduct  of  his  servant,  the  driver ; 
who  had  driven  the  wagon  against  a  cart  which  stood  in  the  public 
street,  in  Kensington,  and  had  forced  the  cart  against  the  plaintiff^s 
shop  window,  which  was  thereby  broken.  The  wagon  belonged  to  the 
defendant ;  but  the  horses  were  the  property  of  another  partner,  of  the 
name  of  Dyson.  The  business  of  a  public  carrier  was  divided  between 
them :  the  defendant  provided  the  wagon,  and  Dyson  found  the  horses 
and  drivers,  from  London  to  Earnham  ;  but  from  Farnham  to  Gosport, 
which  was  the  conclusion  of  the  stage,  the  defendant  provided  horses 
and  drivers.  He  had,  however,  no  actual  control  over  the  wagoner  at 
the  time  of  the  accident ;  on  the  contrar}-,  Dyson  hired  him,  and  paid 
him  his  wages. 

Best^  Serjeant,  for  the  defendant.  Elkins  is  not  responsible :  it  is 
his  wagon,   but  it  is  neither  drawn  hy  his  horses  nor  driven  by  his 

»  s.  c.  1  Starkie,  272.  — Ed 


SECT.  II.]  LAUGHER   V.    POINTER.  105 

servant.  The  principle  of  the  law  is,  to  hold  the  master  responsible 
for  the  injury  done  by  his  servant  in  the  course  of  his  employ  ;  the 
relation  of  master  and  servant  must  therefore  subsist,  or  the  law  can 
raise  no  responsibility.  It  would  be  unjust  to  make  one  man  liable  for 
the  act  of  another,  whom  he  has  not  placed  in  his  employment,  and 
over  whom  he  has  no  control.  If  I  lend  a  friend  my  carriage,  and  he 
hires  a  coachman  to  drive  it,  am  I  responsible,  as  the  owner  of  the 
carriage,  for  an  injury  done  by  the  driver?  The  action  is  a  hard  one 
at  best,  and  ought  not  to  be  extended.  He  cited  Barton  v.  Hanson, 
2  Taunt.  49. 

GiBBS,  C.  J.  The  action  is  maintainable  on  this  principle :  the 
wagon  belongs  to  Elkins  ;  he  has  the  profit  of  the  carriage.  On  what 
terms  he  engages  with  other  persons  to  horse  the  wagon,  we  cannot 
tell.  It  is  sufficient  that  he  is  found  to  be  a  partner  in  a  common  con- 
cern, and  jointly  interested  with  Dyson  in  the  profits.  It  is  of  no 
importance  how  P^lkins  and  Dyson  apportion  the  carrying  business 
between  them.  The  servant  is  engaged  to  drive  the  wagon  for  Elkins, 
as  well  as  for  his  immediate  employer  Dyson.  Though,  by  the  subor- 
dinate contract  between  the  partners  he  is  the  servant  of  one,  yet  in 
the  contemplation  of  the  law,  and  for  all  purposes  of  legal  responsi- 
bility, he  is  in  the  employ  of  both.  The  case  cited  has  no  application. 
There  may  be  an  inferior  contract,  regulating  the  rights  of  the  parties, 
and  binding  them  to  each  other,  which  will  not  extinguish  or  alter  the 
general  obligation  which  the}'  all  owe  to  the  public. 

Yerdict  for  the  plaintiff . 

Pell,  Serjeant,  and  Es2nnasse,  for  the  plaintiflf. 

Best,  Serjeant,  for  the  defendant. 


LAUGHER  V.  POINTER. 
King's  Bench.  1826. 

[5  B.  cj-  C.  547.1  ] 

Case.  The  first  count  of  the  declaration  alleged  that  the  plaintiff 
was  possessed  of  a  horse,  and  defendant  was  possessed  of  a  carriage 
and  two  horses  harnessed  to  and  drawing  the  same,  and  which  car- 
riage and  horses  were  under  the  care,  government,  and  direction  of  a 
person,  being  the  servant  of  the  defendant  in  that  behalf,  who  was 
driving  the  same,  yet  that  the  defendant,  by  his  said  servant,  so  negli- 
gently and  improperly'  drove  and  directed  his  said  carriage  and  horses 
that  by  the  negligence  and  improper  conduct  of  the  defendant,  by  his 
said  servant,  the  carriage  ran  and  struck  against  the  plaintiff's  horse, 
&c.     The  second  count  differed  from  the  first,  onh',  by  omitting  to 

1  8.  c.  8D.  &  R.  556.  — Ed. 


106  LAUGHER   V.    POINTER.  [CHAP.  H. 

state  that  the  defendant  was  possessed  of  the  horses.  The  third  and 
last  count  alleged  that  the  defendant  was  possessed  of  a  carriage  drawn 
1)3'  two  horses  under  the  care,  government,  and  direction  of  the  defend- 
ant, yet  that  the  defendant  so  negligently  and  iuiproperl}'  drove, 
governed,  and  directed  the  carriage  and  horses  that,  b\'  the  negligence 
and  improper  conduct  of  the  defendant,  tiie  carriage  ran  and  struck 
against  the  plaintiff's  horse,  &c.  At  the  trial  before  Abbott,  C.  J.,  at 
the  London  sittings  after  Michaelmas  terra,  1823,  it  appeared  in  evi- 
dence that  tlie  defendant,  a  gentleman  usually  residing  in  the  country, 
being  in  town  for  a  few  days  with  his  own  carriage,  sent  in  the  usual 
wa}'  to  a  stable-keeper  for  a  pair  of  horses  for  a  day.  The  stable- 
keeper  accordingly  sent  the  pair  of  horses  and  a-  person  to  drive  the 
same.  The  defendant  did  not  select  the  driver,  nor  had  any  previous 
knowledge  of  him.  The  stable-keeper  sent  such  person  as  he  chose 
for  this  purpose.  The  driver  had  no  wages  from  his  master,  but 
depended  upon  receiving  a  gratuity  from  the  persons  whose  carriages 
he  drove  ;  tlie  defendant  gave  him  5s.  as  a  gratuit}-  for  his  day's  work, 
but  the  driver  had  no  power  to  demand  anything.  The  Lord  Chief 
Justice  thought  that  the  evidence  did  not  support  the  declaration,  and 
directed  a  nonsuit.  A  rule  nisi  for  a  new  trial  was  afterwards  granted, 
and  upon  the  argument,  there  being  a  difference  of  opinion  on  the 
bench,  the  case  was  directed  to  be  argued  before  the  twelve  judges,  all 
of  whom  (except  the  Lord  Chief  Baron)  met  for  that  purpose  in 
Serjeant's  Inn  Hall,  on  the  2d  of  Februarj'  1825,  when 

Tindal  showed  case  against  the  rule. 

Abraham^  contra. 

Tindal.,  in  replj'.  Cur.  adv.  vidt. 

And  now  the  Judges  not  being  agreed  in  opinion  proceeded  to  give 
judgment  seriatim. 

LiTTLEDALE,  J,  ^  In  the  course  of  driving  the  carriage,  the  coach- 
man by  his  negligent  conduct  occasioned  the  injury  ;  and  the  question 
for  the  consideration  of  the  court  is,  whether  the  defendant  be  liable. 
According  to  the  rules  of  law,  ever}'  man  is  answerable  for  injuries 
occasioned  b}'  his  own  personal  negligence  ;  and  he  is  also  answerable 
for  acts  done  by  the  negligence  of  tliose  whom  the  law  denominates  his 
servants,  because  such  servants  represent  the  master  himself,  and  their 
acts  stand  upon  the  same  footing  as  his  own.  And  in  the  present  case 
the  question  is,  whether  the  coachman,  by  whose  neglitj:ence  the  injury 
was  occasioned,  is  to  be  considered  a  servant  of  the  defendant. 

For  the  acts  of  a  man's  own  domestic  servants  there  is  no  doubt  but 
the  law  makes  him  responsible,  and  if  this  accident  had  been  occa- 
sioned by  a  coachman  who  constituted  a  part  of  the  defendant's  own 
family,  there  would  be  no  doubt  of  the  defendant's  liabiHty  ;  and  the 
reason  is,  that  he  is  hired  b}-  the  master  either  personally  or  by  those 

*  After  stating  the  case.  —  Ed. 


SECT.  II.J  LAUGHER   V.    POINTER.  107 

who  are  entrusted  b}-  the  master  with  the  hiring  of  servants,  and  he  is 
therefore  selected  by  the  master  to  do  the  business  required  of  him. 

This  rule  applies  not  onl}-  to  domestic  servants  who  may  have  the 
care  of  carriages,  horses,  and  other  things  in  the  emplo}-  of  the  family-, 
but  extends  to  other  servants  whom  the  master  or  owner  selects  and 
appoints  to  do  an}'  work  or  superintend  any  business,  although  such 
servants  be  not  in  the  immediate  employ  or  under  the  superintendence 
of  the  master.  As,  for  instance,  if  a  man  is  the  owner  of  a  ship,  he 
himself  appoints  the  master,  and  he  desires  the  master  to  appoint  and 
select  the  crew ;  the  crew  thus  become  appointed  bj'  the  owner,  and 
are  his  servants  for  the  management  and  government  of  the  ship,  and 
if  any  damage  happens  through  their  default,  it  is  the  same  as  if  it 
happened  through  the  immediate  default  of  the  owner  himself  So  the 
same  principle  prevails  if  the  owner  of  a  farm  has  it  in  his  own  hands, 
and  he  does  not  personally  interfere  in  the  management,  but  appoints  a 
bailiff  or  hind  who  hires  other  persons  under  him,  all  of  them  being  paid 
out  of  the  funds  of  the  owner,  and  selected  b}'  himself  or  b}'  a  person 
specially  deputed  by  him,  if  any  damage  happen  through  their  default 
the  owner  is  answerable,  because  their  neglect  or  default  is  his,  as 
they  are  appointed  b}'  and  through  him.  So  in  the  case  of  a  mine,  the 
owner  employs  a  steward  or  manager  to  superintend  the  working  of 
the  mine,  and  to  hire  under  workmen,  and  he  pa^s  them  on  behalf  of 
the  owner.  These  under  workmen  then  become  the  immediate  ser- 
vants of  the  owner,  and  the  owner  is  answerable  for  their  default  in 
doing  an}-  acts  on  account  of  their  employer.  This,  however,  is  not 
the  case  of  a  man  employing  his  own  immediate  servants,  either 
domestic  servants  or  others,  engaged  by  him  to  conduct  an}-  business, 
or  emplo3'ment,  or  occupation  carried  on  by  him.  For  the  jobman  was 
a  person  carrving  on  a  distinct  employment  of  his  own,  in  which  he 
furnished  men  and  let  out  horses  to  hire  to  all  such  persons  as  chose 
to  employ  him.  This  coachman  was  not  hired  to  the  defendant;  he 
had  no  power  to  dismiss  him.  He  paid  him  no  wages.  The  man  was 
only  to  drive  the  horses  of  the  jobman.  It  is  true  the  master  paid  him 
no  wages,  and  the  whole  which  he  got  was  from  the  person  who  hired 
the  horses,  but  that  was  only  a  gratuity.  It  is  the  case  with  servants 
at  inns  and  hotels.  Where  there  is  a  great  deal  of  business  they  fre- 
quently receive  no  wages  from  the  owner  of  the  inn  or  hotel,  and  trust 
entirely  to  what  they  receive  from  the  persons  who  resort  to  the  inn  or 
hotel,  and  yet  they  are  not  the  less  the  servants  of  the  innkeeper ; 
they  are  not  servants  upon  wages,  but  servants  upon  expectation  of 
gratuities.  And,  therefore,  if  the  defendant  is  in  this  case  to  be 
answerable  for  the  acts  of  the  driver  provided  by  the  jobman,  it  must 
be  upon  this  principle,  that  if  a  man  either  for  his  benefit  or  pleasure 
employs  an  agent  to  conduct  any  business,  such  agent  is  to  be  looked 
upon  in  the  same  light  as  if  he  was  the  immediate  servant  of  the 
employer,  and  that  the  owner  of  the  property  by  employing  such  an 
agent  to  transact  his  business,  confides  to  him  the  choice  of  the  undet 


l08  LAUGHER   V.   POINTER.  |_CHAP.  IL 

workmen,  and  then  the  principle  must  go  on  to  this,  that  such  agent 
and  under  workmen  are  to  be  considered  in  the  same  light  as  the  fore- 
man or  manager  of  a  person  in  conducting  his  business,  and  as  the 
workmen  selected  by  such  foreman  or  manager ;  and  that  it  makes  no 
difference  to  persons  who  receive  an  injur}-  in  what  light  the  offending 
party  stands  to  the  principal,  whether  as  an  under  workman  employed 
b}-  an  agent,  or  an  under  workman  employed  by  the  foreman  of  the 
principal.  And  that  the  onl}-  thing  to  be  looked  to  is,  whether  in  the 
end  the  principal  pays  for  the  employment  in  the  course  of  which  the 
injur}'  is  occasioned. 

But  I  think  tliat,  upon  principle,  this  rule  cannot  be  carried  so  far. 
In  Bush  V.  Steinman,  1  Bos.  &  Pul.  407,  indeed,  Mr.  Justice  Heath 
expresses  it  as  his  opinion  that  if  a  person  hires  a  coach  upon  a  job, 
and  a  job  coachman  is  sent  with  it  and  does  any  injur}',  the  hirer  of  the 
carriage  is  answerable.  That  is  certainly  entitled  to  great  weight,  as 
being  the  opinion  of  a  very  able  judge.  It  was,  however,  only  an  obiter 
dictum,  and  in  a  case  where,  like  the  present,  there  is  a  difference  of 
opinion  amongst  the  judges,  the  question  must,  if  possible,  be  deter- 
mined upon  principle  and  decided  cases.  If  a  man  charters  a  ship  for 
a  voyage  or  for  time,  and  the  master  and  mariners  are  appointed  by 
the  owner,  this  ship  is  employed  for  the  benefit  and  for  transacting  the 
business  of  the  charterer,  just  the  same  as  if  he  had  a  ship  of  his  own 
employed  in  the  same  service,  and  it  might  be  said  that  he  deputes  to 
the  owner  the  selection  of  the  master  and  mariners  ;  but  in  such  a  case 
the  law  has  never  considered  the  charterer  liable  to  third  persons  for 
the  negligence  of  the  master  and  mariners.  In  Fletcher  v.  Braddick, 
2  N.  R.  182,  the  owners  had  chartered  the  vessel  to  the  commissioners 
of  the  navy,  who  were  to  put  an  officer  on  board,  under  whose  direction 
the  master  was  to  act,  and  though  there  was  a  king's  pilot  on  board, 
yet  the  owners  were  nevertheless  held  liable  for  running  down  the 
plaintiffs  ship.  In  Nicholson  v.  Mounsey,  15  East,  384,  a  captain 
of  a  man  of  war  was  held  not  liable  for  the  default  of  the  lieutenant 
whose  watch  it  was  when  an  injury  was  committed.  Suppose  a  man 
has  a  ship  or  a  carriage  or  other  thing  to  repair,  and  he,  instead  of 
having  the  repairs  done  on  his  own  premises  and  by  his  own  servants, 
sends  it  out  to  be  repaired  by  a  person  who  exercises  the  public 
employment  under  which  it  would  be  repaired,  and  any  damage  hap- 
pens in  the  course  of  the  repair  by  the  negligence  of  the  persons 
employed  ;  these  are  employed  by  a  person  who  may  be  considered  the 
agent  of  the  principal,  and  yet  the  law  would  not  hold  the  principal 
liable.  If  a  man  hires  a  carriage  and  horses  to  travel  from  stage  to 
stage,  the  carriage  and  horses  are  employed  for  the  benefit  or  pleasure 
of  the  traveller,  instead  of  using  his  own,  which  he  may  not  do  either 
from  inability  to  keep  horses  or  a  desire  of  expedition,  and  yet  the  law 
has  never  considered  the  traveller  liable.  There  is  no  difference  in 
principle  between  a  man's  travelling  by  the  stage  or  travelling  by  the 
day.     In  one  case  and  the  other  the  traveller  is  using  the  carriage  and 


SECT.  II.]  LAUGHER   V.    POINTER.  109 

horses  for  his  benefit ;  he  pays  so  much  by  the  day  instead  of  so  much 
by  the  mile  ;  he  pays  the  coachman  a  gratuity  in  one  case,  and  the 
postilion  in  the  other  case,  and  yet  the  traveller  has  never  been  held 
liable.  As  to  this  latter  point,  there  are  some  decisions  in  point :  Sam- 
raell  V.  Wright,  5  Plsp.  2G3,  where  the  horses  were  hired  to  go  to 
Windsor,  and  the  owner  of  the  horses  was  held  liable,  because  the}' 
were  under  the  care  and  direction  of  his  servants.  The  carriage 
belonged  to  the  traveller,  who  was  the  marchioness  of  Bath.  The  case 
of  Dean  v.  Branthwaite,  5  Esp.  35,  arose  on  a  dispute  between  the 
owner  of  the  carriage  and  the  owner  of  the  horses,  which  were  hired 
to  go  to  Epsom.  Lord  EUenborough  says,  a  person  who  hires  horses 
under  such  circumstances  has  not  the  entire  management  and  power 
over  them,  but  that  they  continue  under  the  control  and  power  of  the 
stable-keeper's  servants  who  were  entrusted  with  the  driving ;  and 
that  he  would  be  answerable  for  any  accident  occasioned  b}'  the  post- 
boy's misconduct  on  the  road,  and  then  he  mentioned  a  case  which  had 
occurred  of  that  kind.  In  this  case,  also,  the  party  travelling  had  his 
own  carriage.  The  same  rule  would  apply  to  a  hackney-coach;  a  man 
instead  of  hiring  his  own  carriage  and  servants,  employs  a  hacknej-- 
man  to  drive  him  ;  there  it  is  for  the  profit  or  convenience  of  the  person 
riding  in  the  coach,  and  yet  the  person  so  riding  is  not  liable. 

The  cases  referred  to  before  Lord  EUenborough  onl}-  show,  indeed, 
the  owner  of  the  horses  to  be  liable,  but  it  may  be  said  the  traveller  is 
liable  also.  I  think  not.  The  coachman  or  postilion  cannot  be  the 
servant  of  both.  He  is  the  servant  of  one  or  the  other,  but  not  the 
servant  of  one  and  the  other;  the  law  does  not  recognize  a  several 
liabilit}'  in  two  principals  who  are  unconnected.  If  the}'  are  jointly 
liable  you  may  sue  either,  but  you  cannot  have  two  separately  liable  ; 
you  must  bring  your  action  either  against  the  principal,  or  the  person 
who  commits  the  injury.  Stone  v.  Cartwright,  6  T.  R.  411.  There  it 
was  held  that  an  action  for  an  injury  sustained  through  the  improper 
working  of  a  mine,  must  be  brought  agahist  the  owner  of  the  mine,  or 
against  the  workmen  who  did  the  injury,  but  that  it  could  not  be 
brought  against  an  agent  who  hired  the  workmen.  The  allowing  two 
principals  to  be  severally  liable  would  tend  to  a  multiplicity  of  actions, 
because  if  the  traveller  was  liable,  he  might  have  an  action  against  the 
stable-keeper  for  supplying  improper  drivers  and  horses,  and  then  the 
stable-keeper  might  have  an  action  against  his  own  drivers.  If,  indeed, 
several  persons  are  concerned  in  a  trespass,  or  other  tortious  act,  they 
are  liable  jointly  or  severally,  at  the  election  of  the  party  injured,  but 
the  several  liability  arises  from  the  joint  liability,  and  from  the  rule  of 
law  that  a  party  injured  need  not  sue  all  who  are  guilty  of  the  wrongful 
act ;  but  what  I  say  is,  that  two  persons  cannot  be  made  separately 
liable  at  the  election  of  the  party  suing,  unless  in  cases  where  they 
would  be  jointly  liable ;  and  there  cannot  be  any  ground  for  saying 
that  the  hirer  of  the  horses  and  the  jobman  would  be  jointly  liable. 
There  are,  however,  cases  which  have  been  determined  upon  princi* 


110  LAUGHER   V.   POINTER.  [CHAP.  IL 

pies  not  altogether  consonant  to  what  1  have  before  considered  are 
those  upon  which  the  liabilities  of  parties  should  be  determined,  where 
persons  have  been  held  liable  for  the  negligence  of  individuals  who 
were  not  their  own  immediate  sei'vants,  but  the  servants  of  agents 
whom  the}'  had  employed  to  do  their  work.^  .  .  . 

But  supposing  these  cases  to  be  rightl}'  decided,  there  is  this  mate- 
rial distinction,  that  there  the  injury  was  done  upon  or  near  and  in 
respect  of  the  property  of  the  defendants,  of  which  they  were  in  pos- 
session at  the  time.  And  the  rule  of  law  ma}'  be  that  in  all  cases 
where  a  man  is  in  possession  of  fixed  property  he  must  take  care  that 
his  property  is  so  used  and  managed  that  other  persons  are  not  injured, 
and  that,  whether  his  property  be  managed  by  his  own  immediate  ser- 
vants or  by  contractors  or  their  servants.  The  injuries  done  upon 
land  or  buildings  are  in  the  nature  of  nuisances,  for  which  the  occupier 
ought  to  be  chargeable  when  occasioned  by  anj'  acts  of  persons  whom 
he  brings  upon  the  premises.  The  use  of  the  premises  is  confined  by 
the  law  to  himself,  and  he  should  take  care  not  to  bring  persons  there 
who  do  an\'  mischief  to  others.^  ....  It  may  be  said  that  the  defend- 
ant in  the  present  case  was  owner  of  the  carriage,  and  that  therefore 
the  principles  of  these  latter  cases  apply  ;  but,  admitting  these  cases,  the 
same  principle  does  not  apply  to  personal  movable  chattels  as  to 
the  permanent  use  and  enjoyment  of  land  or  houses.  Houses  and  land 
come  under  the  fixed  use  and  enjoyment  of  a  man  for  his  regular  occu- 
pation and  enjo3'ment  in  life ;  the  law  compels  him  to  take  care  that 
no  persons  come  about  his  premises  who  occasion  injur}'  to  others. 
The  use  of  a  personal  chattel  is  merely  a  temporary  thing,  the  enjoy- 
ment of  which  is,  in  many  cases,  trusted  to  the  care  and  direction  of 
persons  exercising  public  employments,  and  the  mere  possession  of 
that,  where  the  care  and  direction  of  it  is  entrusted  to  such  persons, 
who  exercise  public  employments,  and  in  virtue  of  that  furnish  and 
provide  the  means  of  using  it,  is  not  sufficient  to  render  the  owner 
liable.  Movable  property  is  sent  out  into  the  world  by  the  owner  to 
be  conducted  by  other  persons  :  the  common  intercourse  of  mankind 
does  not  make  a  man  or  his  own  servants  always  accompany  his  own 
property  ;  he  must  in  many  cases  confide  the  care  of  it  to  others  who 
are  not  his  own  servants,  but  whose  employment  it  is  to  attend  to  it. 
And  in  the  instances  of  various  kinds  of  carriages,  they  are  frequently, 
in  the  common  intercourse  of  the  world,  confided  to  the  care  of  persons 
who  provide  the  drivers  and  horses,  and  it  is  not  considered  that  the 
drivers  necessarily  belong  to  the  owner  of  the  carriage.  And  I  think 
that  there  cannot  be  any  difference,  in  point  of  law,  as  to  the  liabilities 
of  these  persons  arising  from  the  mere  ownership  of  the  carriage,  and 
that  the  ownership  of  the  carriage  makes  him  no  more  responsible 
than  it  would  do  if  it  had  been  sent  to  be  repaired  by  a  coachmaker 

1  Here  Bush  v.  Steinman,  ante,  p.  98,  and  Sly  v.  Edgley,  6  Esp.  6,  were  stated.  —  Ed. 

2  Here  Littledale  v.  Lord  Lonsdale,  2  H.  Bl.  299,  and  Leslie  v.  Pounds,  4  Taunt 
649.  were  stated.  —  Ed. 


SECT.  II.]  LAUGHER   V.   POINTEK.  lH 

who,  in  the  course  of  repair,  had  occasioned  any  damage  to  other  per- 
sons ;  but  if  the  injury  arises  from  the  driver,  it  is  he,  or  the  person 
who  appoints  him,  that  is  to  be  responsible.  It  ma}-  be  said  that, 
according  to  this  doctrine,  a  person  wlio  liired  job-liorses  and  a  coach- 
man for  a  year  would  not  be  answerable  for  the  negligence  of  the 
coachman  ;  if  the  coachman  remain  the  mere  servant  of  the  jobman, 
not  otherwise  employed  in  the  service  of  the  hirer,  1  think  the  hirer 
would  not  be  liable  for  whatever  time  he  hired  the  coachman  and 
horses ;  but  where  the  coachman  is  hired  for  a  year,  it  will  verj'  often 
happen  that  he  is  em[)loyed  in  other  services  besides  the  mere  atten- 
tion to  the  coach  and  horses  ;  and  if,  by  such  circumstances,  he  be- 
comes the  servant  of  the  hirer,  besides  being  the  servant  of  the  jobman, 
the  case  might  then  admit  of  a  different  consideration.  In  Chilcot  v. 
Bromley,  12  Ves.  114,  testator  bequeathed  to  all  his  servants  £500 
each  ;  and  it  was  held,  that  a  coachman  supplied  by  a  jobmaster, 
together  with  a  carriage  and  horses  which  were  hired  by  the  3'ear,  was 
not  entitled  to  be  considered  a  servant. 

This,  however,  is  not  the  case  of  a  servant  employed  for  a  year  or  a 
month,  and  upon  the  whole  of  the  circumstances  of  this  case,  I  am  of 
opinion  that  this  defendant  is  not  liable  for  the  damage  that  has 
occurred,  and  that  the  rule  for  setting  aside  the  nonsuit  should  be 
discharged. 

There  are  man}'  cases  where  questions  have  arisen  upon  the  liabilities 
of  postmasters,  of  captains  of  ships  of  war,  and  of  owners  of  ships  who 
have  taken  pilots,  and  of  factors  who  have  acted  for  their  principals, 
and  others,  as  to  what  degree  of  possession  is  kept  by  the  owner. 
These  I  have  not  thought  it  necessary  to  notice,  because  I  think  the 
sole  question  here  is,  whether  if  a  man  employs  another  to  do  work 
respecting  personal  movable  property,  and  that  other  furnishes  a  ser- 
vant, that  servant  is  to  be  considered  in  the  same  light  as  a  servant 
appointed  by  the  person  himself. 

HoLROYD,  J.^  It  was  contended  in  the  argument,  not  only  that  the 
defendant  was  not  responsible  for  the  driver,  but  that  the  plaintiff 
could  not  recover  on  this  declaration,  each  count  of  which  contained  as 
a  material  allegation  that  the  act  was  done  by  the  defendant's  servant, 
whereas  the  driver  could  not  be  considered  as  his  servant.  But  my 
mind  has  come  to  the  conclusion,  that  the  defendant  is  responsible  for 
the  driver's  negligence,  and  responsible  too  upon  this  declaration,  the 
driver  being  to  be  considered,  in  my  opinion,  for  this  purpose,  as,  in 
law,  his  servant.  It  appears  to  me  that  the  defendant  stands  in  the 
same  situation  of  responsibility  as  if  the  horses  had  been  driven  by 
Bryant  himself,  or  as  if  they  had  been  driven  by  a  person  chosen  by 
the  defendant  himself,  for  the  driving  is  equally  under  the  authority 
and  orders  of  the  defendant,  and  equally  for  his  profit,  benefit,  or 
pleasure,  and  the  driver  is,  I  think,  equally  the  defendant's  servant  for 

^  After  stating  the  case.  —  Ed. 


112  LAUGHER   V.   POINTER.  [CHAP.  II 

that  purpose,  whether  the  driver  be  Bryant  himself,  the  person  directly 
hired  and  employed  by  the  defendant,  or  be  another  person  selected 
and  appointed  by  the  defendant  himself,  or  a  person  selected  and 
appointed  bj'  Bryant  under  the  authority  or  permission  of  the  defend- 
ant. The  question  is  not  whether  Brjant,  as  the  owner  of  the  horses 
and  the  immediate  master  of  the  driver,  might  or  might  not  have  been 
made  responsible  for  the  driver's  negligence,  nor  is  this  the  case  of  a 
letting  for  a  particular  purpose  onl}',  such  as  going  to  a  particular 
place,  as  in  Dean  v.  Branthwaite,  5  Esp.  35,  and  Sammell  v.  Wright, 
5  Esp.  263,  where  the  hirer  was  considered  not  to  have  the  entire 
management  and  control  over  the  things  so  hired ;  from  which  cases 
the  present  is  distinguishable,  because  the  present  hiring  was  for  no 
such  particular  purpose,  but  to  go  with  the  carriage  where  the  defend- 
ant chose,  and  to  be  under  his  general  authority  and  orders  in  that 
respect  for  a  certain  time  By  such  a  letting  for  a  certain  time  the 
defendant  became  possessed  in  law  of  the  horses  so  let  to  him  while 
he  was  using  them  under  such  letting.  It  would  be  so  clearl}',  if 
they  had  not  been  retained  in  the  custody  of  a  driver  provided  by 
Bryant,  according  to  the  doctrine  of  Lord  EUenborough  in  Lotan 
V.  Cross,  2  Camp.  464,  where  he  says,  "show  a  letting"  (sc.  of 
the  chaise)  "  for  a  certain  time  to  Brown,  and  the  possession  would 
be  in  him ;  "  and  in  Hall  v.  Pickard,  3  Camp.  187,  where  by  the 
horses  being  let  to  hire  to  Dr.  Carey  for  a  certain  term,  he,  and  not 
the  owner,  was  deemed  to  be  the  person  in  possession  of  them,  as 
he.  Dr.  Carey,  had  a  right  to  retain  them  till  that  time  was  expired, 
though  in  that  case  indeed  Dr.  Carej'  is  stated  to  have  been  driving 
them  by  his  own  servants  when  the  mischief  was  done.  But  in  the 
present  case,  although  the  horses  were  continued  in  the  custod}'  of  a 
driver  provided  by  Bryant,  jet  as  the  horses  and  the  driver  were  to  be 
for  the  use  and  subject  to  the  general  directions  of  the  defendant,  and 
as  the  defendant  had  a  right  to  retain  them  till  the  time  for  which  they 
were  hired  was  expired,  and  as  they  were  at  the  time  the  mischief  was 
done  in  the  use  and  under  the  directions  of  the  defendant,  I  think  that 
the  driver  was  for  this  purpose  in  the  employ,  and  in  law,  the  servant 
of  the  defendant,  and  that  the  defendant  was  in  law  answerable  for  the 
driver's  negligence  in  the  execution  of  the  defendant's  orders  in  such 
eraplo}',  in  whatever  situation  the  driver  might  also  stand  with  respect 
to  Bryant,  with  regard  to  Brj'ant's  responsibility  for  him,  at  the  elec- 
tion of  the  plaintiff.  A  person  ma}'  stand  in  the  relation  of  servant  to 
two  different  persons  as  his  masters  in  two  different  respects  with 
regard  to  the  same  thing,  and  this  even  though  the  service  done,  or 
to  be  done,  be  special  and  limited  to  a  single  act,  as  appears  in  2 
Eolle's  Abr.  556,  pi.  14.  .  .  .  So  in  the  present  case,  I  think  the 
horses  were  to  be  considered  in  law  as  in  the  possession  of  the  defend- 
ant,  and  the  driver  as  the  defendant's  servant,  for  the  purpose  for 
which  he  was  sent  to  the  defendant ;  and  I  think  that  a  taking  of  the 
horses  or  driver  awav  from  the  defendant's  service  during  the  time  for 


SECT.  II.]  LAUGHER   V.    POINTER.  113 

which  he  had  hired  them,  would  have  been  a  taking  them  away  from 
liim,  for  which  he  might  have  maintained  an  action  of  trespass,  as  for  a 
taking  them  out  of  his  possesssion  and  service  ;  and,  consequentU', 
that  he  was  answerable  for  the  driver's  negligence  in  driving  him,  the 
defendant,  while  under  his,  the  defendant's,  orders,  and  it  is  to  be  con- 
sidered, I  think,  as  the  defendant's  driving  of  the  carriage  and  horses 
by  his  servant.^  .  .  . 

Bayley,  J.  The  question  in  this  case  is,  whether  the  owner  of  the 
carriage  is  answerable  for  the  negligence  of  the  driver.  This  is  not 
the  case  of  a  driver,  where,  according  to  established  usage,  carriage 
and  horses  and  driver  belong,  not  to  the  person  driven,  but  to  another 
master,  who  may  easily  be  discovered,  as  in  the  case  of  a  hackney- 
coach  ;  nor  is  it  the  case  of  a  driver,  where,  according  to  established 
usage,  neither  horses  or  driver  belong  to  or  are  commonly  in  the  ser- 
vice of  the  person  driven,  but  belong  to  another  master,  who  is  either 
known  or  may  easil}'  be  discovered,  as  in  the  case  of  post  horses ;  but 
it  is  the  case  of  a  person  who  hires  a  pair  of  horses  for  the  day  to  draw 
his  own  carriage,  and  leaves  it  to  the  owner  of  the  horses  to  send  such 
person  to  drive  them  as  such  owner  may  think  fit.  There  is  nothing 
from  usage  or  otherwise  to  impl}'  that  the  horses  are  not  the  defendant's 
and  the  driver  his  regular  servant ;  nothing  to  designate  or  to  make  it 
easy  to  discover  to  whom  the  horses  and  driver  belong.  The  general 
rule  in  the  case  of  master  and  servant,  as  laid  down  in  Boson  v.  Sand- 
ford,  2  Salk.  440,  is,  that  the  man  who  employs  another  is  answerable 
for  him.  Had  the  defendant  hired  the  driver,  can  there  be  a  doubt  but 
that  he  would  have  been  defendant's  servant?  If  he  leaves  it  to  the 
owner  of  the  horses  to  hire  him,  is  he  not,  in  substance,  hired  b>-  the 
defendant?  If  I  hire  horses  of  A.  and  hire  B.  to  drive,  B.  is  undoubt- 
edly, for  the  time,  my  servant.  Is  the  driver  less  my  servant  fOr  the 
time,  because  I  hire  him  and  the  horses  under  one  bargain,  and  allow 
the  owner  of  the  horses  to  select  him?  He  is  employed  for  me;  that 
cannot  be  disputed.  He  drives  where  I  direct,  and  so  as  I  require 
nothing  contrary  to  ni}'  contract  with  the  owner  of  the  horses,  he  must 
obey  my  reasonable  commands.  He  must  go  where  I  order ;  must 
stop  where  I  require  ;  must  go  the  pace  I  specif}'.  Though  the  owner 
of  the  horses  is,  to  a  certain  extent,  his  master,  I  am,  to  a  certain 
extent,  his  master  also.  Though  the  former  is  his  master  in  general, 
he  has,  for  a  time,  let  him  out  to  me ;  and  a  master  is  liable  for  the 
acts  of  one  who  is  in  his  service  or  emplo}-,  though  the  master  who  is 
to  be  charged  is  not  his  immediate  employer,  but  employs  him  through 
the  medium  of  another.  If  I  hire  the  driver,  I  am  answerable  for  him ; 
if  I  employ  J.  S.  to  hire  him,  am  I  not  still  answerable?  I  exercise 
my  own  judgment  in  the  one  case,  I  leave  it  to  J.  S.  to  exercise  a  judg- 
ment for  me  in  the  other,  but  still  it  is  for  me  that  the  judgment  is 
exercised.     The  service  is  performed  for  me.     It  is  my  work  the  driver 

*  Here  Bush  v.  Steiuinau,  ante,  p.  98,  was  stated.  — Ed. 
8 


114  LAUGHER   V.    POINTER.  [CHAP.  IL 

does.  In  Bush  v.  Steinraan,  1  Bos.  &  P.  404,  the  man  who  did  the 
wrong  was  not  selected  by  the  defendant,  was  not  immediately  employed 
by  him,  he  was  only  employed  through  the  medium  of  one  who  con- 
tracted to  do  the  work  for  the  defendant,  but  he  was  doing  the  defend- 
ant's work.  He  was  (through  the  medium  of  the  contractor  indeed, 
but  still  he  was)  working  for  the  defendant,  and  on  that  account  the 
defendant  was  held  liable.  "  If  a  deputy  has  power  to  make  servants, 
the  principal  will  be  chargeable  for  their  misfeasance,  for  the  act  of  the 
servant  is  the  act  of  the  deputy,  and  tlie  act  of  the  deput}-  is  the  act  of 
the  principal."  Per  Holt,  C.  J.  in  Lane  v.  Cotton,  1  Ld.  Raym.  656. 
The  owner  of  a  ship  is  answerable  for  the  misfeasance  of  mariners, 
though  he  leaves  it  to  the  master  to  select  the  crew.  The  owners  of  a 
coach  will  be  liable,  though  the}'  leave  it  to  J.  S.  to  select  the  driver 
and  horses,  or  though  the}'^  employ  as  driver  the  man  who  owns  the 
horses.  In  man}-  instances  one  proprietor  horses  a  coach  for  one 
stage,  another  for  a  second,  and  so  on,  and  in  some  instances  the  man 
who  finds  the  horses  finds  the  coachman  also.  Shall  this  take  away 
the  liability  of  all  the  proprietors?  Shall  it  be  said,  if  the  coach  does 
an  injury  upon  a  given  stage,  that  the  proprietor  who  finds  the  horses 
and  driver  for  that  stage  shall  alone  be  answerable?  The  horses  and 
driver  are  found  by  the  one  to  do  the  work  of  all,  the}-  are  employed 
upon  the  work  and  for  the  benefit  of  all,  and  therefore  all  are  respon- 
sible. Nor  does  it  appear  to  me  to  make  an}'  distinction  whether  the 
driver  and  horses  are  hired  for  a  single  day  only,  or  for  a  longer  period. 
Had  they  been  hired  by  the  year,  can  there  be  a  doubt  but  that  the 
hirer  would  have  been  answerable?  What  if  they  had  been  hired  for  a 
month,  or  for  a  week?  Would  the  difference  of  period  for  which  they 
were  hired  make  a  difference  in  the  responsibility  ?  Can  any  legal  princi- 
ple be  adduced  to  make  the  period  the  criterion  of  being  answerable  or 
not?  The  driver  is  equally  employed  on  account  of  the  hirer,  to  do  the 
work  of  the  hirer,  to  obey  the  lawful  commands  of  the  hirer,  and  to  be 
the  temporary  servant  of  the  hirer,  whether  he  is  engaged  for  the  day, 
the  week,  the  month,  or  the  year,  and  the  hirer  bears  the  appearance  for 
the  time  of  standing  in  the  relation  of  master  to  the  driver,  and  these 
are  circumstances  which  in  my  judgment  make  the  hirer  responsible. 
Upon  these  grounds,  therefore,  that  the  driver  in  this  case  was  in  the 
temporary  employ  and  service  of  the  defendant,  and  that  this  is  not  a 
case  in  which  according  to  the  known  and  established  course  of  pro- 
ceeding, it  is  notorious  that  the  person  driven  does  not  stand  in  rela- 
tion of  master  to  the  driver,  and  it  is  matter  of  easy  discovery  who 
does  stand  in  that  relation,  as  in  the  case  of  hackney-coaches  and  post 
horses ;  and  that  there  was  nothing  in  this  case  to  rebut  the  2)rhnd 
facie  pi-esumption  that  the  horses  were  the  defendant's,  and  the  driver 
his  servant,  I  am  of  opinion  that  this  defendant  was  liable  to  the  action, 
and  that  the  nonsuit  was  wrong. 

Abbott,  C.  J.^     Having  made  these  remarks  upon  the  former  cases. 

1  After  reviewing  the  decisions.  —  Ed. 


SECT.  II.]  LAUGHER  V.   POINTER.  115 

I  will  now  proceed  to  make  some  observations  upon  the  case  as  it 
might  stand  independent  of  prior  decisions.  I  admit  the  principle 
that  a  man  is  answerable  for  the  conduct  of  his  servants  in  mutters 
done  by  them  in  the  exercise  of  the  authority  that  he  has  given  to  them, 
and  also  (which  is  the  same  thing  in  other  words)  that  whatever  is 
done  by  his  authority  is  to  be  considered  as  done  by  him.  I  am  sensi- 
ble of  the  didiculty  of  drawing  any  precise  or  definite  line  as  to  time  or 
distance.  But  I  must  own  that  I  cannot  perceive  any  substantial 
difference  between  hiring  a  pair  of  horses  to  draw  my  carriage  about 
London  for  a  day,  and  hiring  them  to  draw  it  for  a  stage  on  the 
road  I  am  travelling,  the  driver  being  in  both  cases  furnished  by  the 
owner  of  the  horses  in  the  usual  way  ;  nor  can  I  feel  any  substantial 
difference  between  hiring  the  horses  to  draw  my  own  carriage  on  these 
occasions,  and  hiring  a  carriage  with  them  of  their  owner.  If  the 
hirer  be  answerable  in  the  present  case,  I  would  ask  on  what  principle 
can  it  be  said  that  he  shall  not  be  answerable  if  he  hires  for  an  hour  or 
for  a  mile?  He  has  the  use  and  benefit  pro  tempore,  not  less  in  the 
one  case  than  in  the  other.  If  the  hirer  is  to  be  answerable  when  he 
hires  the  horses  only,  why  should  he  not  be  answera!)le  if  he  hires  the 
carriage  with  them?  He  has  the  equal  use  and  benefit  of  the  horses  in 
both  cases,  and  has  not  the  conduct  or  management  of  them  more  in 
the  one  case  than  in  the  other.  If  the  teujporarj-  use  and  benefit  of 
the  horses  will  make  tlie  hirer  answerable,  and  there  be  no  reasonable 
distinction  between  hiring  them  with  or  without  a  carriage,  must  not 
the  person  who  hires  a  hackney-coach  to  take  him  for  a  mile,  or  other 
greater  or  less  distance,  or  for  an  hour,  or  longer  time,  be  answerable 
for  the  conduct  of  the  coachman?  Must  not  the  person  who  hires  a 
wherr\'  on  the  Thames  be  ausw^erable  for  the  conduct  of  the  waterman? 
I  believe  the  common  sense  of  all  men  would  be  shocked  if  any  one 
should  affirm  the  hirer  to  be  answerable  in  either  of  these  cases.  ATill 
it  be  said  that  the  hirer  is  not  answerable  in  either  of  these  cases 
because  the  coachman  and  the  wherryman  are  read}'  to  attend  to  the 
call  of  any  person  who  will  emploj-  them?  I  answ^er,  so,  also,  is  the 
stable-keeper.  If  it  be  said  that  they  are  obliged  to  obe}'  the  call  of 
anj-  person  when  they  are  on  the  stand,  or  at  the  stairs,  I  would  ask. 
Will  there  be  any  difference  if  the}'  are  spoken  to  beforehand,  and 
desired  to  attend  at  a  particular  hour?  which  is  not  an  unusual  occur- 
rence where  persons  have  an  engagement  to  go  out  at  an  early  hour  in 
the  morning.  If  the  personal  presence  of  the  hirer  will  render  him 
responsible,  why  should  he  not  be  equallv  so  if  he  is  absent,  and  has* 
hired  the  horses  or  carriage  for  his  family  or  servants?  Does  his 
presence  give  him  an}'  means  of  superintending  or  controlling  the 
driver?  Can  any  legal  obligation  depend  upon  such  minute  distinc- 
tions? If  the  case  of  a  whei'ry  on  the  Thames  does  not  furnish  an 
analogy  to  this  subject,  let  me  put  the  case  of  a  ship  hired  and  chartered 
for  a  voyage  on  the  ocean  to  carry  such  goods  as  the  charterer  may 
think  fit  to  load,  and  such  only.     Many  accidents  have  occurred  from 


116  LAUGHER    V.    POINTER.  [CHAP.  II. 

the  negligent  management  of  such  vessels,  and  man}'  actions  have  been 
brought  against  their  owners,  but  I  am  not  aware  that  any  has  ever 
been  brought  against  the  charterer,  thougli  he  is  to  some  purposes  the 
dominus  pro  tempore,  and  the  voyage  is  made  not  less  under  his 
emploj-ment,  and  for  his  benefit,  whether  he  be  on  board  or  not,  than 
the  journe}-  is  made  under  the  employment,  and  for  the  benefit  of  the 
hirer  of  the  horses.  Wh}',  then,  has  the  charterer  of  the  ship,  or  the 
hirer  of  the  wherry,  or  the  hackney-coach,  never  been  thought  answer- 
able ?  I  answer.  Because  the  shipmaster,  the  wherryman,  and  the 
hackney-coachman  have  never  been  deemed  the  servants  of  the  hirer, 
although  the  hirer  does  contract  with  the  wherryman  and  the  coach- 
man, and  is  bound  to  pa}*  them,  and  the  pay  is  not  for  the  use  of  the 
boat,  or  horses,  or  carriage  onlj',  but  also  for  the  personal  service  of 
the  man.  In  the  case  now  before  the  court,  the  hirer  makes  no  con- 
tract with  the  coachman  ;  he  does  not  select  him  ;  he  has  no  privity 
with  him  ;  he  usually-  gives  him  a  gratuity,  but  he  is  not  by  law  obliged 
to  give  him  anything ;  and  from  thence  I  conclude  that  the  coachman 
is  not  the  servant  of  the  hirer.  And  if  the  coachman  is  not  the  ser- 
vant of  the  hirer  on  such  an  occasion,  but  is  chosen  and  entrusted  bj' 
the  owner  of  the  horses  to  conduct  and  manage  them,  I  think  it  cannot 
be  said  that  the  hirer  has  in  law,  what  he  certainlj'  has  not  in  fact,  the 
conduct  and  management  of  the  horses.  If  the  coachman  is  in  such 
a  case  the  servant  of  the  hirer,  he  maj',  at  anj'  moment,  require  him  to 
quit  the  charge  of  the  horses,  and  deliver  them  over  to  another,  and 
must  be  obej-ed  ;  but  I  think  it  cannot  be  said  that  the  coachman  may 
not  lawfully  refuse,  and  ought  not  in  most  cases  to  do  so.  It  does  not 
seem  to  be  doubted  that  the  injured  party  maj'  sue  the  owner  of  the 
horses  ;  is  there,  then,  an}'  rule  of  law,  or  any  principle  of  convenience, 
requiring  that  he  should  have  his  choice  of  suing  either  the  stable- 
keeper  or  the  hirer  at  his  election.  Generally  speaking,  the  one  is  as 
well  able  to  pay  damages  as  the  other,  and  may  be  as  easily  found 
out  and  known,  and  more  easily  if  the  carriage  and  hoi'ses  are  hired 
together.  Should  the  hirer  be  held  responsible  in  the  first  instance,  he 
must  certainly  have  his  remedy  over  against  the  letter,  so  that  the 
letter  will  in  the  end  be  answerable,  and  there  will  be  a  circuity  of 
action,  which  is  inconvenient,  and  to  be  avoided  if  possible. 

I  have  acknowledged  the  difficulty  of  drawing  a  line  with  reference 
to  time  or  distance  ;  and  I  think  we  must  look  to  other  circumstances 
in  order  to  ascertain  the  obligation  of  the  hirer.  Length  of  time  may 
in  itself  be  a  circumstance  deserving  of  attention,  because  it  may  be 
evidence  of  the  subsequent  approbation  and  continuance,  if  not  of  the 
original  choice  of  the  coachman.  The  payment  of  board  wages  and 
the  furnishing  a  livery  may  also  be  circumstances  worthy  of  attention, 
because  they  also  may  in  some  cases  be  considered  as  evidence  of  a 
choice  and  a  contract.  I  do  not  pronounce  upon  any  case  of  this  kind. 
I  speak  only  of  the  present  case,  and  of  the  evidence  given  at  the 
trial ;  and  not  being  able  to  find  any  reason  satisfactory  to  my  own 


SECr.  1 1.  J  JOEL  V.   MORISON.  117 

mind,  by  which  the  defendant  in  this  cause  can  be  made  answerable  in 
the  present  action,  1  lliink  myself  bound  to  say  tliat,  in  my  opinion, 
the  rule  I'or  setting  aside  the  nonsuit  ought  to  be  discharged. 

Mule  discharged. 


JOEL   V.   MORISON. 

Nisi  Prius.     1834. 

[6  C.  S,'  P.  501.] 

The  declaration  stated,  that,  on  tlie  18th  of  April,  1833,  the  plaintiff 
was  proceeding  on  loot  across  a  certain  public  and  common  higlnva}-, 
and  tliat  the  defendant  was  possessed  of  a  cart  and  horse,  which  were 
under  the  care,  government,  and  direction  of  a  servant  of  his,  who  was 
driving  the  same  along  the  said  highway,  and  that  the  defendant  by  his 
said  servant  so  carelessly,  negligently,  and  improperly  drove,  governed, 
and  directed  the  said  horse  and  cart,  tliat,  by  the  carelessness,  negli- 
gence, and  improper  conduct  of  the  defendant  by  his  servant,  the  cart 
and  horse  were  driven  against  the  plaintiff,  and  struck  him,  whereby  he 
was  thrown  down  and  tlie  bone  of  one  of  his  legs  was  fractured,  and  he 
was  ill  in  consequence,  and  prevented  from  transacting  his  business, 
and  obliged  to  incur  a  great  expense  in  and  about  the  setting  the  said 
bone,  &c.,  and  a  further  great  expense  in  retaining  and  employing 
divers  persons  to  superintend  and  look  after  his  business  for  six  calen- 
dar months.     Plea  —  Not  guilty. 

From  the  evidence  on  the  part  of  the  plaintiff  it  appeared  that  he 
was  in  Bishopsgate  Street,  when  he  was  knocked  down  by  a  cart  and 
horse  coming  in  the  direction  from  Shoreditch,  which  were  sworn  to 
have  been  driven  at  the  time  by  a  person  who  was  the  servant  of  the 
defendant,  another  of  his  servants  being  in  the  cart  with  him.  The 
injur}'  was  a  fracture  of  the  fibula. 

On  the  part  of  the  defendant,  witnesses  were  called  who  swore  that 
his  cart  was,  for  weeks  before  and  after  the  time  sworn  to  by  the  plain- 
tiff's witnesses,  only  in  the  habit  of  being  driven  between  Burton 
Crescent  Mews  and  Finchley,  and  did  not  go  into  the  city  at  all. 

Thesiger,  for  the  plaintiff,  in  reply,  suggested  that  either  the  defend- 
ant's servants  might  in  coming  from  Finchley  have  gone  out  of  their 
way  for  their  own  purposes,  or  might  have  taken  the  cart  at  a  time 
when  it  was  not  wanted  for  the  purpose  of  business,  and  have  gone  to 
pay  a  visit  to  some  friend.  He  was  observing  that,  under  these  circum- 
stances, the  defendant  was  liable  for  the  acts  of  his  servants. 

Parke,  B.  He  is  not  liable  if,  as  you  suggest,  these  young  men 
took  the  cart  without  leave  ;  he  is  liable  if  they  were  going  extra  viam 
in  going  from  Burton  Crescent  Mews  to  Finchley  ;  but  if  they  chose  to 
go  of  their  own  accord  to  see  a  friend,  when  the}'  were  not  on  theil 
master's  business,  he  is  not  liable. 


118  WRIGHT   V.   WILCOX.  [CHAP.  IL 

His  Lordship  afterwards,  in  summing  up,  said  :  This  is  an  action  to 
recover  damages  for  an  injury  sustained  by  the  plaintiff,  in  consequence 
of  the  negligence  of  the  defendant's  servant.  There  is  no  doubt  that 
the  phxintiff  has  suffered  the  injury,  and  there  is  no  doubt  that  the 
driver  of  the  cart  was  guilt}'  of  negligence,  and  there  is  no  doubt  also 
that  the  master,  if  that  person  was  driving  the  cart  on  his  master's 
business,  is  responsible.  If  the  servants,  being  on  their  master's  busi- 
ness, took  a  detour  to  call  upon  a  friend,  the  master  will  be  responsible. 

If  you  think  the  servants  lent  the  cart  to  a  person  who  was  driving 
without  the  defendant's  knowledge,  he  will  not  be  responsible.  Or,  if 
you  think  that  the  young  man  who  was  driving  took  the  cart  surrepti- 
tiouslj',  and  was  not  at  the  time  employed  on  his  master's  business,  the 
defendant  will  not  be  liable.  The  master  is  only  liable  where  the  ser- 
vant is  acting  in  the  course  of  his  employment.  If  he  was  going  out 
of  his  wa}',  against  his  master's  implied  commands,  when  driving  on 
his  master's  business,  he  will  make  his  master  lialile  ;  but  if  he  was 
going  on  a  frolic  of  his  own,  without  being  at  all  on  his  master's  busi- 
ness, the  master  will  not  be  liable.  As  to  damages,  the  master  is  not 
guilty  of  an}'  offence,  he  is  onl}'  responsible  in  law,  therefore  the  amount 
should  be  reasonable. 

Verdict  for  the  plaintiff —  damages,  £30.* 

Thesiger  and  S.  Martin,  for  the  plaintiff. 

Platt^  for  the  defendant. 


WRIGHT  V.   J.   AND   S.    WILCOX. 
Supreme  Court  of  New  York.     1838. 

[19  Wend.  343.] 

This  was  an  action  on  the  case,  tried  at  the  Cayuga  circuit,  in  Octo- 
ber, 1836,  before  the  Hon.  Daniel  Moskley,  one  of  the  circuit  judges. 

The  suit  was  brought  for  an  injury  sustained  by  tlie  son  of  the  plain- 
tiff, who  was  a  minor,  in  being  run  over  by  a  wagon  driven  b}'  S. 
Wilcox,  the  son  of  J.  Wilcox,  whilst  in  the  employment  of  the  father. 
Tiie  plaintiff's  son  was  a  ver}'  young  lad,  and  on  his  wav  to  school 
asked  S.  Wilcox  to  permit  him  to  ride  ;  who  answered  that  he  might 
do  so  when  be  got  up  a  hill  which  he  was  then  ascending.  When  the 
hill  was  ascended,  the  lad  took  hold  of  the  side  of  the  wagon  between 
the  front  and  hind  wheels.  S.  Wilcox  did  not  stop  his  team.  He  was 
cautioned  by  a  bystander  that  if  he  did  not  stop  he  would  kill  the  bo}'. 
He  looked  behind  him;  the  horses  were  then  walking;  and  seeing  the 
plaintiff's  son  and  other  boys  attempting  to  get  on  the  wagon,  he 
cracked  his  whip  and  put  the  horses  upon  a  trot.     The  plaintifi's  son 

^  Compare  Rayner  v.  Mitchell,  2  C.  P.  D.  357  (1877).  —  Ed. 


SECT.  II.]  WRIGHT   V.   WILCOX.  119 

fell,  and  one  of  the  hind  wheels  passed  over  him,  and  greatly  injured 
him.  A  joint  action  was  brought  against  the  defendants.  A  motion 
was  made  for  a  nonsuit,  which  was  denied.  The  judge  charged  the 
jury  that  both  defendants  were  answerable,  whether  the  injury  was 
wilful,  or  only  attributable  to  negligence.  The  jury  found  a  verdict  for 
the  plaintiff  against  both  defendants,  with  one  hundred  and  nine  dollars 
damages.     A  motion  was  made  for  a  new  trial. 

J.  Williams  and  S.  Stevens^  for  the  defendants. 

M.  T.  Reynolds^  for  the  plaintiff. 

By  the  Court,  Cowen,  J.  In  a  case  of  strict  negligence  by  a  ser- 
vant while  employed  in  the  service  of  his  master,  I  see  no  reason  why 
an  action  will  not  lie  against  both  jointly.  They  are  both  guilty  of  the 
same  negligence  at  the  same  time,  and  under  the  same  circumstances  ; 
the  servant  in  fact,  and  the  master  constructively,  b}-  the  servant, 
his  agent.  Mr.  Hammond  lays  down  the  rule  in  this  way  :  "  Whether 
the  principal  and  inferior  may  be  charged  jointly  depends  on  whether 
the  inferior  is  liable  as  a  trespasser  vi  et  armis,  or  in  case  only.  If  the 
latter,  they  may  be  sued  together,  but  otherwise  if  the  former ;  it  being 
held,  how  justly  ma}-  be  questioned,  that  a  principal  is  liable  for  his 
agent's  misconduct  only  in  case."  Ham.  on  Part,  to  Actions,  85,  86. 
The  rule  is  in  the  main  doubtless  right,  but  seems  to  be  shaken  b}' 
Moreton  v.  Hardern,  6  Dowl.  and  Ryl.  275,  in  respect  to  the  quality  of 
the  servant's  act.  There  were,  in  that  case,  three  proprietors  of  a 
coach  ;  one  was  driving,  and  ran  against  tlie  plaintiff's  cart.  All  three 
were  sued  in  case  ;  and  several  judges  thought  either  trespass  or  case 
would  lie  against  the  driver,  though  the  mischief  arose  from  mere  neg- 
ligence ;  but  all  agreed  that  case  onl}'  would  lie  against  the  other  two 
who  were  absent ;  j'et  the  action  was  maintained  against  all  three. 

But  it  is  impossible  to  sustain  this  verdict  against  the  father.  It 
is  difficult  to  infer  from  the  evidence  anything  short  of  a  design  in 
Stephen  the  servant  to  throw  the  plaintiff's  boy  from  the  wagon;  and 
the  judge,  as  I  understand  the  charge,  told  the  jur}'  that  the  defendants 
were  jointly  liable  in  that  view.  If  Stephen,  in  whipping  the  horses, 
acted  with  the  wilful  intention  to  throw  the  plaintiff's  boy  off,  it  was  a 
plain  trespass,  and  nothing  but  a  trespass,  for  which  the  master  of 
Stephen  is  no  more  liable  than  if  his  servant  had  committed  any  other 
assault  and  batter}'.  All  the  cases  agree  that  a  master  is  not  liable  for 
the  wilful  mischief  of  his  servant,  though  he  be  at  the  time,  in  other 
respects,  engaged  in  the  service  of  the  former.  1  Chit.  PI.  C9,  ed.  of 
1828:  M'Manus  v.  Crickett,  1  East,  106;  Ham.  on  Part,  to  Actions, 
83  ;  Croft  v.  Alison,  4  Barn,  and  Aid.  590 ;  1  Chit.  Gen.  Pr.  80. 
Browcher  v.  Noidstrom,  1  Taunt.  568.  AVhy  is  the  master  chargeable 
for  the  act  of  his  servant?  Because  what  a  man  does  by  another  he 
does  by  himself.  The  act  is  within  the  scope  of  the  agenc}'.  Reeve's 
Dom.  Rel.  357.  "  A  master  is  not  answerable,"  says  Mr.  Hammond, 
"  for  every  act  of  his  servant's  life,  but  onl}'  for  those  done  in  his 
relative  capacit}*.     To  charge  the  master,  it  must  always  be  shown  or 


120  WRIGHT   V.    WILCOX.  [CUAP.  II 

presumed,  that  the  relation  of  master  and  servant  subsisted  between 
them  in  the  particular  affair.  If  the  master  is  liable  under  other  cir- 
cumstances, he  is  so,  not  quatenus  master,  but  as  any  one  would  be 
who  instigates  an  injury."  The  dividing  line  is  the  wilfulness  of  the 
act.  If  the  servant  make  a  careless  mistake  of  commission  or  omis- 
sion, tlie  law  holds  it  to  be  the  master's  business  negligently  done.  It 
is  of  the  very  nature  of  business  that  it  may  be  well  or  ill  done.  We 
frequently  speak  of  a  cautious  or  careless  driver  in  another's  employ- 
ment. Either  may  be  in  the  pursuit  of  his  master's  business,  and  neg- 
ligence in  servants  is  so  common  that  the  law  will  hold  the  master  to 
the  consequences  as  a  thing  that  he  is  bound  to  foresee,  and  provide 
against.  But  it  is  different  with  a  wilful  act  of  mischief.  To  subject 
the  master  in  such  a  case,  it  must  be  proved  that  he  actually  assented, 
for  the  law  will  not  imply  assent.  In  tlie  particular  affair  there  is, 
then,  no  longer  the  presumed  relation  of  master  and  servant.  The 
distinction  seems  to  resolve  itself  into  a  question  of  evidence.  A  man 
shall  be  presumed  to  intend  the  ordinarj-  consequences  of  his  own  acts  ; 
and  especially  so  far  as  such  consequences  may  be  innocent  of  all  evil 
intention  ;  for  these  he  may  be  safely  held  accountable.  But  for  those 
which  are  remote  or  barely  possible,  he  is  not  accountable  ;  and  if  they 
be  at  the  same  time  criminal,  it  would  be  violating  one  of  the  plainest 
principles  of  presumptive  evidence  to  sa}'  that  he  intended  tliem. 
"  The  master's  liabilit\'  has  never  been  questioned,"  says  Judge  Reeve, 
"when  a  servant  does  an  act  injurious  to  another,  through  negligence 
or  want  of  skill,  on  the  principle  that  the  master  should  at  his  peril 
employ  servants  who  are  skilful  or  careful."  Reeve's  Dom.  Rel.  357, 
358.  He  admits  that  the  English  cases  den}'  the  master's  liability 
where  the  servant's  act  is  wilful ;  but  questions  the  soundness  of  the 
distinction  if  the  wilful  act  be  done  in  the  immediate  performance  of 
his  master's  business  ;  in  which  I  understand  the  learned  judge  at  the 
circuit  to  have  followed  him  in  the  case  at  bar.  The  answer  is,  that 
the  law  holds  such  wilful  act  a  departure  from  the  master's  business. 
Judge  Reeve  remarks  that  one  of  two  innocent  persons  must  suffer, 
and  that  should  be  the  man  who  put  it  in  the  power  of  the  servant  to 
do  the  injury  ;  and  the  reason  is  as  strong  that  the  master  should  run 
the  risk  of  his  servant's  unruly  passions,  as  his  want  of  care.  Clearly 
the  argument  proves  too  much.  It  would  make  the  master  account- 
able for  ever}'  mischievous  act  of  the  servant  which  he  is  enabled  to 
commit  in  consequence  of  the  general  relation ;  for  aught  I  see, 
including  the  credit  which  the  servant  ma}'  obtain  with  his  merchant. 
The  learned  writer  puts  a  distinction  involving  the  very  question  we 
are  considering.  A  servant,  driving  a  wagon,  leaves  it  and  commits  an 
assault  and  battery  ;  for  that  he  admits  the  master  is  not  liable  ;  other- 
wise, if  he  should  drive  it  violently  over  a  man  with  intent  to  injure 
him.  "In  the  first  place"  (he  says),  "the  servant  had  abandoned  his 
master's  business  ;  in  the  latter  he  was  in  the  immediate  pursuit  of  it ; 
In  the  first  he  was  not  driving  his  master's  wagon,  in  the  last  he  was." 


6ECT.  II.J  WRIGHT   V.    WILCOX.  121 

Now  the  authorities  deny  that  when  the  servant  wilfully  drives  over 
the  man,  he  is  in  his  master's  business.  They  hold  it  a  departure,  and 
a  going  into  the  servant's  own  independent  business.  It  is  true,  he  is 
still  driving  his  master's  wagon,  and  so  he  would  be  though  he  should 
use  it  to  run  away  from  service.  It  will  hardly  be  contended,  that 
after  he  has  completed  his  escape,  the  master  would  be  liable  for  his 
running  over  a  man;  and  wh}'?  Because  he  has  taken  up  a  new  and 
distinct  object  of  his  own,  and  is  engaged  in  executing  that ;  and  has 
he  not,  to  every  material  purpose,  done  the  same  whenever  he  commits 
a  wilful  injury  to  another  ?  In  M'Manus  v.  Crickett,  the  servant,  while 
driving  a  chariot  on  the  road  as  authorized  by  his  master,  wilfully 
drove  against  the  plaintiff's  chaise.  Lord  Kenton  said  that  the  act 
being  wilful,  the  chariot  might  be  considered  for  that  purpose  in  the 
possession  of  the  servant  as  his  special  proi)erty,  and  not  the  master's. 
He  said  :  "  When  a  servant  quits  sight  of  the  object  for  which  he  is 
employed,  and  without  having  in  view  his  master's  orders,  pursues  that 
wliich  his  own  malice  suggests,  he  no  longer  acts  in  pursuance  of  the 
authority  given  him."  He  puts  the  master's  liability  on  the  ground  of 
negligence  or  unskilfiilness,  with  no  purpose  but  the  execution  of  his 
orders.  Judge  Reeve  says  it  is  difficult  to  reconcile  such  a  doctrine 
with  the  cases  which  hold  a  sheriif  liable  for  the  wilful  misfeasance  of 
his  deputy.  But  such  cases  are  clearl}',  as  stated  b}'  Mr.  Hammond, 
exceptions  to  the  general  rule  for  reasons  of  policy.  Hamm.  on  Part, 
to  Actions,  83,  84.  The  master  is  liable  in  case  onl}- ;  but  the  action 
against  the  sheriff  is  trespass,  and  lies  against  him  for  every  act  of  his 
officer  done  colore  officii,  even  the  execution  of  process  after  the  return 
day,  and  the  seizing  of  the  goods  of  a  third  person.  Id.  Ackworth  v. 
Kempe,  I  Doug.  40 ;  Parrot  v.  Mumford,  2  Esp.  N.  P.  Cas.  585.  So 
for  arresting  undei'  color  of  process  without  having  an}-  in  his  hands. 
Smart  v.  Hutton,  2  Nev.  and  Mann.  426. 

The  line  where  the  master's  liability  shall  terminate  must  be  placed 
somewhere  ;  and  the  acquiescence  of  Westminster  Hall  for  many  j-ears 
in  the  rule  we  have  cited  as  laid  down  b}'  Lord  Kenyon,  is  an  evidence 
of  the  common  law  not  to  be  resisted,  especialh'  as  it  will  not  be  found, 
I  imagine,  to  conflict  with  any  general  principle  of  that  law. 

The  statute  1  R.  S.  693,  §  6,  has  altered  the  rule  in  respect  to  car- 
riages for  the  conveyance  of  passengers.  The  owners  are  here  liable, 
whether  the  injur}'  done  to  another  b\'  the  driver  be  wilful  or  neg- 
ligent. It  is  not  contended,  however,  that  this  statute  applies  to  the 
case  at  bar. 

The  objection  to  the  judge's  charge  goes  to  the  very  foundation  of 
the  action  against  Joseph  Wilcox,  the  father.  It  should  have  been 
put  to  the  jur\'  that,  if  they  were  satisfied  from  the  evidence  of 
Stephen's  design  to  throw  the  plaintiff's  son  from  the  wagon,  they 
should  have  acquitted  his  father.  It  is  true  that  by  the  2  R.  S.  456, 
§  IG,  2d  ed.,  this  act  of  Stephen,  though  wilful,  and  formerly,  therefore, 
the  subject  of  an  action  of  trespass  only,  is,  by  the  statute,  made  the 


122  SLEATH    V.    WILSON.  [CHAP.  IL 

subject  of  an  action  on  the  case.  The  only  consequence  is  that  he 
might  have  been  convicted  and  liis  father  acquitted.  But  the  statute, 
though  it  mitigates  the  consequence  of  misjoinder,  never  intended  to 
alter  the  effect  of  the  relation  between  master  and  servant.  It  neither 
adds  to  the  right  of  the  plaintiff  nor  the  liability  of  the  defendant.  It 
goes  only  to  the  form  of  the  remedy,  b}^  giving  case  in  almost  all 
instances  of  personal  injuries  redressible  formerly  by  trespass  only. 
A  new  trial  must  be  granted,  the  costs  to  abide  the  event.^ 


SLEATH   V.  WILSON. 

Nisi  Prius.     1839. 

[9   C.  cj-  P.  607.] 

Case  to  recover  damages  for  an  injury  occasioned  to  the  plaintiff  by 
the  negligent  driving  of  a  servant  of  the  defendant.  Pleas  —  1st,  that 
the  horse  and  carriage  were  not  the  defendant's  ;  2nd,  that  the  person 
driving  was  not  the  defendant's  servant ;  3rd,  that,  at  the  time  when 
the  injury  was  sustained,  the  horse  and  carriage  were  not  in  the  employ 
of  the  defendant,  but  were  improperly  used  b}'  the  person  driving  then^ 
for  purposes  of  his  own. 

Wilde,  Serjt. ,  in  stating  tlie  plaintiff's  case,  referred  to  the  case  of 
Joel  y.  Morison. 

The  witnesses  on  the  part  of  the  plaintiff"  stated  that  the  defendant's 
servant  was  driving  a  four-wheeled  phaeton,  drawn  by  one  horse,  along 
the  Old  Street  Road,  at  a  quick  pace  ;  some  described  it  as  very  fast, 
others  as  not  so  fast ;  but  they  all  agreed  in  the  fact  that  the  plaintiff, 
who  was  an  old  woman  nearly  sevent\'  years  of  age,  and  was  crossing 
the  road,  was  knocked  down  b}'  one  of  the  shafts  of  the  carriage,  and 
much  bruised,  and  had  some  of  her  teeth  knocked  out. 

Slade,  for  the  defendant.  The  plaintiff's  counsel  must  make  out 
two  things  to  entitle  him  to  a  verdict :  1st,  that  the  servant  was  acting 
within  the  due  scope  of  his  authorit}' ;  and,  2ndly,  that  he  was  driving 
carelessl}'.  The  case  cited  for  the  plaintiff  is  not  all  fours  with  the 
present.     I  rel\'  on  the  case  of  M'Manus  v.  Crickett,  1  East,  106. 

I  shall  show  that  the  servant,  on  the  present  occasion,  was  acting 
contrary  to  the  directions  of  his  master.  He  had  no  business  in  Old 
Street  Road  at  all ;  it  was  four  miles  out  of  his  wa}-.  My  learned  friend 
admits  that,  if  a  servant  take  his  master's  carriage  without  his  knowl- 
edge, the  master  will  not  be  liable  for  his  acts.  I  do  not  see  any 
difference  between  that  state  of  facts  and  this,  so  far  as  the  conduct 
of  the  servant  is  concerned.    I  see  no  difference  between  the  servant  in 

1  Ace:  De  Camp  r.  Mississippi  &  Missouri  Railroad  Co.,  12  Iowa,  348  (1861); 
Wood  r.  Detroit  City  Street  Ry.  Co.,  52  Mich.  402  (1884);  Galbrielson  o.  Waydell 
135  N.  Y.  1  (1892).  "Compare  Dwinelle  v.  N.  Y.  C.  &  H.  R.  Raihroad  Co.,  120  N.  Y 
117,  125-126  (1890).  — Ed. 


SECT.  II.]  SLEATH   V.    WILSON.  123 

the  present  case  driving  out  of  his  way,  and  the  servant  in  the  case 
admitted  taking  the  carriage  out  of  the  coach-house,  and  using  it  for 
his  own  purposes.  As  to  the  question  of  negligence,  driving  on  the 
wrong  side  of  the  road  is  not  proof  of  negligence  ;  there  is  no  obli- 
gation to  keep  on  any  particular  side  of  the  road,  if  there  is  room 
enough  on  the  road,  and  no  other  carriages  are  in  the  way. 

The  servant  who  was  driving  the  carriage  was  called  as  a  witness, 
and  said:  "I  drove  my  master  to  Great  Stamford  Street;  my  orders 
were,  to  put  up  at  the  Red  Lion  in  Castle  Street,  Leicester  Square,  and 
meet  my  master  at  the  Olympic  Theatre;  I  went  into  Old  Street  Road 
on  business  for  myself ;  I  took  a  parcel  for  m}'  wife  to  her  father  and 
mother;  I  was  driving  at  a  slow  pace  in  Old  Street  Road,  —  at  a  pace 
not  exceeding  four  miles  an  hour ;  I  called  to  the  woman  three  times 
distinctly,  as  loud  as  I  could  ;  she  took  no  notice  ;  I  pulled  up  imme- 
diately when  I  found  she  took  no  notice  ;  the  horse  was  walking  then  ; 
her  back  was  turned,  and  I  suppose  the  shaft  of  the  vehicle  struck  her 
on  the  shoulder ;  somebody  seized  the  horse  by  the  bit,  and  he  reared 
on  his  hind  legs,  and  backed  ;  I  was  sitting  low  at  the  time  ;  I  went  to 
the  old  woman,  and  offered  her  a  recompense  of  £5  ;  she  said  she  could 
do  nothing  with  it,  I  must  speak  to  the  gentleman  ;  I  went  to  him,  and 
he  said  he  would  speak  to  the  part}',  and  I  heard  nothing  more  of  it>; 
a  friend  gave  me  the  monej'."  On  his  cross-examination  he  said : 
"  I  do  not  know  that  that  money  came  from  my  master ;  it  was  a 
friend  at  Turnham  Green  ;  I  did  not  go  to  the  old  woman  by  my 
master's  desire ;  the  only  conversation  I  had  with  my  master  before  I 
went  was  being  scolded  for  going  out  of  my  wa}-;  the  name  of  the  per- 
son I  got  the  money  from  was  Barnett;  he  is  a  gentleman,  a  lawyer; 
as  far  as  I  know,  he  is  my  master's  lawyer.  When  I  came  back,  I  gave 
the  money  back  to  Mr.  Barnett ;  it  was  dusk  when  I  was  in  the  Old 
Street  Road  ;  I  saw  an  object  as  I  was  driving ;  it  had  a  cloak  on  ;  I 
was  quite  pretty  nearly  at  a  stand-still,  when  she  ran  herself  against 
the  shaft;  she  came  in  contact  with  the  shaft ;  I  was  pulling  up  at  the 
time  ;  her  back  was  towards  the  horse  ;  she  w^as  looking  a  contrary 
wa}',  and  then  she  fell  down  ;  I  suppose  she  fell  down  from  fright ;  I 
got  to  the  Red  Lion  about  half-past  seven  ;  I  went  there  the  direct 
road  from  Old  Street  Road ;  I  had  lived  with  the  defendant  about  a 
year  and  a  half  at  the  time,  and  lived  with  him  about  nine  months  after." 
In  answer  to  questions  from  the  judge,  he  said  :  "  My  master  did  not 
know  anything  about  my  having  the  parcel  to  deliver ;  I  left  the  car- 
riage in  a  yard  at  the  corner  of  Old  Street  Road,  by  Shoreditch,  while 
I  went  to  Bateman's  Row  with  the  parcel ;  this  was  about  200  yards 
from  the  place  where  the  accident  happened." 

The  gentleman  at  whose  house  in  Stamford  Street  the  defendant  was 
set  down,  was  also  called  as  a  witness  for  the  defence,  and  stated  that 
the  carriage  arrived  at  his  house  about  four  in  the  afternoon,  that  he 
heard  the  defendant  direct  the  servant  to  drive  to  some  stables,  the 
name  of  which  he  did  not  remember,  and  to  meet  him  afterwards  with 


124  SLEATH   V.   WILSON.  [CHAP.  IL 

the  carriage  at  the  Olympic  Theatre,  and  that  the  sei'vant  turned  round 
and  drove  the  carriage  in  a  direction  wliich  would  lead  towards  Leices- 
ter Square. 

Wilde,  Serjt.,  in  reply.  First,  as  to  the  law:  The  rule  of  law  I 
take  to  be  tliis,  —  if  you  give  your  servant  the  care  and  control  of  your 
carriage  and  horses,  and  tell  him  to  take  the  carriage  to  a  given  place, 
you  place  the  carriage  under  his  control  as  to  the  mode  in  which  he 
is  to  arrive  at  that  place,  and  for  his  conduct  in  the  course  of  the  execu- 
tion of  that  order  ^-ou  will  be  responsible.  "VVe  shall  have  next  the 
case  of  a  stage  coach,  and  it  will  be  said  that  if  the  coach  does  not  go 
by  the  usual  and  direct  road,  the  proprietors  will  not  be  liable.  The 
case  cited  of  M'Manus  v.  Crickett  is  quite  a  different  case,  —  there 
the  servant  had  a  spite  against  the  officer,  and  drove  against  him. 

Erskine,  J.     It  is  quite  a  different  case. 

Wilde,  Serjt.  It  is  an  improper  mode  ;  but  is  a  mode  of  conducting 
the  emplo3'ment — the  man  was  out  of  his  road  —  his  object  was  the 
Red  Lion  Stables,  and  he  went  out  of  his  way  for  purposes  of  his  own, 
but  still  it  was  an  improper  act  while  under  his  master's  orders.  It 
may  be  said  next,  that  if  the  servant  turns  out  of  his  road  to  get  some- 
thing to  drink,  the  master  will  not  be  liable  for  any  injury  done  by  him. 
It  is  enough  that  it  is  in  the  course  of  his  emplo}-,  though  he  acts  im- 
properlj'  in  carrying  his  master's  orders  into  execution.  The  question 
is,  was  he  when  the  act  occurred  in  the  course  of  the  master's  employ? 
If  he  was,  the  master  will  be  liable.  After  some  observations  bj'  the 
learned  Serjeant  on  the  question  of  negligence, 

Erskine,  J.,  in  summing  up,  said  :  This  is  an  action  brought  by  the 
plaintiff  to  recover  damages  for  an  injury  which  she  alleges  she  has 
sustained  by  the  negligent  conduct  of  the  defendant's  servant.  The 
law  has  said  that  whencA'er  an  injur}'  has  been  occasioned  by  the 
negligent  conduct  of  a  person  in  the  service  of  another,  the  master 
is  answerable  for  it ;  and  this  is  for  the  purpose  of  inducing  those 
who  employ  others  to  take  care  that  they  emplo}'  proper  persons.  The 
defendant  pleads,  first,  that  the  horse  and  carriage  were  not  his,  and, 
secondly',  that  the  servant  was  not  his  servant ;  but  it  has  been  clearly 
proved  by  the  witnesses  on  the  part  of  the  defendant,  that  the  carriage 
was  the  defendant's,  and  that  the  person  driving  it  was  his  servant. 
But  in  addition  to  these  he  has  pleaded,  thirdl}',  that  the  horse  and 
carriage  at  the  time  of  the  injury  were  not  in  the  emplo}'  of  the  defend- 
ant, but  were  improperl}'  used  b}'  the  servant  for  purposes  of  his  own  ; 
and  evidence  has  been  given  that  the  master  directed  the  servant  to 
drive  to  the  Red  Lion,  in  Castle  Street,  Leicester  Square,  but  that  the 
servant  improperly  drove  to  the  Old  Street  Road,  to  deliver  a  parcel  of 
his  own ;  and  the  point  has  been  put  to  the  court,  that  inasmuch  as  it 
is  clear  that  the  servant  was  not  at  that  time  engaged  in  his  master's 
business,  this  action  cannot  be  maintained.  But  I  am  of  opinion  that 
this  action  may  be  maintained.  I  think  the  law  has  been  most  properly 
laid  down  by  Mr.  Baron  Parke,  in  the  case  which  has  been  cited.    It  is 


SECT.  II.]  QUARMAN   V.    BURNETT.  125 

quite  clear  that,  if  a  servant  without  his  master's  knowledge  takes  his 
master's  carriage  out  of  the  coach-house,  and  with  it  commits  an  injury, 
the  master  is  not  answerable  ;  and  on  this  ground,  that  the  master  has 
not  entrusted  tlie  servant  with  the  carriage.  But  whenever  the  master 
has  entrusted  the  servant  with  the  control  of  the  carriage,  it  is  no  answer 
that  the  servant  acted  improperh'  in  the  management  of  it.  If  it  were, 
it  might  be  contended  that  if  a  master  directs  his  servant  to  drive 
slowly,  and  tlie  servant  disobeys  his  orders,  and  drives  fast,  and 
through  his  negligence  occasions  an  injury,  the  master  will  not  be 
liable.  But  that  is  not  the  law  :  the  master  in  such  a  case  will  be 
liable,  and  the  ground  is,  that  he  has  put  it  in  the  servant's  power  to 
mismanage  the  carriage,  by  entrusting  him  with  it.  And  in  this  case, 
I  am  of  opinion  that  the  servant  was  acting  in  the  course  of  his  emplo}-- 
ment,  and  till  he  had  deposited  the  carriage  in  the  Red  Lion  Stables, 
in  Castle  Street,  in  Leicester  Square,  the  defendant  was  lial)le  for  any 
injury  which  might  be  committed  through  his  negligence.  After  read- 
ing the  evidence  and  observing  on  the  question  of  negligence,  His 
Lordship  left  the  case  to  the  jury,  who  found  a 

Verdict  for  the  plaintiff — damages,  £25. 

TFi7(7e,  Serjt.,  and  Ghannell^  for  the  plaintiflf. 

Slade,  for  the  defendant. 


QUARMAN  V.  BURNETT. 

Exchequer.      1840. 
[6  M.  cj-    W.  499  ] 

Case.  The  declaration  stated,  that  the  plaintiff,  on  the  21st 
December,  1838,  was  possessed  of  a  carriage,  to  wit,  a  chaise  of 
great  value,  &c.,  and  of  a  horse  then  drawing  the  same,  in  which 
said  carriage  the  plaintiff  was  then  riding :  and  that  the  defendants 
were  also  possessed  of  a  carriage,  to  wit,  a  chariot,  to  which  said  car- 
riage of  the  defendants  were  harnessed  two  horses,  and  which  said 
carriage  and  horses  loere  then  under  the  care  of  the  defendants. 
Nevertheless  the  defendants  so  carelessh'  &c.  conducted  themselves 
in  the  premises,  that  by  and  through  the  mere  carelessness,  negligence, 
want  of  proper  caution,  and  improper  conduct  of  the  defendants  in  that 
behalf,  the  said  horses  so  harnessed  to  the  carriage  of  the  defendants 
started  off  with  the  said  carriage,  without  a  driver  or  other  person  to 
manage,  govern,  or  direct  the  same,  whereby  the  said  carriage  of  the 
defendants  then  ran  and  struck  with  great  force  against  the  said  carriage 
of  the  plaintiff,  and  thereby'  greatly  crushed  and  injured  the  same, 
and  the  plaintiff  was  thrown  with  great  force  and  violence  out  of  his 
carriage  upon  the  ground,  c&c,  &c. 

Pleas,  first,  not  guilt}' ;  secondly,  that  the  said  carriage  and  horses  in 


126  QUARMAN   V.   BURNETT.  [CHAP.  IL 

the  declaration  mentioned,  or  either  of  them,  were  not  under  the  care 
of  the  defendants,  or  either  of  them,  in  manner  and  form,  &c. ;  upon 
which  issues  were  joined. 

At  the  trial  before  Maule,  B.,  at  the  Middlesex  Sittings  in  last 
Michaelmas  Term,  the  following  appeared  to  be  the  matei-ial  facts  of 
the  case : — 

The  defendants  are  elderly  ladies  resident  in  Moore  Place,  Lambeth, 
keeping  a  carriage  of  their  own,  but  hiring  horses  and  a  coachman 
from  a  job-mistress  of  the  name  of  Mortlock.  They  generally  had  the 
same  horses,  and  always  the  same  coachman,  a  man  of  the  name  of 
Kemp  (the  only  regular  coachman  in  Miss  Mortlock's  employ),  to 
whom  the}'  paid  2s.  for  each  drive,  having  told  him  when  they  first  set 
up  their  own  carriage,  three  years  ago,  that  the}'  would  pay  him  that 
sum.  He  received  regular  weekl}'  wages  from  Miss  Mortlock.  The 
defendants  sometimes  took  the  coachman  and  horses  into  the  country 
for  several  weeks,  when  the}'  paid  him  a  certain  sura  per  week.  They 
had  a  plain  coachman's  coat  and  a  liver}'  hat,  for  which  Kemp  was 
measured,  and  which  he  wore  when  driving  the  defendants,  and  took  off 
on  his  return  to  their  house,  where  the  coat  and  hat  were  hung  up  in 
the  passage.  On  the  21st  December,  1838,  he  went  into  the  defend- 
ants' bouse  to  pull  off  the  hat  (he  did  not  wear  the  coat  that  day, 
having  his  own  box  coat  on),  and  left  no  one  in  the  charge  of  the  horses  : 
they  started  off,  ran  against  the  plaintiff's  chaise,  which  was  drawn  up 
on  the  side  of  the  footpath,  threw  him  out,  and  seriously  injured  him, 
and  damaged  the  chaise. 

This  being  the  state  of  facts,  it  was  contended  for  the  defendants 
that  Kemp  was,  under  the  circumstances,  the  servant  not  of  the  de- 
fendants, but  of  the  job-mistress,  and  that  the  defendants  were  not 
responsible.  The  following  cases  were  referred  to :  Laugher  v. 
Pointer,  5  B.  &  C.  547 ;  Smith  v.  Lawrence,  2  Man.  &  R.  I. ; 
Brady  v.  Giles,  1  M.  &  Rob.  494;  Fenton  i-.  Dublin  Steam  Packet 
Co.,  8  Ad.  &  i:.  835;  1  P.  «fe  D.  103;  Randleson  v.  Murray,  8 
Ad.  &  E.  109  ;  3  N.  &  P.  239.  The  learned  Judge  thought  there 
was  evidence  to  go  to  the  jury,  but  gave  the  defendants'  counsel 
leave  to  move  to  enter  a  nonsuit:  it  appearing  to  him  that  there  was 
some  evidence  that  the  carriage  was  under  the  defendants'  care,  both 
in  respect  of  their  choosing  this  particular  coachman,  and  also  in 
respect  of  his  having  gone  to  put  back  their  hat,  and  left  the  carriage 
unattended  to.  And  he  told  the  jury  that  if  the  coachman  was,  at  the 
time  the  horses  ran  away,  acting  as  the  servant  of  the  defendants, 
they  were  liable  :  and  that  he  thought  he  was  acting  as  such  servant,  if 
the  job-mistress  appointed  him  specially  at  the  defendants'  desire,  or  if 
in  putting  back  his  hat  he  acted  for  the  defendants.  The  jury  found  a 
verdict  for  the  plaintiff,  damages  198Z.  9.s. 

Kelly  having  obtained  a  rule  nisi  for  entering  a  nonsuit,  pursuant  to 
the  leave  reserved, 

Thomas  (Sir  F.  Pollock  with  him)  showed  cause. 

Channell,  Serjt.  (Kelly  with  him),  in  support  of  the  rule. 


SECT.  II.]  QUARMAN   V.    BURNETT.  127 

Parke,  B.^  On  tlie  argument,  in  the  course  of  which  the  principal 
authorities  were  referred  to,  we  intimated  our  opinion  that  we  should 
be  called  upon  to  decide  the  point  which  arose  in  the  case  of  Laugher 
V.  Pointer,  and  upon  which  not  only  the  Court  of  King's  Bench,  but  the 
twelve  Judges  differed  ;  as  the  special  circumstances  above  mentioned 
did  not  seem  to  us  to  make  any  difference ;  and  we  are  still  of  opinion 
that  they  did  not.  It  is  undoubtedly  true  that  there  may  be  special 
circumstances  wiiich  may  render  the  hirer  of  job-horses  and  servants 
responsible  for  the  neglect  of  a  servant,  though  not  liable  by  virtue  of 
the  general  relation  of  master  and  servant.  He  may  become  so  by  his 
own  conduct,  as  by  taking  the  actual  management  of  the  horses,  or 
ordering  the  servant  to  drive  in  a  particular  manner,  which  o(?casions 
the  damage  complained  of,  or  to  absent  himself  at  one  particular  mo- 
ment, and  the  like.  As  to  the  supposed  choice  of  a  particular  servant, 
ray  Brother  Maule  thought  there  was  some  evidence  to  go  to  the  jury, 
of  the  horses  being  under  the  defendants'  care,  in  respect  of  their  choos- 
ing this  particular  coachman.  We  feel  a  difliculty  in  saying  that  there 
was  any  evidence  of  choice,  for  the  servant  was  the  only  regular  coach- 
man of  the  job-mistress's  yard  ;  when  he  was  not  at  home,  the  defend- 
ants had  occasionall}'  been  driven  hy  another  man,  and  it  did  not 
appear  that  at  any  time  since  the3'  had  their  own  carriage,  the  regular 
coachman  was  engaged,  and  they  had  refused  to  be  driven  by  another ; 
and  the  circumstance  of  their  having  a  liver}',  for  which  he  was  meas- 
ured, is  at  once  explained  b}'  the  fact,  that  he  was  the  only  servant  of 
Miss  Mortlock  ever  likel}-  to  drive  them.  Without,  however,  pro- 
nouncing any  opinion  upon  a  point  of  so  much  nicety,  and  so  little  defined, 
as  the  question  whether  there  is  some  evidence  to  go  to  a  jury,  of  an}' 
fact,  it  seems  to  us  that  if  the  defendants  had  asked  for  this  particular 
servant,  amongst  many,  and  refused  to  be  driven  by  anj-  other,  the}' 
would  not  have  been  responsible  for  his  acts  and  neglects.  If  the  driver 
be  the  servant  of  a  job-master,  we  do  not  think  he  ceases  to  be  so  by 
reason  of  the  owner  of  the  carriage  preferring  to  be  driven  by  that  par- 
ticular servant,  where  there  is  a  choice  amongst  more,  any  more  than  a 
hack  post-boy  ceases  to  be  the  servant  of  an  innkeeper,  where  a  travel- 
ler has  a  particular  preference  of  one  over  the  rest,  on  account  of  his 
sobriety  and  carefulness.  If,  indeed,  the  defendants  had  insisted  upon 
the  horses  being  driven,  not  by  one  of  the  regular  servants,  but  by  a 
stranger  to  the  job-master,  appointed  by  themselves,  it  would  have 
made  all  the  difference.  Nor  do  we  think  that  there  is  any  distinction 
in  this  case,  occasioned  by  the  fact  that  the  coachman  went  into  the 
house  to  leave  his  hat,  and  might  therefore  be  considered  as  acting  by 
their  directions,  and  in  their  service.  There  is  no  evidence  of  any 
special  order  in  this  case,  or  of  any  general  order  to  do  so,  at  all  times, 
without  leaving  any  one  at  the  horses'  heads.  If  there  had  been  any 
evidence  of  that  kind,  the  defendants  might  have  been  well  consid- 

*  After  stating  the  case. —  Ed. 


128  QUAEMAN    V.    BURNETT.  [CHAP.  n. 

ered  as  having  taken  the  care  of  the  horses  upon  themselves  in  the 
meanlinie. 

Besides  tliese  two  circumstances,  the  fact  of  the  coachman  wearing 
the  defendants'  livery,  witli  their  consent,  whereby  they  were  the 
means  of  inducing  third  persons  to  believe  that  he  was  their  servant, 
was  mentioned  in  the  course  of  the  argument  as  a  ground  of  liability, 
but  cannot  affect  our  decision.  If  the  defendants  had  told  the  plaintiff 
that  lie  might  sell  goods  to  their  livery  servant,  and  had  induced  liim  to 
contract  with  the  coachman,  on  the  footing  of  his  realh'  being  such 
servant,  the}'  w'onld  have  been  liable  on  such  contract:  but  this  repre- 
sentation can  only  conclude  the  defendants  with  respect  to  those  who 
have  altered  tlieir  condition  on  the  faith  of  its  being  true.  In  the 
present  case,  it  is  matter  of  evidence  only  of  the  man  being  their 
servant,  which  the  fact  at  once  answers. 

We  are  therefore  compelled  to  decide  upon  tlie  question  left  unsettled 
b}'  the  case  of  Laugher  v.  Pointer,  in  which  the  able  judgments  on  both 
sides  have,  as  is  observed  by  Mr.  Justice  Story  in  his  Booiv  on  Agenc}', 
page  406,  "exhausted  the  whole  learning  of  the  subject,  and  should 
on  that  account  attentiveh'  be  studied."  We  have  considered  them 
full}',  and  we  think  the  weight  of  authority,  and  legal  principle,  is 
in  favour  of  the  view  taken  by  Lord  Tenterden  and  Mr.  Justice 
Llttledale. 

The  immediate  cause  of  the  injury  is  the  personal  neglect  of  the 
coachman,  in  leaving  the  horses,  which  were  at  the  time  in  his  imme- 
diate care.  Tlie  question  of  law  is,  whether  any  one  but  the  coachman 
is  liable  to  the  party  injured  ;  for  the  coachman  certainly  is. 

Upon  the  principle  that  qui  facit  per  alium  facit  per  se,  the  master  is 
responsible  for  the  acts  of  his  servant;  and  that  person  is  undoubtedly 
liable  who  stood  in  tiie  relation  of  master  to  the  wrong-doer — he  who 
had  selected  hira  as  his  servant,  from  the  knowledge  of  or  belief  in  his 
skill  and  care,  and  who  could  remove  him  for  misconduct,  and  whose 
orders  he  was  bound  to  receive  and  obey  ;  and  whether  such  servant 
has  been  ap[)ointed  by  the  master  directly,  or  intermediately  through 
the  intervention  of  an  agent  authorized  by  him  to  appoint  servants  for 
him,  can  make  no  difference. 

But  the  liability,  by  virtue  of  the  principle  of  relation  of  master  and 
servant,  must  cease  where  the  relation  itself  ceases  to  exist:  and  no 
other  person  than  the  master  of  such  servant  can  be  liable,  on  the  simple 
ground  that  the  servant  is  the  servant  of  another,  and  his  act  the  act  of 
another ;  consequently,  a  third  person  entering  into  a  contract  with  the 
master,  which  does  not  raise  the  relation  of  master  and  servant  at  all,  is 
not  thereby  rendered  liable  ;  and  to  make  such  person  liable,  recourse 
must  be  had  to  a  different  and  more  extended  principle,  namely  that  a 
person  is  liable  not  only  for  the  acts  of  liis  own  servant,  but  for  any  in- 
jury which  arises  by  the  act  of  another  person,  in  carrying  into  execution 
that  which  that  other  person  has  contracted  to  do  for  his  benefit.  That, 
however,  is  too  large  a  position,  as  Lord  Chief  Justice  Eyre  says  in  the 


SECT.  II.]  MARTIN   V.    TEMPERLEY.  129 

case  of  Bush  v.  Steinman,  1  Bos.  &  P.  404,  and  cannot  be  maintained  to 
its  full  extent  without  overturning  some  decisions,  and  producing  conse- 
quences which  would,  as  Lord  Tenterden  observes,  "  shock  the  common 
sense  of  all  men  ;  "  not  merely  would  the  hirer  of  a  post-chaise,  hackney- 
coach,  or  wherry  on  the  Thames,  be  liable  for  the  acts  of  the  owners  of 
those  vehicles,  if  the^"  had  the  management  of  them,  or  their  servants,  if 
the}'  were  managed  b}-  servants,  but  the  purchaser  of  an  article  at  a  shop, 
which  he  had  ordered  the  shopman  to  bring  home  for  him,  might  be  made 
responsilde  for  an  injur}'  committed  by  the  shopman's  carelessness,  whilst 
passing  along  the  street.  It  is  true  that  there  are  cases — for  instance, 
that  of  Bush  v.  Steinman,  Slj'  v.  Edgley,  6  Esp.  6,  and  others,  and  per- 
haps amongst  them  may  be  classed  the  recent  case  of  Randleson  v. 
Murray  —  in  which  the  occupiers  of  land  or  buildings  have  been  held 
responsible  for  acts  of  others  than  their  servants,  done  upon,  or  near, 
or  in  respect  of  their  property.  But  these  cases  are  well  distinguished 
by  my  Brother  Littledale  in  his  \evy  able  judgment  in  Laugher  v. 
Pointer.  .  .  . 

It  is  unnecessary  to  repeat  at  length  the  reasons  given  b}-  m}'  Brother 
Littledale  for  this  distinction,  which  a[)pear  to  us  to  be  quite  satisfac- 
tory ;  and  the  general  proposition  referred  to,  upon  which  only  can  the 
defendants  be  liable  for  the  acts  of  persons  who  are  not  their  servants, 
seems  to  us  to  be  untenable.  We  are  therefore  of  opinion  that  the  de- 
fendants were  not  liable  in  this  case,  and  the  rule  must  be  made  abso- 
lute to  enter  a  verdict  for  the  defendants  on  the  second  issue. 

Hule  absolute. 


MARTIN   V.    TEMPERLEY. 

Queen's  Bench.     1843. 

[4  Q.  B.  298.] 

The  declaration  stated  that,  whereas  plaintiff,  on  etc.,  before  and  at 
the  time  of  the  grievance  hereinafter  mentioned,  was  lawfully  pos- 
sessed of  a  certain  boat  of  great  value,  to  wit,  etc.,  then  lawfully  being 
in  the  River  ThaiTies  ;  and  defendant  was  also  then  possessed  of  two 
barges  in  the  same  river,  and  then  had  the  care,  direction  and  manage- 
ment of  the  same  ;  yet  defendant,  not  regarding  his  duty  in  that  behalf, 
whilst  the  said  boat  of  plaintiff  so  was  in  the  River  Thames  aforesaid, 
to  wit  on  etc.,  took  so  little  and  such  bad  care  of,  and  so  carelessly, 
negligently  and  improperly  managed,  governed  and  directed  his  said 
barges,  that  one  of  them,  by  and  through  the  carelessness,  misdirection 
and  mismanagement,  negligence  and  improper  conduct  of  defendant 
and  his  servants  in  that  behalf,  then  with  great  force  and  violence  ran 
foul  of  and  struck  against  the  said  boat  or  vessel  of  plaintiff,  and 
thereby  then  greatly  broke,  damaged  and  injured  the  same  ;  and  by 

9 


130  MARTIN   V.    TEMPEKLEY.  [CHAP.  II. 

means  of  the  premises  the  said  boat  of  phiiiitiff  then  became  and  was 
filled  with  water,  and  sunk  in  the  said  river  ;  and  thereby-  divers  goods 
and  chattels,  to  wit  etc.  (special  damage  from  tlie  loss  of  goods  on 
board,  expense  of  repairs  and  deprivation  of  the  use  of  the  vessel, 
and  other  expenses  in  respect  of  goods  on  board,  and  of  the  vessel). 

Pleas.  1.  Not  guilty.  2.  That  defendant  had  not,  at  the  time  of 
the  committing,  etc.,  the  care,  direction,  or  management  of  the  two 
vessels  or  barges,  or  either  of  them  ;  conclusion  to  the  country.  Issue 
thereon. 

On  the  trial,  before  Lord  Denman,  C.  J.,  at  the  London  sittings 
after  Hilar}'  term,  1842,  it  appeared  that  the  defendant  had  hired  by 
the  year  two  barges  mentioned  in  the  declaration  from  one  Covington, 
who  was  the  owner  of  the  barges  and  a  freeman  of  the  Company  of 
Watermen  and  Lightermen,  incorporated  by  Stat.  7  &  8  G.  4,  c.  75, 
§  4,  that  it  was  usual  to  hire  barges  in  this  manner  ;  and  that  the  barges 
so  hired  were  entirely  under  the  control  of  the  persons  hiring  them. 
The  accident  occurred  within  the  limits  named  in  the  title  of  the  act, 
and  was  occasioned  by  the  two  barges,  which  at  the  time  were  lashed  to- 
gether, coming  into  collision  with  the  plaintiff's  boat.  The  barges 
were  at  that  time  under  the  management  of  two  men  named  Wickings 
and  Martin.  Martin  was  a  freeman  of  the  Company'  of  Watermen 
and  Lightermen,  and  AVickings  was  an  apprentice  to  his  own  brother, 
Joseph  Richard  Wickings.  J.  R.  Wickings  was  a  freeman  of  the  com- 
pan\',  and  foreman  to  the  defendant ;  he  was  paid  b}'  the  defendant 
weekly  ;  and  he  had  let  out  himself  and  his  apprentice  by  the  week. 
He  hired  Martin  for  the  particular  job,  and  was  also  paid  bj'  the  de- 
fendant for  what  Wickings  the  apprentice  did,  by  the  job.  The  de- 
fendant's counsel  contended  that  the  defendant  was  not  liable  for  the 
damage,  inasmuch  as  he  was  bound  to  emplo}'  onh'  persons  authorized 
to  navigate,  under  Stat.  7  &  8  G.  4.  c.  75,  §  37.  A  copy  of  the  by-laws, 
made  under  §  57  of  the  statute,  was  put  in  ;  by  the  25th  of  which  it  was 
ordained  that,  during  all  the  time  that  an}'  barge,  &c.,  should  be  navi- 
gating or  passing  along  the  river  within  the  limits,  one  able  and  skilful 
man,  authorized  by  law,  should  be  constantly  on  board  the  same,  for 
the  navigation  and  management  thereof;  and,  if  the  owner  or  owners 
of  an}'  such  barge,  «Scc.,  should  permit  or  suffer  the  same  to  pass  along 
any  part  of  the  limits  aforesaid  without  having  at  least  one  such  able  or 
skilful  man  or  other  person,  authorized  as  aforesaid,  to  navigate  the  same, 
he  or  they,  or  any  of  them,  should  forfeit  for  every  such  offence  40s. ; 
and,  if  the  person  or  persons  on  board  should  quit  or  leave  the  barge, 
&c.,  at  any  time  during  the  navigation  or  passage  through  the  limits, 
he  or  they  should  forfeit  and  pay  for  every  such  offence  40s. ;  and  it 
should  be  lawful  for  any  harbor-master  and  his  assistants  to  remove 
the  said  barge,  &c. ;  and  the  charges  and  expenses  thereof  respec- 
tively should  be  paid  by  the  owner  or  owners  or  master  thereof.  It 
appeared  that  there  were  about  six  thousand  freemen  and  apprentices. 
The  jury  being  of  opinion  that  negligence  was  proved,  the  Lord  Chief 


SECT.  II.]  MARTIN   V.    TEMPERLEY.  131 

Justice  directed  a  verdict  for  the  plaintiff,  giving  leave  to  move  for  a 
nonsuit,  or  a  verdict  for  the  defendant  on  the  second  plea.  In  Easter 
term,  1842,  Richards  obtained  a  rule  nisi  for  a  nonsuit  or  verdict  for 
defendant,  or  for  a  new  trial. 

Thesiger  and  Bovill  now  showed  cause. 

R.  V.  Michards  and  Peacock,  contra. 

Lord  Denman,  C.  J.  It  is  quite  clear  that  the  defendant  is  the  party 
liable.  In  the  first  place,  every  man  is  liable  for  the  misconduct  of  his 
servants  ;  and,  in  the  second,  the  men  here  undoubtedly  were  the  ser» 
vants  of  the  defendant ;  and  men  so  employed  are  even  called  servants 
in  Stat.  7  &  8  G.  4.  c.  75,  §  102.  But  a  question  is  made,  whether  the 
limitation  of  the  defendant's  power  of  choice  deprived  the  party  injured 
of  the  remedy  against  him.  I  cannot  think  it  can  be  reasonably  con- 
tended that  it  does  :  the  inconvenience  would  be  enormous.  Mr.  Bo- 
vill's  argument  on  the  statute  respecting  apprentices  bears  very  strongly 
on  the  point.  Before  the  repeal  on  that  statute,  persons  could  not  be 
cmplo3ed  in  trades  without  having  been  apprenticed ;  the  selection 
therefore  was  limited  just  as  much  as  here.  Sect.  89,  of  Stat.  7  &  8 
G.  4.  c.  75  makes  an  unskilful  navigator  liable,  to  the  amount  of  £5, 
for  the  mischief  he  ma}'  do ;  but  he  is  not  touched  in  this  respect  by 
any  other  provision  of  the  act.  The  decision  of  Dr.  Lushington  in  The 
Maria,  1  W.  Rob.  Adm.  R.  95,  cannot  be  applied  to  this  case.  Dr. 
Lushington  must  be  understood  as  assuming  that  the  master  was  there 
bound  to  take  the  first  licensed  pilot  who  offered  himself  He  clearly 
considers  that,  under  §  6  of  the  Newcastle  Pilot  Act,  41  G.  3.  (U.  K.) 
c.  86,  the  master  of  the  ship,  being  foreign,  was  bound  to  take  the  pilot 
on  board,  without  any  power  of  selection  ;  and  indeed  in  the  case  of  a 
foreign  vessel  in  a  strange  port  there  could  seldom  be  anj'  ground  for 
preferring  one  pilot  to  another,  and  therefore  little  practical  power  of 
selection,  even  if  two  or  three  offered  themselves  at  the  same  time. 
The  rule  of  respondeat  superior  is  not  impeached  :  the  onl}-  question 
is  who  is  the  superior.  Under  Stat.  C  G.  4.  c.  125,  the  authority  of  the 
master  is  absolutely  superseded  by  that  of  the  pilot.  Milligan  v.  "Wedge, 
12  A.  &  E.  737,  has  been  fairly  pressed  upon  us;  but  the  distinction 
between  that  case  and  the  present  is  clear.  The  drover  there  was  pur- 
suing a  separate  trade  :  to  dri-'e  the  bullocks  was  no  part  of  the  butch- 
er's business  :  he  had  only  to  select  the  licensed  drover,  who  was  the 
person  that  set  in  motion  the  servant  whose  negligent  driving  did  the 
mischief ;  and  the  owner  of  the  bullock  had  no  longer  any  control  over 
it.  In  the  present  case  it  was  otherwise  ;  and  therefore  our  decision 
here  is  not  inconsistent  with  that  in  Milligan  v.  Wedgo. 

Patteson,  J.  I  am  of  the  same  opinion.  The  first  question  is, 
whether  the  relation  of  master  and  servant  existed  between  the  defend- 
ant and  those  managing  his  barges  ;  and  next,  if  it  did,  whether  there 
be  anything  in  Stat.  7  «&  8  G.  4,  c.  75  that  prevents  the  legal  conse- 
quences following  from  such  a  relation.  On  the  part  of  the  defend- 
ant it  is  argued,  without  reference  to  the  statute,  that  this  is  the  case 


132  MAKTIN    V.   TEMPEKLEY.  [CHAF.  IL 

not  of  master  and  servant,  but  of  an  independent  contract  to  perform 
the  work,  as  in  Milligan  v.  Wedge  and  Quarman  v.  Burnett,  6  M.  &  W. 
499.  But  tliat  is  clearly  erroneous.  Independently  of  the  act,  the  men 
navigating  the  barges  would  clearly  be  the  defendant's  servants.  If 
the  defendant,  being  at  libert}'  to  employ  whom  he  pleased,  engaged 
persons  to  manage  his  barges  on  the  Thames,  I  cannot  see  how  it  is 
possible  to  contend  that  thej'  were  not  his  servants  as  much  as  a  man 
whom  he  might  employ  to  drive  his  carriage.  Where,  indeed,  a  man 
hires  another  man's  servant  from  him,  though  such  servant  be  em- 
plo3'ed  to  drive  w'here  the  person  hiring  pleases,  it  has  been  held  in 
Quarman  r.  Burnett,  that  the  servant  so  hired  is  not  the  servant  of  the 
person  so  hiring.  That  case  certainly  carried  the  exception  a  great 
way ;  but  there  the  servant  hired  was  ordinarily  in  the  employment  of 
the  person  from  whom  he  was  hired,  and  who  let  horses  along  with  the 
driver.  That  case  is  not  like  the  present.  The  second  question,  then, 
is  as  to  the  effect  of  Stat.  7  &  8  G.  4.  c.  75.  That  indeed  confined  the 
defendant  to  employing  as  his  servants  onl}"  individuals  of  a  particular 
class.  It  narrowed  the  number  of  persons  from  whom  he  could  select. 
But  that  is  very  different  from  the  state  of  things  created  b}'  the  Pilot 
Act,  where  a  party  must  take  the  first  pilot  who  offers  himself.  Here 
the  defendant  had  the  power  of  selection,  though  from  a  limited  num- 
ber, and  no  case  has  gone  so  far  as  to  decide  that  the  person  hired 
ceases  to  be  the  servant  of  the  person  hiring  if  he  is  necessarily  se- 
lected from  a  number,  though  limited.  I  was  much  struck  with  the 
argument  deduced  from  the  old  Statute  of  Apprenticeship.  According 
to  the  doctrine  contended  for  on  the  part  of  the  defendant,  it  would 
hardly  have  been  possible,  while  that  act  was  in  force,  to  employ  a  man 
as  a  servant.  I  do  not»  put  the  case  on  the  largeness  of  the  number 
from  which  the  selection  may  here  be  made  ;  the  principle  seems  to  me 
the  same  whether  the  number  be  five  hundred  or  five  thousand.  If 
there  be  a  power  of  selection,  and  not,  as  in  the  Pilot  Act,  a  provision 
preventing  an}'  choice,  the  person  hired  is  the  servant  of  the  person 
hiring.  At  first  I  felt  the  diflncult}-  raised  I)v  Lucey  v.  Ingram,  6  M. 
&  W.  302.  That  case,  however,  was  decided  on  the  words  of  the  Pilot 
Act,  6  G.  4.  c.  125.  It  is  true  that  the  defendant  there  came  within 
the  exemption  of  §  63  of  the  Act,  and  was  not  obliged  to  take  a  pilot. 
But  the  pilot,  under  §  72,  was  compelled  to  act  when  called  upon  ;  and 
the  court  rested  their  decision  on  the  precise  words  of  §  55,  which 
"exempts  the  owner  from  responsibility  in  respect  of  accidents  hap- 
pening by  reason  of  the  default  of  any  pilot,  acting  under  or  in  pursu- 
ance of  the  provisions  of  the  Act"  (6  M.  &  W.  316)  ;  and  they  held 
that  the  pilot  was  so  acting,  whether  the  owner  was  compelled  to  em- 
plo}'  him  or  not.  And  thev  conclude  as  follows.  "  The  case  before 
us  is  clearly  within  the  words  of  the  exempting  clause  ;  and  we  must 
therefore  hold  it  to  be  within  its  spirit  and  meaning,  unless  (which  is 
not  the  case)  some  manifest  inconvenience  or  inconsistency  should  result 
from  our  so  doing."  The  decision,  so  explained,  is  inapplicable  to  the 
present  question. 


SECT.  II.]  MARTIN   V.   TEMPERLEY,  133 

Coleridge,  J.  Though  this  case  has  been  argued  at  some  leugth 
and  with  much  ingenuity,  the  point  is  not  difficult.  Tlie  question  is, 
were  the  defendant  and  the  persons  emplo3ed  by  him  master  and 
servants?  If  they  were,  the  general  i)rinci[jle  applies.  And  the  tests 
leave  no  doubt  that  they  were.  First,  the  men  were  selected  bj'  the  de- 
fendant ;  secondly,  they  were  paid  by  him  ;  thirdly,  they  were  doing 
his  work  ;  fourthly,  they  were  under  his  control,  that  is,  in  doing  the 
work  in  the  ordinary  wa}-.  It  is  said  that  a  difference  arises  where  the 
workman  is  paid  so  much  for  doing  the  whole  job.  But  the  defendant 
might  pay  either  for  a  given  time  or  a  given  work  ;  and  the  men  here 
were  as  much  under  the  defendant's  control  as  a  gentleman's  coachman 
is  under  that  of  his  master.  The  master  cannot  order  the  coachman  to 
do  an  illegal  act,  as  to  drive  furioush',  or  on  the  wrong  side.  But,  sub- 
ject to  that,  the  master  has  the  control  over  the  coachman.  So  here 
the  defendant  had  the  control  over  tiie  persons  navigating  the  barge, 
subject  to  the  rules  of  the  river.  The}-  are,  principally,  selected  by 
him.  Suppose  the  owner  of  a  barge,  seeing  a  number  of  watermen  on 
the  side  of  the  river,  chose  to  hire  one  who  was  incompetent,  would  not 
he  have  made  the  selection?  Then,  if  the  men  here  were  the  defend- 
ant's servants,  on  what  grounds  is  the  defence  put?  On  two  only.  First, 
that  the  defendant  was  bound  to  select  from  a  particular  class  ;  secondly, 
that  he  was  not  allowed  to  do  the  work  for  himself.  But  neither  of 
these  grounds  is  sufficient.  As  to  the  first,  it  is  true  that  the  defendant 
w^as  bound  to  select  from  a  class  ;  and  so  we  all  practicalh'  are  limited 
by  the  necessit}'  of  choosing  persons  of  skill  and  fitness  ;  but,  if  we 
can  choose  from  a  class,  whether  large  or  small,  our  contract  places  us 
in  the  situation  of  a  party  responsible  for  the  acts  of  those  whom  he 
does  choose.  And,  as  to  the  defendant  not  being  able  to  do  the  work 
for  himself,  the  law,  for  the  public  safet}',  imposes  a  qualification,  and 
makes  the  apprenticeship  a  test  of  fitness.  Though  the  defendant  was 
obliged  to  employ  one  qualified  person,  he  still  made  those  whom  he 
did  employ  his  servants  by  the  contract.  Both  grounds  of  defence 
therefore  fail.  Mule  dUcharged. 


134       KEEDIE   V.   LONDON   AND    NORTH    WESTERN    RY.    CO.       [CHAP.  IL 


REEDIE   V.    LONDON   AND   NORTH    WESTERN   RAILWAY 

COMPANY. 

HOBBIT   V.    LONDON   AND   NORTH   WESTERN   RAILWAY 

COMPANY. 

Exchequer.     1849. 

[4  Exch.  244.] 

This  was  an  action  by  the  widow  and  administratrix  of  a  person  who 
was  killed  while  passing  under  a  viaduct  in  course  of  construction,  as 
part  of  a  railway  from  Leeds  to  Dewsbury.  The  action  was  brought 
to  recover  compensation,  for  the  benefit  of  herself  and  her  children 
under  the  provisions  of  the  9  «&  10  Vict.  c.  93.  The  declaration  stated 
that  the  defendants  were  possessed  of  a  viaduct  over  the  Gomersall 
and  Dewsbury  turnpike-road,  such  viaduct  being  part  of  a  railway  then 
in  course  of  construction  between  Dewsbury'  and  Leeds ;  yet  the 
defendants  conducted  themselves  in  making  the  said  archway  over  the 
said  turnpike  road  so  negligently  that,  by  reason  thereof,  a  large 
stone,  parcel  of  the  materials  used  in  the  construction  of  the  said  arch- 
way, fell  on  the  plaintiffs  husband  as  he  was  passing  along  the  road, 
whereby  he  was  killed. 

The  pleas  were  first,  not  guilty  ;  secondly,  that  the  defendants  were 
not  making  the  said  archwaj'  in  manner  and  form,  &c.  Upon  which 
pleas  issues  were  joined.  At  the  trial,  before  Cresswell,  J.,  at  the 
last  York  Summer  Assizes,  the  material  facts  proved  were  as  follows : 
On  the  30th  of  June,  1845,  an  Act  of  Parliament,  intituled  "The 
Leeds,  Dewsbury,  and  Manchester  Railway-  Act,  1845,"  received  the 
Royal  assent.  B}'  the  provisions  of  that  Act,  a  compan}'  was  incorpor- 
ated in  the  usual  wa}",  for  the  purpose,  among  other  objects,  of  forming 
the  railway  in  question.  By  an  indenture,  dated  the  29th  of  Septem- 
ber, 1846,  made  between  the  company  of  the  one  part,  and  Joseph 
Crawshaw  and  Richard  Crawshaw  of  the  other  part,  the  Messrs.  Craw- 
shaw  covenanted  with  the  company  that  the}'  would,  in  consideration 
of  a  sum  of  £55,000,  to  be  paid  as  therein  mentioned,  make  and  com- 
plete a  portion  of  the  railway  described  in  the  indenture,  of  the  length 
of  3830  yards,  or  thereabouts,  with  all  excavations,  embankments, 
bridges,  tunnels,  viaducts,  roads,  fences,  and  other  works  connected 
therewith,  according  to  the  specification  referred  to.  Amongst  other 
stipulations  in  the  deed,  it  was  provided  that  the  works  were  to  be 
done  b}'  the  contractors  ;  but  the  company  had  a  general  right  of  watch- 
ing the  progress,  and,  if  the  contractors  employed  incompetent  work- 
men, the  compan}'  had  the  power  of  dismissing  them.  Under  this 
contract,  Messrs.  Crawshaw  proceeded  to  execute  tlie  works,  and, 
while  they  were  in  progress,  viz.  on  the  9th  July,  1847,  another  Act 


Sf:CT.  II.]       REEDIE    V.    LONDON    AND    NORTH    WESTERN    RY.    CO.        135 

received  the  Royal  assent,  wherein'  it  was  enacted,  that  the  said  Leeds, 
DewshiiiT,  and  Manciiesler  Railway*,  with  all  and  singular  tlie  under- 
takings thereof,  as  well  those  which  had  been  commenced  as  those 
which  had  not,  and  all  the  real  and  personal  estate  of  the  said  com- 
pany, should  (subject  to  the  existing  debts,  liabilities,  and  contracts  of 
the  same  company)  be  vested  in  the  London  and  Nortli  Western  Rail- 
way Company,  and  might  be  lawfull}-  executed,  completed,  held, 
and  enjoyed  by  them,  in  the  same  way  as  they  might  have  been  ex- 
ecuted, completed,  held,  and  enjoyed  b^-  the  said  Leeds,  Dewsbur}', 
and  Manchester  Company  if  that  Act  had  not  passed.  After  the  pass- 
ing of  tliis  second  Act,  Messrs.  Crawshaw  continued  to  proceed  with 
their  work,  and  in  the  course  of  it,  by  the  negligence  of  some  of  the 
contractor's  workmen,  a  heav}'  stone  fell  from  a  travelling  truck  upon 
the  plaintiffs  husband,  who  was  passing  along  the  road  underneath, 
and  occasioned  his  death.  Upon  these  facts,  a  verdict  was  found  for 
the  plaintiff,  leave  being  reserved  for  the  defendants  to  move  to  enter 
a  nonsuit,  if  the  court  should  be  of  opinion  that  the  action  would  not 
lie. 

A  rule  nisi  having  been  obtained  accordingh',  against  this  rule,  in 
Hilary  Vacation  last  (February  13  and  14),  cause  was  shown  by 

3Ia)'tin,  Pickering,  and  //.  Hill. 

Knowles,  and  Hall,  in  support  of  the  rule.  Cur  adv.  vult. 

The  judgment  of  the  court  in  the  preceding  cases  was  now  given  by 
RoLFE,  B.  (His  Lordship  after  stating  the  pleadings  and  facts  in 
Reedie  v.  The  North  Western  Railway  Company,  as  above  set  forth, 
proceeded):  —  It  appears  to  us  quite  clear,  that  after  the  passing  of 
the  second  act,  the  contract  with  Messrs.  Crawshaw  was  transferred  to 
the  present  defendants,  so  as  to  make  them  liable  to  the  same  extent 
precisely,  as  the  original  Leeds,  Dewsbur}-,  and  Manchester  Company 
would  have  been  liable,  if  the  second  act  had  not  passed.  But,  after 
full  consideration  of  the  subject,  we  are  of  opinion  that  neither  the 
defendants  nor  the  original  company  are  liable. 

In  the  case  of  Quarman  v.  Burnett,  this  court  decided  (adopting  the 
opinion  of  Lord  Tenterden  and  Mr.  Justice  Littledale,  in  Laugher  v. 
Pointer),  that  the  liability  to  make  compensation  for  an  injury  arising 
from  the  neglect  of  a  person  driving  a  carriage,  attaches  onlj-  on  the 
driver,  or  on  the  person  employing  him.  The  liability  of  any  one, 
other  than  the  party  actually  guilty  of  any  wrongful  act,  proceeds  on 
the  maxim,  "  Qui  facit  per  alium  facit  per  se."  The  party  employing 
has  the  selection  of  the  party  employed,  and  it  is  reasonable  that  he 
who  has  made  choice  of  an  unskilful  or  careless  person  to  execute  his 
orders,  should  be  responsible  for  any  injury  resulting  from  the  want  of 
skill  or  want  of  care  of  the  person  employed  ;  but  neither  the  principle 
of  the  rule,  nor  the  rule  itself,  can  apply  to  a  case  where  the  party 
sought  to  be  charged  does  not  stand  in  the  character  of  employer  to 
the   party  by  whose   negligent   act   the  injury  has   been   occa«ione4- 


136        REEDIE   V.   LONDON   AND   NORTH   WESTERN   RY.   CO.      [CHAP.  IL 

The  doctrine  of  Quarman  v.  Burnett  has  since  been  acted  on  in  this 
court,  in  the  ease  of  Rapson  v.  Cubitt,  and  in  the  court  of  Queen's 
Bench,  in  Milligan  y.  Wedge,  and  again  in  Allen  v.  Hayward. 

By  these  authorities  we  must  consider  the  law  to  have  been  settled ; 
and  the  only  question  is,  whether  the  law,  so  settled,  is  applicable  to 
the  facts  of  this  case. 

To  show  it  was  not,  it  was  argued  b}-  the  counsel  for  the  plaintiff, 
that  there  is  a  recognized  distinction  on  this  subject  between  injuries 
arising  from  the  careless  or  unskilful  management  of  an  animal,  or 
other  personal  chattel,  and  an  injury  resulting  from  the  negligent 
management  of  fixed  real  property.  In  the  latter  case,  it  was  con- 
tended, the  owner  is  responsible  for  all  injuries  to  passers-b}'  or  others, 
howsoever  they  ma}'  have  been  occasioned  ;  and  here  it  was  said  the 
defendants  were,  at  the  time  of  the  accident,  the  owners  of  the  railway, 
and  so  are  the  parties  responsible. 

This  distinction  as  to  fixed  real  property  is  adverted  to  by  Mr.  Jus- 
tice Littledale,  in  his  very  able  judgment  in  Laugher  v.  Pointer, 
5  B.  &  C,  at  pages  559  and  560  ;  and  it  is  also  noticed  in  the  judgment 
of  this  court,  in  Quarman  v.  Burnett.  But  in  neither  of  these  cases 
was  it  necessar}'  to  decide  whether  such  a  distinction  did  or  did  not 
exist.  The  case  of  Bush  v.  Steinman,  where  the  owner  of  a  house  wa.s 
held  liable  for  the  act  of  a  servant  of  a  sub-contractor,  acting  under  a 
builder  employed  by  the  owner,  was  a  case  of  fixed  real  property. 
That  case  was  strongl}-  pressed  in  argument  in  support  of  the  liabilit}- 
of  the  defendants,  both  in  Laugher  v.  Pointer  and  Quarman  v.  Burnett; 
and  as  the  circumstances  of  those  two  cases  were  such  as  not  to  make 
it  necessary'  to  overrule  Bush  xk  Steinman,  if  any  distinction  in  point 
of  law  did  exist,  in  cases  like  the  present,  between  fixed  property  and 
ordinary  movable  chattels,  it  was  right  to  notice  the  point.  But,  on 
full  consideration,  we  have  come  to  the  conclusion,  that  there  is  no 
such  distinction,  unless,  perhaps,  in  cases  where  the  act  complained  of 
is  such  as  to  amount  to  a  nuisance  ;  and  in  fact,  that,  according  to  the 
modern  decision,  Bush  v.  Steinman  must  be  taken  not  to  be  law,  or,  at 
all  events,  that  it  cannot  be  supported  on  the  ground  on  which  the 
judgment  of  the  court  proceeded. 

It  is  not  necessary  to  decide  whether,  in  any  case,  the  owner  of  real 
property,  such  as  land  or  houses,  ma}'  be  responsible  for  nuisances 
occasioned  b}'  the  mode  in  which  his  property  is  used  by  others  not 
standing  in  the  relation  of  servants  to  him,  or  part  of  his  family.  It 
may  be  that  in  some  cases  he  is  so  responsible.  But  then  his  liability 
must  be  founded  on  the  principle  that  he  has  not  taken  due  care 
to  prevent  the  doing  of  acts  which  it  was  his  dut}'  to  prevent,  whether 
done  by  his  servants  or  others.  If,  for  instance,  a  person  occupyijig  a 
house  or  a  field  should  permit  another  to  carry  on  there  a  noxious  trade, 
so  as  to  be  a  nuisance  to  his  neighbors,  it  may  be  that  he  would  be 
responsible,  though  the  acts  complained  of  were  neither  his  acts  nor  the 
acts  of  his  servants.     He  would  have  violated  the  rule  of  law,  "  Sic 


SECT.  II.]        REEDIE   V.   LONDON   AND   NORTH   WESTERN   RY.   CO.      137 

utere  tuo  ut  alienum  iion  licdas."  This  is  referred  to  by  Mr.  Justice 
Cresswell,  in  delivering  the  judgment  of  the  Court  of  Common  Bench,  in 
Rich  V.  Basterfield,  4  C.  1>.  iJep.  802,  as  the  principle  on  which  parties 
possessed  of  fixed  property'  are  responsible  for  acts  of  nuisance 
occasioned  by  the  mode  in  which  the  property  is  enjoyed.  And, 
possibly,  on  some  such  principle  as  this,  the  case  of  Bush  v.  Steinman 
may  be  supported.  But  certainly  that  doctrine  cannot  be  applied  to 
the  case  now  before  us.  The  wrongful  act  here  could  not  in  any 
possible  sense  be  treated  as  a  nuisance.  It  was  one  single  act  of 
negligence ;  and,  in  such  a  case,  there  is  no  principle  for  taking  any 
distinction  b}'  reason  of  the  negligence  having  arisen  in  reference  to 
real  and  not  to  personal  property. 

If  the  defendants  had  employed  a  contractor,  carrying  on  an  inde- 
pendent business,  to  repair  their  engines  or  carriages,  and  the  con- 
tractor's workmen  had  negligently  caused  a  heavy  piece  of  iron  to  fall 
on  a  b3"stander,  it  would  appear  a  strange  doctrine  to  hold  that  the 
defendants  were  responsible.  Mr.  Justi<e  Littledale,  in  his  very  able 
judgment  in  Laugher  v.  Pointer,  observed  (5  B.  &  C.  558)  that  the 
law  does  not  recognize  a  several  liability  in  two  principals  who  are 
unconnected  ;  if  they  are  jointly  liable,  you  may  sue  either,  but  you 
cannot  have  two  separately  liable.  This  doctrine  is  one  of  general 
application,  irrespective  of  the  nature  of  the  employment;  and,  appl}'- 
ing  the  principle  to  the  present  case,  it  would  be  impossible  to  hold 
the  present  defendants  liable,  without  the  same  time  deciding  that 
the  contractors  are  not  liable,  which  it  would  be  impossible  to  be 
contended. 

It  remains  onl}'  to  be  observed  that  in  none  of  the  more  modern 
cases  has  the  alleged  distinction  between  real  and  personal  property 
been  admitted.  In  Milligan  v.  Wedge,  Lord  Denman  expresses  doubt 
as  to  the  existence  of  such  a  distinction  in  any  case  ;  and,  in  the  more 
recent  case  of  Allen  v.  Hayward,  the  judgment  of  the  court  proceeded 
expressly  on  the  ground  that  the  contractor,  in  a  case  like  the  present, 
is  the  onl}'  party  responsible.  The  last  case  so  closely  resembles  the 
present  that,  even  if  we  had  not  considered  the  decision  right,  we 
should  probably  have  felt  bound  by  it.  But  we  see  no  reason  to  doubt 
its  perfect  correctness.  It  seems  to  follow  as  a  necessar\'  corollary 
from  the  principles  of  the  preceding  cases,  and  entirelj'  to  govern 
this. 

Our  attention  was  directed  during  the  argument  to  the  provisions 
of  the  contract,  whereby  the  defendants  had  the  power  of  insisting  on 
the  removal  of  careless  or  incompetent  workmen,  and  so  it  was  con- 
tended the}'  must  be  responsible  for  their  non-removal.  But  this 
power  of  removal  does  not  seem  to  us  to  var^'  the  case.  The  workman 
is  still  the  servant  of  the  contractor  onl}',  and  the  fact  that  the  defend- 
ants might  have  insisted  on  his  removal  if  the}'  thouglit  him  careless 
or  unskilful  did  not  make  him  tlieir  servant.  In  Quarman  v.  Burnett 
the  particular  driver  was  selected  by  the  defendants  ;  but  this  was  held 


188  MAY   V.   BLISS   AND   EVERETT.  [CHAP.  IL 

not  to  affect  the  liability  of  the  driver's  master,  or  to  create  an}-  respon- 
sibility in  the  defendants;  and  the  same  principle  applies  here.  On 
these  grounds  we  are  of  opinion  that  tiiis  rule  must  be  made  absolute. 

Mule  absolute. 


MAY  V.  BLISS   AND  EVERETT. 

Supreme  Court  of  Vermont.     1850. 

[22  Vt.  477.] 

Trespass  for  taking  a  quantit}^  of  boards.  The  defendant  Everett 
being  an  infant,  under  the  age  of  twenty-one  years,  a  guardian  ad 
litem  was  appointed,  at  whose  request  judgment  was  rendered  against 
him,  as  by  default.  The  defendant  Bliss  pleaded  the  general  issue. 
Trial  by  the  court,  December  Term,  1849,  Redfield,  J.,  presiding. 
It  appeared  that  one  Homer,  who  occupied  a  saw  mill,  sawed  boards 
for  Bliss,  which  were  afterwards  piled  in  the  mill  yard.  The  plaintiff 
also  owned  boards,  which  were  piled  near  the  boards  of  Bliss.  Bliss 
sent  Everett,  who  was  his  hired  man,  with  a  team,  to  draw  away  his 
boards,  and  directed  him  to  call  upon  Homer,  and  he  would  inform 
him  which  boards  belonged  to  Bliss.  Everett  called  upon  Homer,  who 
gave  such  directions  to  him  that  he  took  away  all  the  boards  of  Bliss 
and  also  the  boards  of  the  plaintiff,  supposing  he  was  following  the 
directions  of  Homer,  and  that  he  was  taking  the  boards  of  Bliss  and 
none  other.  Subsequentl}-,  upon  inquiry  being  made  b}'  the  plaintiff, 
Bliss  became  satisfied  that  he  had  the  plaintiff's  boards,  and  he  sent 
word  to  the  plaintiff  that  he  had  found  an  excess  among  his  boards  of 
980  feet,  which  he  would  draw  back  to  the  plaintiff,  or  pa}'  him  for 
them  the  price  of  poor  hemlock.  The  number  of  feet  of  the  plaintiff's 
boards  which  were  taken  was  nearl}'  2,000,  of  a  poor  qualit}'  of  pine, 
but  much  more  valuable  than  hemlock.  Bliss,  also,  at  some  time,  told 
the  plaintiff  that  if  he  would  examine  the  boards  drawn  by  Everett, 
and  find  those  belonging  to  him  among  them,  he  would  draw  them 
back,  or  account  for  them  ;  but  the  plaintiff  declined  making  the  ex- 
amination, upon  the  ground,  as  the  court  inferred,  that  he  did  not 
suppose  that  either  he  or  Bliss  could  determine  which  boards  had 
belonged  to  the  plaintiff.  There  was  testimon}'  tending  to  prove  that 
Bliss  had  kept  on  hand  about  1,*200  feet  of  the  boards  drawn  b}' 
Everett,  and  which  he  supposed  were  those  which  had  belonged  to 
the  plaintiff,  and  that  they  were  still  read}'  to  be  delivered  to  the 
plaintiff.  The  testimony  was  not  entirely  satisfactory  as  to  whether 
there  were  not  more  of  the  plaintiff's  boards  taken  by  Everett.  The 
court  decided  that  Bliss,  having  sent  his  hired  man  to  follow  such 
instructions  as  he  might  receive  from  Homer,  and  he  having  received 
such  instructions  as  induced  him  to  take  away  the  plaintiff's  boards,  it 


SECT    II.J        PHILADELrillA    AND    READING   R.    R.    CO.    V.   DERBY.        139 

was  the  same  as  if  Bliss  had  given  the  instructions  himself,  and  that 
BHss  was  responsible,  whether  the  fault  were  in  Homer,  in  not  giving 
sufficiently  specific  instructions,  or  in  Everett,  in  not  properly  appre- 
hending or  not  following  them,  the  same  as  if  Bliss  had  done  the  whole 
himself  and  taken  the  plaintiff's  boards  b\'  mistake.  Judgment  was 
according!}-  rendered  for  the  plaintiff  for  the  value  of  the  boards  taken. 
Exceptions  by  Bliss.  Damages  were  assessed  against  Everett  equal  to 
the  amount  of  the  damages  for  which  judgment  was  rendered  against 
Bliss. 

Ormsbt/,  for  defendant. 

Parker^  for  plaintiff. 

By  the  Colkt.  We  think  the  decision  of  the  court  below  upon  the 
main  question  of  the  liability  of  Bliss,  and  the  reasons  assigned  in  the 
bill  of  exceptions,  are  correct.  Indeed  the  question  as  to  the  partici- 
pation of  Bliss  in  the  act  of  Everett  is  chiefly  matter  of  fact ;  and  the 
case  having  been  tried  by  the  court,  and  they  having  found  his  partici- 
pation, it  is  difficult  to  revise  that  decision  in  the  matter  of  law,  without 
reversing  also  the  finding  of  the  ftxcts.  But  to  the  extent  of  the  reasons 
stated  by  the  County  Court,  this  court  sec  no  reason  to  doubt  tiieir  per- 
fect soundness.^  Judymetd  affirmed.'^ 


PHILADELPHIA    &   READING    RAILPOAD    COMPANY, 

l*LAiNTiiF    IN   P2kror,    V.  DERBY, 

SuPRElttE  Court  of  the  United  States.     1852. 
[14  How.  468.] 

This  case  was  brought  up,  by  writ  of  error,  from  the  Circuit  Court 
of  the  United  States  for  the  Eastern  District  of  Pennsylvania. 

It  was  an  action  on  the  case  brought  b}-  Derby  for  an  injury  suffered 
upon  the  railroad  of  the  plaintiff  in  error. 

The  declaration,  in  ten  counts,  was,  in  substance,  that  on  the  15th 
day  of  June,  1848,  the  defendants,  being  the  owners  of  the  railroad,  and 
of  a  certain  car  engine  called  the  Ariel,  received  the  plaintiff  into  the 
said  car,  to  be  safely  carried  therein,  upon,  and  over  the  said  railroad, 
whereby  it  became  the  duty  of  the  defendants  to  use  proper  care  and 
diligence  that  the  plaintiff  should  be  safely  and  securely  carried,  yet, 
that  the  defendants  not  regarding  their  duty  in  that  behalf,  conducted 
themselves  so  negligently  by  their  servants,  that,  by  reason  of  such 
negligence,  while  the  car  engine  Ariel  was  upon  the  road,  and  the 
plaintiff  therein,  he  was  precipitated  therefrom  upon  the  ground,  and 
greatly  injured.     Defendants  pleaded  not  guilty. 

^  A  passage  as  to  procedure  is  omitted.  — Ed. 

2  See  Andrusi;.  Howard,  36  Vt.  248  (186.3).  — Ed. 


140       PHILADELPHIA   AND    READING   R.    R.    CO.    V.   DERBY.        [CHAP.  XL 

On  the  22d  of  April,  1851,  the  cause  came  on  to  be  tried,  and  the 
evidence  was,  in  substance,  as  follows  :  — - 

In  the  month  of  June,  1848,  the  plaintiff,  being  a  stockholder  in  the 
said  railroad  compan}',  came  to  the  city  of  Philadelphia,  for  the  purpose 
of  inquiring  into  its  affairs,  on  his  own  account  and  as  the  representa- 
tive of  other  stockholders.  On  the  15th  of  June,  1848,  the  plaintiff 
accompanied  John  Tucker,  Esq.,  the  president  of  the  said  company, 
over  the  railroad,  for  the  purpose  of  viewing  it  and  the  works  of  the 
compan}'. 

They  proceeded  in  the  ordinary  passenger  train  of  the  company  from 
the  cit}'  of  Philadelphia  (the  plaintiff  paying  no  fare  for  his  passage)  as 
far  as  the  cit}'  of  Reading. 

On  arriving  at  Reading,  the  plaintiff  inspected  the  machine-shops 
of  the  defendants  there  situate,  and  remained  for  that  purpose  about 
half  an  hour  after  the  departure  of  the  passenger  train  towards  Potts- 
ville,  which  latter  place  is  about  the  distance  of  ninety-two  miles  from 
Philadelphia. 

By  order  of  Mr.  Tucker,  a  small  locomotive  car  engine  called  the 
Ariel  was  prepared  for  the  purpose  of  carrying  the  plaintiff  and  Mr. 
Tucker  further  up  the  road.  This  engine  was  not  constructed  or  used 
for  the  business  of  the  said  defendants,  but  was  kept  for  the  use  of  the 
president  and  other  officers  of  the  company*,  their  friends  and  guests. 

On  this  engine,  the  plaintiff  and  Mr.  Tucker,  accompanied  by  the 
engineer  and  fireman,  and  a  paymaster  of  defendants,  proceeded,  fol- 
lowing the  passenger  train,  until  they  reached  Port  Clinton,  a  station 
on  the  line  of  the  railroad. 

After  leaving  Port  Clinton,  when  about  three  miles  distant  from  it, 
going  round  a  curve,  the  passengers  on  the  Ariel  saw  another  engine, 
called  the  Lycoming,  of  which  S.  P.  Jones  was  the  conductor,  ap- 
proaching on  the  same  track.  The  engineer  of  the  Ariel  immediately 
reversed  his  engine,  and  put  down  the  brake.  Mr.  Tucker,  the  plain- 
tiff, and  the  fireman,  jumped  from  the  Ariel  to  avoid  the  impending 
collision.  After  they  had  jumped  the  engineer  also  left  the  Ariel, 
having  done  all  he  could  do  to  stop  it.  The  plaintiff,  in  attempting 
to  jump,  fell,  and  received  the  injury  of  which  he  complains. 

The  engineer  of  the  Lycoming,  when  he  saw  the  approach  of  the 
Ariel,  reversed  his  engine  and  put  down  the  brake.  He  did  not  leave 
the  Lycoming  till  affer  the  collision.  At  the  time  of  the  collision,  the 
Lycoming  was  backing.     The  engines  were  but  slightlj'  injured  by  it. 

On  the  night  of  the  14th  or  the  morning  of  the  loth  of  June,  a  bridge 
on  the  line  of  the  railroad  above  Port  Clinton  was  burnt.  In  consequence 
of  this,  one  of  the  tracks  of  the  railroad  was  blocked  up  b}'  empty  cars 
returning  to  the  mines,  and  stopped  by  the  destruction  of  the  bridge. 
For  this  reason  a  single  track  only  could  be  used  for  the  business  of 
the  road  between  Port  Clinton  and  the  burnt  bridge. 

Lewis  Kirk,  an  officer  of  the  said  company  (master  machinist  and 
foreman),  went  on  in  the  passenger  cars  from  Reading  towards  Potts- 


SECT.  II.]        rillLADHLririA    AND    READING    K.    R.    CO.    V.    DERBY.        141 

ville,  informing  tlie  plaintiff  and  Mr.  Tucker  that  he  would  give  the 
proper  orders  to  liave  the  track  kept  clear  for  the  Ariel.  On  arriving 
at  Port  Clinton  he  did  give  an  order  to  Edward  Burns,  despatcher  at 
Port  Clinton  (an  officer  of  said  company,  charged  with  the  duty  of 
controlling  the  starting  of  engines),  that  no  car  should  be  allowed  to 
go  over  the  road  until  he  the  said  Kirk  returned. 

This  order  was  communicated  in  express  terms  by  Burns  to  Jones, 
the  conductor  of  the  Lycoming.  Jones  replied  that  he  would  go,  and 
would  take  the  responsibility,  and,  contrary-  to  his  orders,  did  go  up 
the  road  towards  the  burnt  bridge,  and  on  his  return  met  the  Ariel, 
and  the  collision  ensued,  as  above  stated.  Jones  had  the  reputation  of 
being  a  careful  and  competent  person,  no  previous  disobedience  of 
orders  by  him  had  ever  occurred,  and  he  was  discharged  by  the  defend- 
ants immediateh'  after  the  accident,  and  because  of  it. 

On  the  trial  the  plaintiff  below  requested  the  court  to  charge  the 
JHi-y  :  — 

I.  That  if  the  plaintiff  was  lawfully  upon  the  railroad  of  the  defend- 
ants at  the  time  of  the  collision,  b3'  the  license  of  the  defendants,  and 
was  then  and  there  injured  b}'  the  negligence  or  disobedience  of  orders  of 
the  compan3-'s  servants,  then  and  there  employed  on  the  said  railroad, 
the  defendants  are  liable  for  the  injury  done  to  the  plaintiff  by  such 
collision, 

n.  That  if  the  defendants,  by  their  servants,  undertook  to  convey 
the  plaintiff  along  the  Reading  Railroad,  in  the  car  Ariel,  and  while  so 
conveying  him,  through  the  gross  negligence  of  the  servants  of  the 
company  then  and  there  employed  on  the  said  railroad,  the  collision 
occurred  by  which  the  plaintiff  was  injured,  that  the  defendants  are 
liable  for  the  injury  done  to  the  plaintiff  b\'  such  collision,  although 
no  compensation  was  to  be  paid  to  the  company-  for  such  convey- 
ance of  the  plaintiff. 

III.  That  if  the  collision,  by  which  the  plaintiff  was  injured,  was 
occasioned  by  the  locomotive  Lycoming,  then  driven  negligentl}-  or  in 
disobedience  of  orders  upon  the  said  road  by  J.  P.  Jones,  one  of  the 
company's  servants,  then  having  control  or  command  of  the  said  loco- 
motive, that  the  defendants  are  liable  for  the  injur}'  to  the  plaintiffs, 
caused  by  such  collision. 

And  the  counsel  for  the  defendants  below  requested  the  court  to 
charge  the  jury  :  — 

1.  That  the  damages,  if  any  are  recoverable,  are  to  be  confined  to 
the  direct  and  immediate  consequences  of  the  injur}-  sustained. 

2.  That  if  the  jury  believe  the  plaintiff"  had  paid  no  fare,  and  was 
passing  upon  the  railroad  of  the  defendant  as  an  invited  guest,  in  order 
to  entitle  him  to  recover  damages  he  must  prove  gross  negligence,  which 
is  the  omission  of  that  care  which  even  the  most  thoughtless  take  of 
their  own  concerns. 

3.  That  the  defendants  would  be  liable  in  damages  to  a  passenger 
who  had  paid  passage-money  upon  their  contract  to  deliver  him  safely, 


142        PHILADELPHIA   AND   READING   R,    R.    CO.    V.   DERBY.        TCHAP.  IL 

for  slight  negligence,  but  to  an  invited  guest,  who  paid  no  fare  or 
passage-money,  the}'  will  not  be  responsible  unless  the  jury  believe  that 
there  was  not  even  slight  diligence  on  the  part  of  the  agents  of  the 
defendants. 

4.  That  the  employer  is  not  responsible  for  the  wilful  act  of  his 
servant. 

5.  That  if  the  jury  believe  that  the  conductor  of  the  engine  Lyco- 
ming wilfully,  and  against  the  express  orders  of  the  officer  of  the  com- 
pany communicated  to  him,  by  running  his  engine  upon  the  track  above 
Poi't  Clinton,  caused  the  collision,  the  defendants  are  not  responsible 
for  any  injury  or  loss  resulting  from  such  wilful  disobedience. 

6.  That  if  the  jurj'  believe  that  every  reasonable  and  proper  precau- 
tion was  taken  to  have  the  track  of  the  railroad  clear  for  the  passage 
of  the  Ariel,  and  collision  ensued  solely  by  reason  of  the  wilful  dis- 
obedience of  the  conductor  of  the  L3'coming,  and  of  the  express  orders 
dulv  given  by  an  agent  of  the  company,  the  plaintiff  cannot  recover. 

7.  That  if  the  jury  believe  that  the  conductor  of  the  Lycoming,  and 
all  the  officers  of  the  company  in  any  wise  connected  with  the  collision, 
were  carefull}'  and  prudenth'  selected,  and  that  the  collision  ensued 
and  the  injur}'  resulted  to  the  plaintiff,  an  invited  guest,  by  the  wilful 
disobedience  of  one  of  them  to  an  order  duly  communicated,  then  the 
plaintiff  cannot  recover. 

The  learned  judge  charged  the  jury  as  requested,  on  all  the  points 
offered  by  the  plaintiff. 

And  the  learned  judge  charged  on  the  first  and  second  points  offered 
by  the  defendants,  as  requested,  and  also  on  the  third  point  of  the 
defendants,  with  the  explanation,  that  though  all  the  other  agents  of 
the  defendants  acted  with  diligence,  yet  if  one  of  the  agents  used  no 
diligence  at  all,  then  the  defendants  could  not  be  said  to  have  shown 
slight  diligence. 

As  to  the  fourth  point,  the  learned  judge  charged  as  requested  by  the 
defendants,  with  this  explanation,  that  though  the  master  is  not  liable 
for  the  wilful  act  of  his  servant,  not  done  in  the  course  of  his  employ- 
ment as  servant,  yet  if  the  servant  disobeys  an  order  relating  to  his  busi- 
ness, and  injury  results  from  that  disobedience,  the  master  is  liable, 
for  it  is  his  duty  to  select  servants  who  will  obey.  The  disobedience 
in  this  case  is  the  ipsa  7iegligentia,  for  it  is  not  pretended  by  the  defend- 
ants that  the  Lycoming  was  intentionally  driven  against  the  Ariel. 

On  the  fifth,  sixth,  and  seventh  points  of  the  defendants,  the  learned 
judge  refused  to  charge  as  requested. 

The  learned  judge  further  said,  that  it  is  admitted  that  the  plaintiff 
was  injured  through  the  act  of  Jones,  the  conductor  of  the  Lycoming, 
that  the  plaintiff  was  lawfully  on  the  road  by  the  license  of  the  defend- 
ants ;  then,  in  this  view  of  the  case,  whether  he  paid  fare  or  not,  or 
was  the  guest  of  the  defendants,  made  no  difference  as  to  the  law 
of  the  case. 

The  jury  found  a  verdict  for  the  plaintiff,  and  assessed  the  damages 
at  three  thousand  dollars. 


SECT.  II.]        PHILADELPHIA    AND   READING   R.    R.    CO.   V.    DERBY.        143 

A  writ  of  error  brought  the  case  np  to  this  court. 

It  was  argued  b^^  Mr.  Campbell  and  Mr.  Fisher,  for  the  plaintiff  in 
error,  and  Mr.  Birmeij  and  Mr.  W/icwton,  for  the  defendant  in  error. 

Mr.  JiisLice  Grikr  delivered  the  opinion  of  the  court.^ 

The  rule  of  i'espoudeat  superior,  or  that  the  master  shall  be  eiv- 
ill}'  liable  for  the  tortious  acts  of  his  servant,  is  of  universal  applica- 
tion, whether  the  act  be  one  of  omission  or  commission,  whether  negli- 
gent, fraudulent,  or  deceitful.  If  it  be  done  in  the  course  of  his 
employment,  the  master  is  liable  ;  and  it  makes  no  difference  that 
the  master  did  not  authorize,  or  even  know  of  the  servant's  act  or 
neglect,  or  even  if  he  disapproved  or  forbade  it,  he  is  equalh'  liable,  if 
the  act  be  done  in  the  course  of  his  servant's  employment.  See  Story 
on  Agenc}',  §  452  ;  Smith  on  Master  and  Servant,  152. 

There  may  be  found,  in  some  of  the  numerous  cases  reported  op 
this  subject,  dicta  which,  when  severed  from  the  context,  might  seem 
to  countenance  the  doctrine  that  the  master  is  not  liable  if  the  act  of 
his  servant  was  in  disobedience  of  his  orders.  But  a  more  careful 
examination  will  show  that  they  depended  on  the  question  whether  the 
servant,  at  the  time  he  did  the  act  complained  of,  was  acting  in  the 
course  of  his  employment,  or,  in  other  words,  whether  he  was  or  was 
not  at  the  time  in  the  relation  of  servant  to  the  defendant. 

The  case  of  Sleuth  v.  Wilson,  9  Car.  &  Payne,  607,  states  the  law  in 
such  cases  distinctly  and  correcth'.  .  .  .'•^ 

Although,  among  the  numerous  cases  on  this  subject,  some  may  be 
found  (such  as  the  case  of  Lamb  v.  Palk,  9  C.  &  P.  629)  in  which  the 
court  have  made  some  distinctions  which  are  rather  subtile  and  astute 
as  to  when  the  servant  may  be  said  to  be  acting  in  the  employ  of  his 
master;  yet  we  find  no  case  wdiich  asserts  the  doctrine  that  a  master 
is  not  liable  for  the  acts  of  a  servant  in  his  employment,  when  the  par- 
ticular act  causing  the  injury-  was  done  in  disregard  of  the  general  orders 
or  special  command  of  the  master.  Such  a  qualification  of  the  maxim 
respondeat  superior  would,  in  a  measure,  nullify  it.  A  large  propor- 
tion of  the  accidents  on  railroads  are  caused  b}'  the  negligence  of  the 
servants  or  agents  of  the  company.  Nothing  but  the  most  stringent 
enforcement  of  discipline,  and  the  most  exact  and  perfect  obedience  to 
every  rule  and  order  emanating  from  a  superior,  can  insure  safety  to 
life  and  property.  The  intrusting  such  a  powerful  and  dangerous  en- 
gine as  a  locomotive  to  one  who  will  not  submit  to  control,  and  render 
implicit  obedience  to  orders,  is  itself  an  act  of  negligence,  the  "  ccmsa 
causans"  of  the  mischief;  while  the  proximate  cause,  or  the  ipsa 
negligentia  which  produces  it,  may  truh'  be  said,  in  most  cases,  to  be 
the  disobedience  of  orders  b}-  the  servant  so   intrusted.     If  such  dis- 

^  After  stating  the  case  and  discussing  the  fact  that  the  person  injured  was  a 
stockholder  riding  at  the  invitation  of  the  company's  jiresideut  and  as  the  company's 
guest.  —  Ed. 

2  Here  Sleath  i'.  Wilson,  ante,  p.  122,  was  stated,  and  the  opinion  of  Erskine,  J« 
ante,  pp.  124-125,  was  quoted. —  Ed. 


144  MITCHELL   V.   CRASSWELLER.  [CHAP.  IL 

obedience  could  be  set  up  by  a  railroad  company  as  a  defence  when 
charged  with  negligence,  the  remed}'  of  the  injured  part}'  would  in  most 
cases  be  illusive,  discipline  would  be  relaxed,  and  the  danger  to  the  life 
and  limb  of  the  traveller  greatly  enhanced.  Any  relaxation  of  the 
stringent  policy  and  principles  of  the  law  affecting  such  cases  would  be 
highly  detrimental  to  the  public  safety. 

The  judgment  of  the  Circuit  Court  is  therefore  affirmed.^ 
Mr.  Justice  Daniel  dissents  from  the  decision  of  this  court  in  this 
cause,  upon  the  ground  that  the  said  railroad  company  being  a  corpora- 
tion, created  by  the  State  of  Pennsylvania,  is  not  capable  of  pleading 
or  being  impleaded,  under  the  2d  section  of  the  3d  article  of  the  Con- 
stitution, in  any  of  the  courts  of  the  United  States  ;  and  that  therefore 
the  Circuit  Court  could  not  take  cognizance  of  the  controversy  between 
that  corporation  and  the  plaintiff  in  that  court. 


MITCHELL  V.  CRASSWELLER. 
Common  Pleas,  1853. 

[13  C.  B.  237.] 

This  was  an  action  b}-  husband  and  wife,  to  recover  a  compensation 
in  damages  for  injuries  sustained  by  them  through  the  alleged  negligent 
driving  of  the  defendants'  servant. 

The  first  count  of  the  declaration  stated  that,  on  the  8th  of  Sep- 
tember, 1852,  the  defendants  were  possessed  of  a  certain  cart  and 
horse,  which  was  being  driven  b^-  and  under  the  care  and  direction  of 
the  defendants'  servant ;  and  that,  whilst  the  plaintiff  Dorothj^  was 
crossing  a  certain  street  in  London,  called  Grafton  Street,  the  defend- 
ants, b}-  their  said  servant,  so  negligently  and  improperly  drove  and 
directed  the  said  cart  and  horse  along  the  said  street,  that  the  said  cart 
and  horse  ran  against  and  struck  the  plaintiff  Doroth}'  with  great  vio- 
lence, and  threw  her  down,  and  the  wheel  of  the  said  cart  passed  over 
her ;  by  reason  whereof,  the  said  last-mentioned  plaintiff  was  very 
much  hurt  and  injured,  and  was  confined  to  her  bed  several  weeks,  and 
during  that  time  underwent,  and  still  continued  to  undergo,  a  great 
deal  of  pain  and  suffering  ;  and  the  plaintiff  in  right  of  the  said  plaintiff 
Dorothy  claimed  £100. 

The  second  count  was  for  the  injury  sustained  by  the  plaintiff  Richard 
Mitchell. 

The  defendants  pleaded,  —  first,  not  guilt}',  —  secondl}-,  that  they 
were  not  possessed  of  the  said  horse  and  cart  in  the  declaration  men- 
tioned ;  whereupon  issue  was  joined. 

The  case  was  tried  before  Jervis,  C.  J.,  at  the  sittings  atWestmin- 

*  Ace. :  Garretzen  v.  Duenckel,  50  Mo.  104  (1872).  — Ea 


SKCT.  II.]  MITCHELL   V.    CRASSWELLER.  145 

ster,  after  the  last  teim.  The  facts  appeared  to  be  as  follows:  The 
defendauts  are  ironmongers,  carrying  on  an  extensive  business  in  Wel- 
beck  Street,  and  were  possessed  of  a  horse  and  cart,  with  which  their 
carman  had  on  the  da}'  mentioned  in  the  declaration  been  out  to  de- 
liver goods.  Returning  home  at  a  late  hour  in  the  evening,  the  carman 
drove  up  to  the  shop-door  to  get  tlie  keys  of  the  stable,  for  the  pur- 
pose of  putting  up  the  horse  and  cart.  Having  got  the  keys,  the  car- 
man was  about  to  proceed  to  the  stable,  which  was  in  an  adjoining 
street,  and  within  five  hundred  yards  of  the  shop,  when  the  defendants' 
foreman,  who  was  unwell,  asked  him  to  drive  him  a  part  of  his  way 
home  ;  whereupon  the  carman  went  to  the  house  for  the  purpose  of 
.^sking  the  permission  of  one  of  his  employers,  but.  not  finding  either 
/f  them  at  home,  returned  to  the  foreman,  and,  observing  that  "he 
ff-ould  chance  it,"  he  drove  him  as  far  as  Euston  Square.  In  returning 
thence  to  the  stable,  he  accidentally  ran  over  the  plaintiffs. 

Upon  this  state  of  facts,  it  was  contended  on  the  part  of  the  defend- 
ants that  they  were  not  responsible,  the  accident  having  happened  whilst 
the  carman  was  doing  something  out  of  the  scope  of  his  dut}-. 

The  Lord  Chief  Justice  intimating  a  doubt  whether  this  defence 
was  open  to  them  under  not  guilty  and  not  possessed,  the  counsel  for 
the  defendants  asked  his  lordship  to  amend,  under  the  222d  section  of 
the  common  law  procedure  act,  15  &  16  Vict.  c.  76,^  b}'  adding  a  plea, 
that,  at  the  time  when  the  injurj'  was  sustained  by  the  plaintiffs,  the 
said  cart  and  horse  were  not  being  used  in  the  employ  of  the  defend- 
ants, but  were  being  improperlv  used  and  driven  by  certain  persons 
driving  themselves  for  other  and  different  purposes.  His  lordship 
allowed  the  amendment. 

On  the  part  of  the  plaintiffs  it  was  insisted  that,  inasmuch  as  the 
carman  was  in  charge  of  the  cart  and  horse  of  the  defendants  when 
the  accident  happened,  though  he  might  have  exceeded  his  dutj'in  what 
he  did,  the}'  still  were  responsible  for  the  consequences. 

His  lordship  directed  the  jurN'  to  find  for  the  [defendants],  telling  them 
at  the  same  time  to  assess  the  damages  thej'  considered  the  plaintiffs 
entitled  to.  The  jury  accordingly  assessed  the  damages  at  £30  for  the 
injury  done  to  the  plaintiff  Thomas  Mitchell,  and  at  £10  for  the  injury 
to  his  wife.  And  leave  was  reserved  to  the  plaintiffs  to  move  to  enter 
the  verdict  for  them,  if  the  court  should  think  that  the  defence  raised 

1  "  Whereas,  the  power  of  amendment  now  vested  in  the  courts  and  the  judges  thereof 
is  insufficient  to  enable  them  to  prevent  the  failure  of  justice  by  reason  of  mistakes  and 
objections  of  form,"  —  be  it  enacted  as  follows,  —  "  It  shall  be  lawful  for  the  superior 
courts  of  common  law,  and  every  judge  tliereof,  and  any  judge  sitting  at  nisi  prius,  at 
all  times  to  amend  all  defects  and  errors  in  any  proceeding  in  civil  causes,  whether 
there  is  anything  in  writing  to  amend  by  or  not,  and  whether  the  defect  or  error 
he  that  of  the  party  applying  to  amend,  or  not ;  and  all  such  amendments  may  be 
made  with  or  without  costs,  and  upon  such  terms  as  to  the  court  or  judge  may  seem 
fit ;  and  all  such  amendments  as  may  be  necessary  for  the  purpose  of  determining  in 
the  existing  suit  the  real  question  in  controversy  between  the  parties,  shall  be  so 
made."  —  Kep. 

10 


146  MITCHELL   V.    CRASSWELLER.  [CHAP.  IL 

by  the  added  i)lea  was  not  admissible  under  the  pleas  originally  pleaded, 
and  that  the  Chief  Justice  had  no  power  under  the  statute  to  allow  such 
additional  i)lea ;  or  that  the  defendants  were  under  the  circumstances 
responsible  for  the  negligence  of  their  carman. 

^/lee,  Serjt.,  on  a  former  day  in  this  term,  obtained  a  rule  iiisi 
accordingly. 

J>i/les,  Serjt.,  now  showed  cause. 

Shee^  Serjt.,  Peter sdoi-ff,  and  Garth  (In  support  of  the  rule). 

Jervis,  C.  J.  I  am  of  opinion  that  the  rule  should  be  discharged.* 
,  .  .  The  declaration  alleges  that,  on  a  certain  da}',  the  defendants 
were  possessed  of  a  certain  cart  and  horse,  which  was  being  driven 
(not  stating  it  to  be  so  being  driven  at  the  time  of  the  accident)  by  and 
under  the  care  and  direction  of  the  defendants'  servant.  If  this  alle- 
gation were  traversed,  it  would  be  established  by  proof  of  any  driving 
bv  their  servant  at  any  time  :  it  is  therefore  an  immaterial  allegation. 
Then,  because  they  have  not  alread}-  fixed  the  time,  the  plaintiffs  do 
in  some  sort  ascertain  it  in  the  charging  part,  —  ''  and  that,  whilst  the 
plaintiff  Dorothy  was  crossing  a  certain  street  in  London,  called  Grafton 
Street,  the  defendants,  by  their  said  servant,  so  negligently  and  im- 
properly drove  and  directed  the  said  cart  and  horse  along  the  said 
street,  that  the  said  cart  and  horse  ran  against  and  struck  the  plaintiff 
Dorothy,"  etc.  I  think  ^  not  guilty"  puts  in  issue  whether  at  the  time 
of  the  accident  the  driver  of  the  cart  was  the  servant  of  the  defend- 
ants. That  brings  us  to  the  principal  point,  whether,  under  the  cir- 
cumstances disclosed  by  the  evidence,  the  defendants  are  responsible 
for  the  injury  which  the  plaintiffs  have  sustained.  Each  case  must 
depend  upon  its  own  particular  circumstances.  No  doubt  a  master 
may  be  liable  for  injury*  done  by  his  servant's  negligence,  where  the 
servant,  being  about  his  master's  business,  makes  a  small  deviation,  or 
even  where  he  so  exceeds  his  duty  as  to  justify  his  master  in  at  once 
discharging  him.  But  here  it  cannot  be  denied  that,  though  it  was 
the  dutv  of  the  carman,  on  his  arrival  with  the  horse  and  cart  at  Wel- 
beck  Street,  immediatel}-  to  take  them  to  the  stable,  he,  in  violation  of 
that  dut}',  and  without  the  sanction  or  knowledge  of  his  employers,  in- 
stead of  going  to  the  stable,  started  on  a  new  journe}^  whoU}'  uncon- 
nected with  his  masters'  business,  —  as  my  Brother  Parke  expresses  it 
in  Joel  V.  Morrison,  "  on  a  frolic  of  his  own."  I  think,  at  all  events, 
if  the  master  is  liable  where  the  servant  has  deviated,  it  must  be  where 
the  deviation  occurs  in  a  journey  on  which  the  servant  has  originally 
started  on  his  master's  business ;  in  other  words,  he  must  be  in  the 
employ  of  his  master  at  the  time  of  committing  the  grievance.  I  think 
that  was  not  the  case  here,  and  therefore  I  think  the  defendants  are  not 
liable  to  this  action. 

Maule,  J.  I  am  of  the  same  opinion.  .  .  .  The  facts  were  these : 
The  defendants'  carman,  havmg   finished   his   business,   had  nothing 

1  The  passages  omitted  from  the  opinions  deal  with  pleading  and  procedure.  —  £flk 


SECT.  II.]  MITCHELL   V.    CRASSWELLEK.  147 

further  to  do  but  to  drive  the  horse  to  the  stable.  At  the  time  ol 
the  accident,  he  was  not  going  a  roundabout  wa}-  to  the  stable,  or,  as 
one  of  the  cases  express  it,  making  a  detour.  He  was  not  engaged  in 
the  business  of  his  employers.  But,  in  violation  of  his  dut},  so  far 
from  doing  what  he  was  employed  to  do,  he  did  something  totally  incon- 
sistent with  his  duty,  a  thing  having  no  connexion  whatever  with  his 
employers'  service.  The  servant  only  is  liable,  and  not  the  employers. 
All  the  cases  are  reconcilable  with  that.  The  master  is  liable  even 
though  the  servant,  in  the  performance  of  his  duty,  is  guilty  of  a  devia- 
tion or  a  failure  to  perform  it  in  the  strictest  and  most  convenient 
manner.  But,  where  the  servant,  instead  of  doing  that  which  he  is  em- 
ployed to  do,  does  something  which  he  is  not  emploj'ed  to  do  at  all,  the 
master  cannot  be  said  to  do  it  by  his  servant,  and  therefore  is  not 
responsible  for  the  negligence  of  the  servant  in  doing  it. 

Ckessavell,  J.  I  am  of  the  same  opinion.  For  the  reasons  given  by 
my  Lord  and  my  Brother  Maule,  I  think  the  defence  was  admissible 
under  not  guilt}'.  ...  As  to  the  main  point  of  the  case,  I  agree,  that, 
under  the  circumstances,  the  carman  cannot  be  said  to  have  been  acting 
in  the  employ  of  the  defendants  at  the  time  the  injury  complained  of 
was  done,  so  as  to  make  them  responsible  in  damages  for  his  negligence. 
No  doubt,  if  a  servant,  in  executing  the  orders,  express  or  implied,  of 
his  master,  does  it  in  a  negligent,  improper,  and  roundabout  manner, 
the  master  ma}'  be  liable.  But,  here,  the  man  was  doing  something 
which  he  knew  to  be  contrar}-  to  his  duty,  and  a  violation  of  the  trust 
reposed  in  him.  The  expression  used  by  him  at  the  time  he  started 
upon  the  unauthorized  journey  showed  that  he  was  aware  that  he  was 
doing  that  which  was  inconsistent  with  his  duty.  I  think  it  would  be  a 
great  hardship  upon  the  employers  to  hold  them  to  be  responsible  under 
such  circumstances. 

Williams,  J.  I  am  entii'ely  of  the  same  opinion  :  and  I  must  say  I 
should  have  been  extremely  sorry  if  any  authorit}-  could  have  been 
found  which  would  compel  us  to  hold  that  this  man  was,  at  the  time  of 
the  accident  which  occurred  through  his  breach  of  dut}'  and  his  negli- 
gence, acting  in  the  emplov  of  the  defendants.  If  the  allegation  that 
the  defendants  were  possessed  of  the  cart  and  horse  which  was  being 
driven  by  their  servant,  had  pointed  to  the  particular  time  of  the  com- 
mitting of  the  injury,  the  defendants  might  have  traversed  the  induce- 
ment. But,  here,  the  introductorv  averment  is  so  framed  as  not  to 
involve  the  question  whether  at  the  time  of  the  accident  the  cart  and 
horse  were  under  the  care  and  management  of  the  defendants  bj-  theit 
servant.  .  .  .  Hule  discharged.^ 

1  Ace:  Stone  v.  Hills,  45  Conn.  44  (1877).  Compare  Quinn  v.  Power,  87  N  Y 
535(1882).  — Ed. 


148  ELLIS   V.    SHEFFIELD    GAS    CONSUMERS    CO.  [CHAP.  IL 


ELLIS  V.  SHEFFIELD   GAS   CONSUMERS  CO. 
Queen's  Bench.     1853- 

[2  E.  St'  B.  767.]       - 

Count  for  unlawfully  digging  a  trench  in  a  public  street  and  high- 
way, and  heaping  up  stones  and  earth,  excavated  from  the  said  trench, 
upon  the  said  street  and  liighway,  so  as  to  obstruct  it,  and  to  be  a  com- 
mon public  nuisance  ;  whereby  plaintiff,  lawfully  passing  along  the  said 
public  street  and  highway,  fell  over  the  ;^aid  stones  and  earth,  so  heaped 
up  as  aforesaid,  and  broke  her  arm. 

Plea:  Not  guilty*.     Issue  thereon. 

On  the  trial,  before  Wigiitman,  J.,  at  the  last  York  Assizes,  it  ap- 
peared that  the  defendants  had  made  a  contract  with  persons  trading 
under  the  firm  of  Watson,  Brothers,  of  Sheffield,  by  which  Watson, 
Brothers,  contracted  to  open  trenches  along  the  streets  of  Sheffield 
in  order  that  the  defendants  might  lay  gas  pipes  there,  and  afterwards 
to  fill  up  the  trenches  and  make  good  the  surface  and  flagging.  Watson, 
Brothers,  did  accordingly,  b}'  their  servants,  open  the  trenches  along 
one  of  the  streets  in  question,  and,  after  the  pipes  were  laid,  proceeded 
to  fill  up  the  trench  and  restore  the  flagging.  In  doing  so,  the  servants 
of  Watson,  Brothers,  carelessly  left  a  heap  of  stones  and  earth  upon 
the  footway  ;  and  the  plaintiff,  passing  along  the  street,  fell  over  them 
and  broke  her  arm.  Neither  the  defendants  nor  Watson,  Brothers,  had 
any  legal  excuse  for  breaking  open  the  street  in  the  manner  described, 
which  was  a  public  nuisance.  It  was  objected,  for  the  defendants,  that 
the  cause  of  the  accident  was  the  negligence  of  the  servants  of  the  con- 
tractors, Watson,  Brothers,  for  which  the  defendants  were  not  respon- 
sible. It  was  answered  that  the  contract  was  to  do  an  illegal  act, 
viz.  to  commit  a  nuisance  ;  and,  that  being  so,  that  the  defendants  were 
responsible.  The  learned  Judge  directed  a  verdict  for  the  plaintiff, 
with  leave  to  move  to  enter  a  verdict  for  the  defendants. 

T.  Jones  now  moved  accordingly-. 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  there  should  be  no  rule 
in  this  case.  Mr.  Jones  argues  for  a  proposition  absoluteh'  untenable, 
namely,  that  in  no  case  can  a  man  be  responsible  for  the  act  of  a  per- 
son with  whom  he  has  made  a  contract.  I  am  clearly  of  opinion  that, 
if  the  contractor  does  the  thing  which  he  is  emplo3'ed  to  do,  the  em- 
ployer is  responsible  for  that  thing  as  if  he  did  it  himself.  I  perfectly 
approve  of  the  cases  which  have  been  cited.  In  those  cases  the  con- 
tractor was  employed  to  do  a  thing  perfectly  lawful :  the  relation  of 
master  and  servant  did  not  subsist  between  the  employer  and  those 
actually  doing  the  work  :  and  therefore  the  employer  was  not  liable  for 
their  negligence.  He  was  not  answerable  for  anything  beyond  what  he 
employed  the  contractor  to  do,  and,  that  being  lawful,  he  was  not  liable 
at  all.     But  in  the  present  case  the  defendants  had  no  right  to  break 


8ECT.  II.]  HILL   V.    MOKEY.  149 

up  the  streets  at  all ;  they  employed  Watson,  Brothers,  to  break  up  the 
streets,  and  in  so  doing  to  heap  up  earth  and  stones  so  as  to  be  a  public 
nuisance  :  and  it  was  in  consequence  of  this  being  done  by  their  orders 
that  the  phiinlirt'  sustained  damage.  It  would  be  monstrous  if  the  party 
causing  another  to  do  a  thing  were  exempted  from  liability  for  that  act, 
merely  because  there  was  a  contract  between  him  and  the  person  imme- 
diately causing  the  act  to  be  done. 

CoLKKiixn:,  J.,  concurred. 

WiGHTMAN,  J.  It  seems  to  me,  as  it  did  at  the  trial,  that  the  fact  of 
the  defendants  having  employed  the  contractors  to  do  a  tlung  illegal  in 
itself  made  a  distinction  between  this  and  the  cases  which  have  been 
cited.  But  for  the  direction  to  break  up  the  streets,  the  accident  could 
not  have  happened:  and,  though  it  may  be  that  if  the  woikmen  em- 
ployed had  been  careful  in  the  way  in  which  they  heaped  up  the  earth 
and  stones  the  plaintitl"  would  have  avoided  them,  still  I  think  the  nui- 
sance which  the  defendants  employed  the  contractors  to  commit  was  the 
primary"  cause  of  the  accident. 

EiiLE,  J.  I  agree  that  there  should  be  no  rule,  on  this  specific  ground 
that,  as  I  understand  the  facts,  the  cause  of  the  accident  was  the  very 
thing  done  in  pursuance  of  the  specific  directions  of  the  defendants 
contained  in  their  contract ;  and  that  in  ra^'  opinion  makes  the  distinc- 
tion between  the  present  case,  and  those  cited,  in  which  the  cause  of 
the  accident  was  the  negligence  of  those  doing  the  thing,  not  the  thing 
itself.  Jiule  refused. 


HILL  V.   MOREY. 
Supreme  Court  of  Vermont.     1854. 

[26   T7.  178.] 

This  was  an  action  of  trespass  founded  on  the  statute  entitled,  "An 
act  more  effectually  to  prevent  trespass  in  certain  cases,"  passed  in 
1849.  Plea  not  guilty-,  and  trial  by  jury.  After  the  jury  were  em- 
panelled, the  defendant  made  a  motion,  in  writing,  that  the  cause  be 
dismissed,  on  the  ground,  "  that  the  plaintiff,  when  he  prayed  out  his 
writ,  did  not  cause  a  true  minute  of  the  day,  month,  and  year  when  said 
writ  was  signed,  or  any  minute  whatever  to  be  made  on  said  writ."  The 
court  decided,  that  if  such  certificate  was  necessary,  the  defendant  was 
too  late  in  making  his  motion  ;  and  overruled  the  same.  It  appeared 
on  trial,  that  the  plaintiff  and  defendant  were  adjoining  landowners, 
the  plaintiff  owning  upon  the  east,  and  the  defendant  upon  the  west ; 
and  that  originally,  the  line  between  them  was  marked  upon  the  land, 
and  corners  made  at  the  north  and  south  ends  of  the  line ;  but  the 
marked  trees  towards  the  north  part  of  the  line  had  been  mostly  cut 
down,  and  the  fence  (a  brush  fence)  was  not  on  the  line,  some  parts 


150  HILL   V.    MOREY.  [CHAP.  II. 

being  on  the  one  side  and  some  on  the  other.  That  tile  parties  went 
upon  the  ground  for  the  purpose  of  ascertaining  where  the  line  was, 
and  of  dividing  and  repairing  the  fence  between  them  ;  and  that  one 
Sturdevant  was  also  there  at  the  time.  They  went  to  the  north  part  of 
the  line  where  the  marked  trees  were  gone,  and  where  the  trespass  was 
said  to  have  been  committed,  and  the  plaintiff  went  to  a  certain  point 
in  tlie  woods,  either  at  or  near  the  north  end  of  the  line,  and  told  the 
defendant,  who  was  some  fifteen  rods  distant,  that  it  was  the  corner. 
AVhether  the  plaintiff  went  to  the  true  corner  or  not,  did  not  distinctW 
appear ;  the  testimony  of  the  plaintiff  tending  to  show  that  he  did  go  to 
the  true  corner  ;  and  tlie  testimony  of  defendant  tending  to  show  that  he 
did  not,  but  that  plaintiff  was  a  short  distance  east  of  it.  The  parties 
made,  at  this  time,  a  division  of  their  fence,  the  defendant  taking  the 
said  north  part  for  his  share  of  the  fence ;  and  he  then  began  to  repair 
the  brush  fence.  The  defendant  also  offered  testimon}-  tending  to 
show,  that  the  said  Sturdevant,  who  was  a  neighbor,  and  happened  to 
be  present,  without  any  request  from  the  defendant,  began  to  assist 
the  defendant  in  repairing  the  said  brush  fench.  That  in  so  doing,  said 
Sturdevant  cut  a  few  small  trees  and  poles  east  of  the  division  fence 
and  east  of  the  line  between  plaintiff  and  defendant ;  and  this  cutting 
bj'  said  Sturdevant,  was  the  trespass  complained  of.  It  also  appeared 
from  defendant's  testimon}',  that  at  the  time  said  Sturdevant  began  to 
cut,  the  defendant  told  him,  that  he  must  be  careful  and  not  cut  over 
the  line.  The  line,  a  portion  of  the  way,  was  in  dispute  on  the  trial. 
It  appeared  that  the  defendant  in  repairing  the  fence,  went  on  the  west 
side,  and  said  Sturdevant  on  the  east  side,  and  in  this  wa}'  passed  over 
the  whole  of  that  part  of  the  division,  which  defendant  was  to  repair, 
each  cutting  on  his  side  of  the  fence  small  trees  and  poles,  and  putting 
the  same  on  the  fence,  and  thus  repairing  it.  The  defendant  claimed, 
and  so  said  Sturdevant  testified,  that  Sturdevant  in  what  he  did,  in 
cutting  and  repairing  the  fence,  was  a  mere  volunteer,  and  that  he  did 
not  act  at  the  request  of  the  defendant,  and  that  he  was  not  in  the 
emplo}'  of  the  defendant.  The  defendant  therefore  claimed  that  he  was 
not  liable  for  Sturdevant's  act ;  and  that  as  he  requested  Sturdevant 
not  to  cut  over  the  line  on  plaintiff's  land,  Sturdevant  in  so  doing, 
acted  against  the  wishes  and  without  the  authorit}'  of  defendant, 
and  that  no  assent  could  be  inferred  or  implied  from  the  defendant's 
presence  and  knowledge  of  the  acts  being  done.  Defendant  also 
claimed,  that  if  the  jury  found  that  the  plaintiff,  when  he  pointed  out 
the  north  corner,  pointed  it  out  as  further  east  than  the  true  corner,  it 
amounted  to  a  license  ;  and  that  if  defendant  or  Sturdevant  did  not  cut 
further  east  than  the  line  would  have  been,  assuming  the  corner 
thus  pointed  out  by  plaintiff  to  be  the  true  corner,  it  amounted  to  a 
license,  and  that  defendant  would  not  be  liable.  Plaintiff's  testimony 
tended  to  prove,  that  he,  the  plaintiff,  told  them  before  they  began  to 
mend  said  fence,  not  to  cut  on  his  side  of  the  fence.  It  also  appeared, 
that,  where  said  fence  run  it  was  wood  land,  but  that  the  land  east  of 
the  fence  was  enclosed  with  the  plaintiff's  cleared  land,  and  occupied 


SECT.  II.]  HILL   V.  MOREY.  151 

by  plaintiff;  and  that  the  land  west  of  said  fence  was  enclosed  with 
defendant's  cleared  land,  and  occupied  by  and  in  defendant's  posses- 
sion. On  the  points  above  stated,  and  made  by  defendant,  the  court, 
—  Peck,  J.,  presiding,  — charged  the  jury  as  follows  :  — 

That  in  order  to  entitle  the  plaintiff  to  recover,  the  jurj'  must  Gnd, 
that  some  cutting  was  done  or  trespass  committed  east  of  the  division 
fence  and  east  of  the  division  line  between  the  plaintiff's  and  defend- 
ant's land  ;  that  for  any  cutting  or  trespass  west  of  the  true  line, 
although  east  of  the  division  fence,  the  plaintiff  could  not  recover  for 
want  of  title  to  the  premises  where  such  trespass  was  committed  ;  and 
that  for  any  cutting  done  or  trespass  committed  east  of  the  true  line, 
if  west  of  the  division  fence,  the  plaintiff  could  not  recover,  for  want  of 
possession,  and  b}-  reason  of  the  defendant  being  in  possession  of  the 
land  west  of  and  up  to  the  division  fence ;  but  for  any  cutting  done, 
or  trespass  committed  by  defendant,  which  was  both  east  of  the  divi- 
sion fence,  and  east  of  the  division  line  between  plaintiff  and  defend- 
ant, if  done  on  plaintiff's  land,  or  land  in  plaintiff's  possession,  the 
defendant  would  be  liable.  On  the  point  made  in  relation  to  defend- 
ant's liability  for  the  acts  done  by  Sturdevant,  the  court  charged  the 
jury,  that  if  Sturdevant  was  cutting  for  defendant's  benefit  and  in  his 
presence,  and  with  his  knowledge  and  consent,  the  act  of  Sturdevant 
wonld  be  the  act  of  defendant,  for  which  defendant  would  be  liable, 
even  if  Sturdevant  had  not  been  employed  by  defendant,  and  defendant 
did  not  advise  or  direct  such  act  to  be  done  ;  or  if  defendant  knew  at  the 
time  when  Sturdevant  was  cutting  and  did  not  object,  but  assented  to 
it,  and  it  was  an  act  beneficial  to  defendant,  and  done  for  defendant's 
benefit,  the  defendant  would  be  liable  for  such  act  of  Sturdevant ;  and 
that  the  question,  whether  what  was  done  b}-  Sturdevant  was  done 
by  the  consent  of  defendant  or  not,  was  a  question  of  fact  for  the  jury 
to  find  ;  and  that  they  might  or  might  not  find  such  consent  of  the 
defendant,  as  they  might  think  the  evidence  warranted  ;  that  if  they 
did  not  find  such  assent,  or  that  the  cutting  or  trespass  by  Sturde- 
vant, was  not  done  b}^  defendant's  assent,  the  defendant  would  not  be 
liable  for  the  acts  of  Sturdevant ;  but  if  Sturdevant  was  cutting  for 
defendant's  benefit,  and  his  acts  were  beneficial  to  defendant,  and  he 
was  cutting  by  defendant's  assent,  even  if  defendant  told  him  not  to 
cut  over  the  line  on  plaintiff's  land,  yet,  if  Sturdevant,  b}'  mistake,  not 
knowing  and  not  having  the  means  of  knowing  where  the  line  was,  cut 
over  the  line  on  plaintiff's  land  and  possession,  such  act  of  Sturdevant 
would  be  the  act  of  defendant ;  but  if  Sturdevant  was  cutting  even 
with  defendant's  consent  or  direction,  and  knowingly'  or  wilfully  with- 
out defendant's  consent  or  direction  cut  over  on  plaintiff's  land  or 
possession,  the  defendant  would  not  be  liable  for  such  act.  In  refer- 
ence to  what  was  claimed,  as  to  a  license,  the  court  told  the  jury, 
that  even  if  they  should  find  that  plaintiff  pointed  out  the  corner 
further  east  than  the  true  corner,  and  that  defendant  and  Sturdevant 
did  not  either  of  them  cut  further  east  than  the  line  would  be,  assum- 
ing the  corner  thus  pointed  out  to  be  the  true  corner,  if  such  evidence 


152  SADLEE   V.    HENLOCK.  [CHAP.  IL 

had  a  tendency  to  prove  a  license,  it  would  not  be  a  defence  under  the 
general  issue,  that  in  order  for  defendant  to  avail  himself  of  that 
evidence,  as  a  license,  it  should  have  been  pleaded  ;  but  that  such 
evidence  was  proper  for  the  jury  to  consider  and  weigh,  in  reference  to 
the  question  of  fact,  where  the  true  line  was,  and  in  that  point  of  view, 
it  had  a  tendency  to  show  that  the  true  line  was  further  east,  than  the 
line  claimed  by  the  plainlift"  on  trial.  To  the  decision  of  the  court 
overruling  the  motion  to  dismiss,  and  to  the  omission  of  the  court  to 
charge  as  requested,  and  to  the  charge  as  given,  the  defendant  ex- 
cepted.    The  jury  i-eturned  a  verdict   for  plaintiff. 

A.  Burt  and  A.  0.  Aldis  for  defendant. 

H.  R.  Brardsley  for  plaintift'. 

The  opinion  of  the  court  was  delivered  by 

Redfield,  C.  J.^  The  other  objection  depends  a  good  deal  upon  the 
construction  of  the  testimon}-.  It  is  a  small  cause  and  seems  to  have 
been  pretty  thoroughly  tried  in  the  county  court,  and  we  have  not  been 
able  to  see  very  clearl}'  any  error  in  the  trial.  Sturdevant,  although  a 
volunteer,  seems  to  have  undertaken  the  office  of  a  servant  to  the 
defendant  pro  hac  vice,  and  to  have  been  suffered  to  proceed  in  his 
service,  without  objection,  or  any  other  restriction,  except  to  be  careful 
not  to  cut  trees  standing  upon  the  plaintiff's  land  ;  but  he  did  cut  trees 
on  the  plaintiff's  land,  negligentl}',  and  for  want  of  proper  information, 
and  upon  every  principle  of  the  relation  of  master  and  servant,  the 
defendant  must  be  regarded  as  liable  for  the  act.  If  one  could  always 
excuse  himself  from  liability  for  the  acts  of  his  servant,  by  giving  such 
instructions,  the  liability  would  be  reduced  to  cases  of  express  assent. 
And  in  the  present  case,  the  act  being  done,  in  the  presence  of  the 
defendant  and  for  his  benefit,  and  he  not  dissenting,  in  any  manner, 
must  be  regarded,  as  assenting.  As  the  evidence  stood,  there  could 
be  no  reasonable  doubt  of  defendant's  liability'  for  the  acts  of  Sturde- 
vant, upon  either  of  these  grounds,  and  we  think,  the  case  was 
correclly  submitted  to  the  jury,  upon  both  grounds. 

Judgment  affirmed. 


SADLER   y.   HENLOCK. 
Queen's  Bench.     1855. 

[4   E.   .j-   B.  570.] 

TgfK  declaration  alleged  that,  before  and  at  the  time  &c.,  there  was, 
and  thence  hitherto  &c.,  a  common  and  public  highwa}',  in  «&;c.,  for  all 
the  liege  &c.  to  go,  return,  "  pass  and  repass,  on  foot  and  by  and  with 
horses  and  carriages,  at  all  times  of  the  year,  at  their  free  will  and 

*  Paragraphs  as  to  procedure  and  license  are  omitted.  —  En. 


8ECT.  II.]  SADLER   V.    HENLOCK.  153 

pleasure  :  yet  the  defendant,  well  knowing  the  premises,  heretofore,  to 
wit  on  the  28th  day  of  November  in  the  year  1853,  wrongfully  and 
unjustly  cut,  dug  and  excavated  a  deep  ditch  or  trench  across  the  said 
highway,  and  partially  filled  and  covered  in  the  same  with  mud,  dirt  and 
other  soft  and  loose  materials,  and  thereby-  rendered  that  portion  of 
the  said  highway,  across,  over  and  along  the  said  ditch  or  trench  so 
cut,  dug  and  excavated  as  aforesaid,  soft,  mirv,  dangerous  and  unsafe 
to  persons  using  and  frequenting  the  said  highway  on  hoiscback  and 
otherwise.  ]>}•  means  of  which  said  several  premises,  afterwards,  and 
while  the  said  road  remained  and  was  in  the  said  state  and  condition 
last  aforesaid,  and  before  the  commencement  of  this  suit,  to  wit  on  " 
&c.,  a  horse  of  plaintiff,  of  great  value  &c.,  "which  the  plaintiff  was 
then  lawfully  riding  on  and  along  the  said  highway,  was  thrown  down 
by  stepping  in  and  upon  the  said  portion  of  the  road  which  was  so 
rendered  soft,  miry,  dangerous  and  unsafe  as  aforesaid  :  and  thereby 
the  knees  of  the  said  horse  were  broken,  and  the  said  horse  was  and  is 
otherwise  greatly  injured  and  rendered  of  little  or  no  use  or  value  to 
the  plaintiff,  who  was  tliereby  also  then  subjected  to  and  incurred  great 
expense,"  &c. 

Plea:  Not  guilty.     Issue  thereon. 

There  were  two  other  issues  of  fact  not  now  material. 

On  the  trial,  before  Platt,  B.,  at  the  last  Yorkshire  Assizes,  it 
appeared  that  the  defendant  was  the  occupier  of  some  land  adjacent  to 
the  highway  mentioned  in  the  declaration.  The  land  was  drained  by  a 
drain  which  passed  from  the  laud  down  under  the  highwaj-.  The  drain 
having  become  obstructed,  and  the  water  having  accumulated  on 
defendant's  land,  he  (in  consequence,  as  it  appeared,  of  having  been 
told  by  the  parish  surveyor  that  the  Board  of  Health  would  require 
all  drains  to  be  cleansed  out)  directed  a  man  named  Pearson  to  cleanse 
out  the  drain.  Pearson  was  not  otherwise  in  the  emplo3-ment  of  the 
defendant ;  he  was  a  common  laborer  who  had  originallj-  made  the 
drain.  Pearson  executed  the  work  with  his  own  hands,  and  charged 
the  defendant  five  shillings  for  the  job,  which  the  defendant  paid. 
The  defendant  was  not  shown  to  have  interfered  with  the  work,  or  to 
have  seen  th§  way  in  which  it  was  executed,  or  to  have  given  any 
specific  directions.  Pearson,  in  clearing  out  the  drain,  took  up  the 
part  of  the  highway  under  which  the  drain  passed.  After  completing 
the  work,  he  replaced  the  soil  of  the  highwa}',  but  iraperfecth",  and 
with  insufficient  materials  :  and,  in  consequence,  it  gave  way,  as  a 
horse  belonging  to  the  plaintiff,  and  on  which  plaintiff  was  riding  at 
the  time,  was  passing  over  it :  and  the  horse,  by  falling  into  the  hole 
thus  made,  was  injured.     The  action  was  brought  for  this  injur}'. 

The  counsel  for  the  defendant  contended  that,  under  these  circum- 
stances, Pearson  alone  was  answerable,  and  that  the  rule  of  respondeat 
superior  did  not  appl}'.  The  learned  Baron  overruled  the  objection, 
reserving  leave  to  move  for  a  nonsuit  or  for  entering  a  verdict  for  the 
defendant.     The  plaintiff  had  a  verdict  on  all  the  issues. 


154  SADLER   V.    HENLOCK.  [CHAP.  IL 

In  last  term  Hugh  Hill  obtained  a  rule  calling  on  the  plaintiff  to 
show  cause  why  a  verdict  should  not  be  entered  for  defendant,  or  a 
nonsuit,  on  the  plea  of  not  guilty,  or  why  a  new  trial  should  not  be  had, 
"  on  the  ground  of  misdirection  in  this  :  that  the  Judge  who  tried  the 
cause  directed  the  jury  to  the  effect  that  Pearson,  who  did  the  work, 
was  the  servant  of  the  defendant,  and  that  the  defendant  was  respon- 
sible for  the  negligence  of  Pearson,  although  Pearson  might  have  done 
the  work  which  he  was  employed  to  do  without  being  guilty  of  any 
negligence  ;  and  also  that,  if  it  was  material  to  determine  whether 
Pearson  was  a  contractor  or  servant,  that  should  have  been  left  as  a 
question  to  the  jur}'." 

T.  Jones  now  showed  cause. 

Hugh  Hill,  contra. 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  this  rule  ought  to  be 
discharged.  The  real  question  is,  what  relation  subsisted  between  the 
defendant  and  Pearson.  Ellis  v.  Sheffield  Gas  Consumers  Company, 
2  E.  «fe  B,  767,  is  inapplicable :  the  act  there  could  not  be  done  at  all 
without  committing  a  public  nuisance.  Here  the  drain  might  have 
been  cleansed  without  injury  to  the  public  or  to  an}'  individual.  The 
question  therefore  depends  on  this :  whether  Pearson  was  the  defend- 
ant's servant.  Had  Pearson  been  the  domestic  servant  of  the  defendant, 
and  the  defendant  had  said  to  him,  "go  and  clean  out  the  drain,"  no 
doubt  Pearson,  by  doing  the  work  negligently,  would  have  made  the 
defendant  liable.  Then  what  difference  can  it  make  that  Pearson  was 
an  independent  laborer,  to  be  paid  by  the  job?  The  defendant  might 
have  said,  '•  fill  up  the  hole  in  the  road,  but  not  as  you  are  now  doing 
it,  lest,  when  a  horse  goes  over  the  place,  he  may  be  injured."  Pear- 
son was  therefore  the  defendant's  servant;  and,  if  so,  cadit  qucestio. 
Our  decision  is  not  inconsistent  with  that  in  Peache}'  i".  Rowland,  13 
Com.  B.  182,  and  the  other  cases  which  have  been  cited,  in  which  the 
relation  of  master  and  servant  did  not  exist. 

Coleridge,  J.  I  am  of  the  same  opinion.  The  defendant  was  not 
called  on  by  public  authorit}'  to  do  the  work  ;  nor  was  there  an  v  reason 
wh\',  if  it  could  not  be  done  properlv,  it  should  be  done  at  all.  If  the 
work  had  been  done  b}'  his  own  hand  he  would  have  been  responsible. 
So  he  would  if  it  had  been  done  by  his  servant  or  b}'  a  common  laborer 
whom  he  had  emplo3ed.  On  what  ground?  Because  the  party  doing 
the  act  would  have  been  employed  by  him.  Instead  of  this,  he  employs 
a  person  who  seems  to  have  been  usually  emplo3-ed  in  such  works. 
Such  person  is  just  as  much  his  servant,  for'  this  purpose,  as  a  domes- 
tic servant.     The  rule  must  be  discharged. 

"WiGHTMAN,  J.  Really  the  question  is  whether  Pearson  is  to  be 
considered  as  the  defendant's  servant  or  as  a  contractor  exercising  an 
independent  employment.  The  whole  evidence  shows  that  the  former 
is  the  correct  view.  Pearson  was  not  a  person  exercising  an  indepen- 
dent business,  but  an  ordinar}'  laborer,  chosen  bv  the  defendant  in 
preference  to  an}^  other,  but  not  exercising  an  independent  employ- 
ment.    Our  decision  is  in  conformity  with  all  the  cases  cited. 


SECT.  II.]  MOIK   V.    HOPKINS.  155 

CuoMPTON,  J.  I  am  of  tlie  same  oi)inion.  The  real  question  is, 
whetlier  the  (lefeiidant  and  IVarson  stood  to  each  other  in  the  rehition 
of  master  and  servant.  I  decide,  not  on  the  ground  that  Pearson  did 
not  employ  the  hands  of  another ;  for,  if  he  was  the  defendant's  ser- 
vant, the  defendant  would  be  liable  for  the  wrong  doing  of  the  person 
whom  the  servant  employed  :  though  it  is  true  that  such  employment 
may  sometimes  be  a  test  as  to  whether  the  employer  was  a  servant  or 
an  independent  contractor.  The  test  here  is,  whether  the  defendant 
retained  the  power  of  controlling  the  work.  No  distinction  can  be 
drawn  from  the  circumstance  of  the  man  being  employed  at  so  much  a 
day  or  by  the  job.  I  think  that  here  the  relation  was  that  of  master 
and  servant,  not  of  contractor  and  contractee.  It  is  only  on  the 
ground  of  a  contractor  not  being  a  servant  that  I  can  understand  the 
authorities. 

Rule  discharged. 


MOm   V.    HOPKINS. 
Supreme  Court  of  Illinois.     1855. 

[16  ///.  313.] 

This  cause  was  heard  before  Wead,  J.,  and  a  jnry,  at  April  term, 
1855,  of  Henderson  Circuit  Court.  The  opinion  of  the  court  gives  a 
statement  of  the  case. 

Sievxirt  and  Goudy,  for  plaintiff  in  error. 

C.  M.  Harris,  for  defendant  in  error. 

Skinner,  J.  Trespass  by  Manassah  Hopkins  against  William, 
James  and  Robert  Moir,  for  killing  Hopkins'  horse.  The  defendants 
pleaded  not  guilty.  Upon  the  trial,  the  plaintiff  proved  b}-  William 
Hopkins,  his  brother,  that  plaintiff  had  worked  for  defendants  with  his 
team  ;  that  while  he  was  at  work  he  was  taken  sick,  and  went  home, 
leaving  his  team  with  witness  ;  that  at  night,  witness  took  the  team 
home  where  plaintiff  boarded,  and  kept  his  team  ;  that  he  put  the  team 
np  and  fed  it,  as  directed  by  plaintiff;  that  the  next  da}',  plaintiff  being 
still  sick,  witness  worked  for  defendants  ;  that  on  said  day,  defendants 
wanted  a  team  to  haul  lumber  in  their  mill-yard  ;  that  early  in  the 
morning,  defendant,  Robert  Moir,  directed  witness  to  go  and  see  if  he 
could  not  hire  a  team  to  do  the  hauling ;  that  witness  accordingly 
endeavored  to  hire  a  team  among  the  neighbors,  but  could  not  obtain 
one  ;  that  when  defendant,  Robert  Moir,  found  that  witness  had  been 
unsuccessful  in  hiring  a  team,  he  directed  witness  to  go  and  get  plain- 
tiff's team  ;  that  witness  then  went  and  got  plaintiff's  team  out  of  the 
stable,  without  plaintiff's  knowledge  or  consent,  and  took  it  to  the  yard 
and  used  it  for  defendants,  hauling  lumber  during  that  forenoon  ;  that 
In  the  afternoon,  defendants  wanted  some  bricks  hauled  from  the  coun- 
try, a  distance  of  eight  miles,  and  that  defendant,  James  Moir,  directed 


156  MOIR   V.    HOPKINS.  [CHAP.  II. 

witness  to  go  and  haul  the  bricks  ;  that  witness  started  with  plaintiff's 
team,  got  the  bricks,  and  in  returning,  drove  partly  down  a  steep  hill 
on  the  road ;  that  as  he  got  part  wa3'  down,  one  of  the  horses  was 
forced  over  the  bank,  fell  and  was  killed  ;  that  the  horse  was  of  the 
value  of  $115  ;  that  witness  was  a  married  man  ;  that  the  plaintiff  was 
his  brother,  was  an  unmarried  man,  lived  with  witness,  and  kept  his 
team  at  the  stable  of  witness  ;  that  for  some  time  previous  to  the  time 
plaintiff  was  taken  sick,  plaintiff  had  been  in  the  employ  of  defendants, 
with  his  team,  hauling  lumber  for  defendants ;  that  plaintiff,  on  being 
taken  sick,  went  to  witness'  house,  and  was  there  the  next  day,  when 
witness  took  the  team  ;  that  plaintiff  was  sick  and  confined  for  some 
time  after  the  horse  was  killed. 

The  jury  found  the  defendant,  Robert  Moir,  guilty^  assessed  the 
plaintiff's  damages  at  Si  15,  and  found  the  other  defendants  not  guilty. 
Motion  for  new  trial  overruled,  and  judgment  on  the  verdict. 

The  plaintiff  in  error,  Robert  Moir,  assigns  for  error,  the  giving  of 
the  first  and  second  instructions  asked  for  by  the  plaintiff  below,  and 
the  refusal  of  a  new  trial.     These  instructions  are  as  follows  :  — 

First.  If  the  defendants,  or  either  of  them,  directed  the  witness  to 
go  and  get  the  plaintiff's  horses,  and  he  did  go  and  get  tliem,  in  pursu- 
ance of  such  directions,  without  the  assent,  express  or  implied,  of  the 
plaintiff,  the  person  giving  such  instruction  is  a  trespasser. 

Second.  If  a  person  injures  personal  property  belonging  to  another, 
of  which  he  has  obtained  possession  bj'  a  trespass,  he  is  liable  to  pay 
for  such  injury. 

The  first  instruction  construed  with  reference  to  the  facts  before  the 
jury,  and  in  the  sense  evidently  intended  by  the  court,  and  understood 
b}-  the  jur}',  is  clearh'  good  law.  The  plaintiff  below,  Hopkins,  had, 
with  his  team,  been  in  the  employ  of  the  Moirs  ;  had  left  on  account  of 
being  sick  ;  was  then  confined,  and  his  team  was  idle.  The  Moirs  had 
sent  their  agent  among  their  neighbors  to  hire  a  team,  and  he  had  re- 
turned unsuccessful.  Robert  Moir  then  directed  the  same  agent  to 
'•go  and  get"  Hopkins's  team.  He  did  so.  The  instruction  is  based 
on  the  hypothesis  of  a  command  b}'  the  Moirs  to  their  agent,  to  go  and 
take  Hopkins's  team,  and  the  evidence  warranted  the  hypothesis.  If, 
then,  Robert  Moir  directed  his  agent  to  go  and  take  Hopkins's  team, 
and  the  agent  did  so,  there  can  be  no  question  of  his  liability  for  any 
injury  done  to  Hopkins's  property  thereb}-. 

The  rule  of  law  is,  that  all  who  aid,  command,  advise  or  counte- 
nance the  commission  of  a  tort  b}'  another,  or  who  approve  of  it  after  it 
is  done,  if  done  for  their  benefit,  are  liable  in  the  same  manner  as  they 
would  be  if  the}'  had  done  the  same  tort  with  their  own  hands.  Judson 
V.  Cook,  11  Barbour's  R.  642;  1  Chitty's  PL  208;  Story  on  Agency, 
Sec.  455. 

The  general  rule  is,  that  the  principal  is  liable  for  the  torts  of  his 
agent,  done  in  the  course  of  his  emploj'ment,  although  the  principal 
did  not  authorize,  or  justify,  or  participate  in,  or  even  if  he  disap- 


SECT.  II.]  PATTEN    V.    REA.  157 

proved  of  tliem.  If  the  tort  is  committed  by  the  agent  in  the  course  of 
his  employment,  while  pursuing  the  business  of  his  principal,  and  is 
not  a  wilful  departure  from  such  employment  and  business,  the  princi- 
pal is  liable,  although  done  without  his  knowledge.  Story  on  Agency, 
sec.  452  ;  Fuller  v.  Voght,  13  111.  285  ;  Johnson  v.  Barber,  5  Gil.  425, 
and  cases  there  cited ;  May  v.  Bliss,  et  al.,  '2'2  Vt.  K.  477. 

And  it  would  seem,  that  although  Moir  intended  that  his  agent 
should  get  the  owner's  consent  before  taking  his  team,  and  the  agent 
misunderstanding  the  instructions  given,  took  it  without  the  owner's 
consent,  he  would  still  be  liable.     22  Vt.  R.  478. 

The  second  instruction  is  certainly  the  law,  and  the  evidence  suffi- 
cient to  sustain  the  verdict.  Judgment  affirmed.^ 


PATTEN   V.   REA. 

Common  Pleas.     1857. 

[2  C.  B.  N.  s.  606.] 

This  was  an  action  against  the  defendant  for  negligence  in  drivmg 
a  horse  and  gig.  The  declaration  stated  that,  by  the  wrongful  act, 
neglect,  and  default  of  one  William  Taylor,  then  being  and  acting 
therein  as  the  servant  of  the  defendant,  a  certain  horse  and  carriage  of 
the  defendant  were  driven  upon  and  against  a  horse  of  the  plaintiff, 
which  last-mentioned  horse  was  thereby-  killed. 

The  defendant  pleaded,  —  first,  not  guilty,  —  secondly-,  that  the  horse 
and  carriage  in  the  declaration  mentioned  were  not  the  property  of  the 
defendant  as  alleged,  —  thirdly,  that  the  horse  and  carriage  in  the  dec- 
laration mentioned  were  not  under  the  care,  management,  and  direction 
of  the  defendant  as  alleged.     Issue  thereon. 

The  cause  was  tried  before  Crowder,  J.,  at  the  first  sitting  at 
Westminster  in  Hilary  Term  last.  The  facts  which  appeared  in  evi- 
dence were  as  follows: — The  defendant  was  the  proprietor  of  a  re- 
pository for  the  sale  of  horses,  at  Newington,  in  the  county  of  Surrey. 
Taylor  was  his  manager  there,  acting  as  auctioneer  in  the  sale  of 
horses,  collection  of  moneys,  and  otherwise  in  the  general  conduct  of 
the  business.  He  had  a  horse  and  gig,  his  own  property,  which  were 
kept  for  him  on  the  premises  of  the  defendant  free  of  charge,  and  which 
he  was  in  the  habit  of  using  when  going  out  upon  the  defendant's  busi- 
ness. One  Smith  had  bought  a  horse  at  the  defendant's  repository, 
which  he  ought  to  have  paid  for  at  the  office  upon  the  premises,  but  had 
not  done  so.  On  the  10th  of  November,  1856,  Taylor  was  going  in  the 
gig  to  see  his  medical  attendant  at  Finsburj'  Place,  and  also  purposed 
to  call  upon  Smith  for  paj-ment  of  the  debt  he  owed  the  defendant  for 
the  horse ;  and,  whilst  on  his  way  to  the  former  place,  and  before  he 

1  See  Wilson  v.  Noonan,  27  Wis.  598  (1871);  Maier  v.  Randolph,  33  Kan.  340 
a  88.5).  —El). 


158  PATTEN   V.    REA.  [CHAP.  IL 

got  to  Smith's,  he  negligently  ran  against  and  killed  a  horse  belonging 
to  the  plaintiff. 

It  appeared,  that,  whilst  Taylor  was  getting  ready  the  horse  and  gig 
for  the  purpose  of  going  on  the  journey  in  question,  the  defendant 
asked  him  where  he  was  going,  when  Taylor  told  him  he  was  going  to 
get  Smith's  money. 

On  the  part  of  the  plaintiff  it  was  insisted,  that,  although  the  horse 
and  gig  were  the  property  of  Taylor,  yet,  as  at  the  time  of  the  accident 
he  was  using  it  in  the  defendant's  business,  and  with  his  knowledge, 
the  defendant  was  liable.  The  contrary  was  contended  on  the  part  of 
the  defendant. 

In  answer  to  questions  put  to  them  by  the  learned  judge,  the  jur}' 
found,  that,  on  the  occasion  in  question,  there  was  no  verbal  request 
by  the  defendant  to  Taylor  to  go  with  the  horse  and  gig  upon  the 
defendant's  business ;  but  that  Taylor  went  on  the  journey  upon  the 
business  of  the  defendant,  and  that  the  defendant  knew  it  and  assented 
to  it. 

Upon  this  finding,  the  defendant's  counsel  claimed  to  have  the  verdict 
entered  for  him  upon  the  second  and  third  issues. 

The  learned  judge,  however,  ruled  that  the  plaintiff  was  entitled  to 
the  verdict  upon  all  the  issues,  and  the  jur^^  assessed  the  damages 
at  £31. 

Atherton,  in  Hilary  Term  last,  obtained  a  rule  nisi  for  a  new  trial, 
on  the  ground  of  misdirection  on  the  part  of  the  learned  judge,  — 
first,  in  not  leaving  to  the  jury  the  question  whether  the  horse  and 
gig  driven  by  William  Taj-lor  were  used  b}'  him  on  his  master's  busi- 
ness, at  the  instance  and  express  I'equest  of  the  defendant,  —  secondly, 
in  not  directing  the  verdict  to  be  entered  for  the  defendant,  on  the  fact 
being  found,  and  not  disputed,  that  the  horse  and  gig  were  the  property 
of  William  Taylor,  not  b}'  him  made  over  or  bailed  to  the  defendant ; 
or  on  the  ground  that  the  verdict  was  against  the  weight  of  evidence, 
if  it  was  to  be  taken  that  the  jury  in  fact  found  that  the  horse  and  gig 
driven  by  Taylor  were  used  by  him  on  his  master's  business  at  the 
instance  and  express  request  of  the  defendant. 

3Iontagu  Chambers,  Q.  C,  and  Joyce^  now  showed  cause. — The 
evidence  shows  beyond  dispute  that  Ta3lor  was  at  the  time  the  col- 
lision took  place  acting  in  the  service  and  about  the  business  of  the 
defendant ;  and  the  fact  of  the  horse  and  gig  belonging  to  Ta3-lor 
can  make  no  difference  ;  the  defendant  would  have  been  equally  lia- 
ble if  they  had  been  the  property  of  a  stranger.  Taylor  had  the 
general  management  of  the  defendant's  business.  A  horse  had  been 
sold  to  one  Smith,  and  Taylor  was  going  to  him  for  the  purpose  of 
obtaining  payment  for  it.  He  was  also,  it  is  true,  going  elsewhere, 
for  a  purpose  of  his  own  :  but  he  met  with  the  accident  before  he 
reached  Smith's.  [Willliams,  J.  —  Was  it  essential  to  the  master's 
business  that  the  journey  should  be  made  with  the  horse  and  gig?] 
Probably  not ;  but  Taylor  was  in  the  habit  of  going  about  his  mas- 
ter's business  with  the  horse  and  gig.    [Cockbukn.  C.  J.  —  Suppose 


SECT.  II.]  PATTEN    V.    KEA.  159 

the  master  had  said  to  him,  "  Go  to  such  a  place,"  without  more, 
would  he  be  liable?]  That  would  depend  upou  the  surrounding  cir- 
cumstances. Here,  the  evidence  was,  that  Taylor's  horse  and  gig 
were  kept  for  him  free  of  cost  upon  the  defendant's  premises,  that 
he  was  in  the  habit  of  using  them  when  going  upon  the  defendant's 
business,  and  that,  on  tlie  occasion  in  question,  the  defendant  knew 
where  he  was  going,  and  the  manner  of  going.  He  therefore  tacitl}' 
assented  to  his  going  in  that  manner.  The  case  of  Goodman  v. 
Keunell,  1  M.  &  P.  241,  is  ver}-  much  in  point.  There,  a  person 
occasionally  employed  by  the  defendant  as  his  servant,  being  sent 
out  b}-  him  on  his  business,  took  the  horse  of  another  person,  in 
whose  service  he  also  worked,  and,  in  going,  rode  over  the  plaintiff. 
At  the  trial,  it  was  left  to  the  jur}'  to  say  whether  or  not  the  horse 
was  taken  by  the  servant  with  the  implied  consent  or  authoiit}'  of 
the  defendant;  and,  they  having  found  a  verdict  for  the  plaintiff, 
the  court  refused  to  interfere.  Best,  C.  J.,  said  :  "  It  has  been  trulj' 
said  that  a  serv'ant's  riding  the  horse  of  another,  without  the  assent 
or  authority  of  his  master,  cannot  render  the  latter  answerable  for 
his  acts.  But  here  the  question  was,  whether  there  was  not  sufli- 
cient  evidence  to  show  that  Cocking  was  riding  the  horse  with  the 
defendant's  assent,  and  ou  his  business.  It  was  proved  that  Cocking 
was  the  servant  of  the  defendant ;  that  the  horse  was  in  his  stable ; 
and  that  on  the  da}-  the  accident  happened.  Cocking  was  going  on 
the  defendant's  business  or  employment.  The  proof  of  these  three 
facts  was  sufficient  to  raise  a  strong  presumption  that  Cocking  was 
using  the  horse  with  the  defendant's  consent."  Here,  the  proper 
question  was  left  to  the  jury,  —  did  Tajlor  go  in  the  gig  at  the  re- 
quest of  the  defendant,  or  with  his  assent?  The  jurj-  found  that  it 
was  done  with  the  defendant's  knowledge  and  assent.  [Crowder,  J. 
—  The  contention  was.  that,  in  order  to  render  the  defendant  liable, 
there  must  be  something  tantamount  to  a  command  by  the  master. 
The  rule  is  not  quite  correct  in  the  use  of  the  word  express.']  It  might 
almost  be  said  here  that  there  was  an  express  command.  [The  court 
called  on 

Athei'ton,  Q.  C,  and  Barnard,  to  support  the  rule.  —  This  is  an 
action  against  the  defendant,  not  for  an  act  or  omission  imputed  to 
him  personalh',  but  for  an  act  done  hy  his  servant.  That  Taylor  was 
at  the  time  of  the  accident  acting  in  the  service  of  the  defendant,  and 
about  his  business,  is  admitted.  That,  however,  is  not  enough  to  im- 
pose upon  him  this  liability.  The  rule  of  law  is  well  exemplified  by 
the  language  of  the  declaration  itself:  to  render  the  defendant  liable, 
Taylor  must  in  the  very  act  of  driving  have  been  acting  as  his  servant, 
and  not  upon  his  own  account.  A  man  may  be  the  servant  of  another 
at  the  time  of  doing  the  act  which  causes  the  injury,  without  that  other 
being  responsible  for  the  mode  of  doing  the  act.  The  question  is,  not 
whether  the  servant  was  engaged  on  his  master's  business,  but  whether 
he  was  going  in  the  particular  manner,  —  with  the  horse  and  chaise,  — 
as  his  servant.     The  mere  fact  of  the  master  seeing  him  about  tf)  start 


160  PATTEN    V.   KEA,  [CHAP.  II. 

in  the  chaise,  and  making  no  objection,  is  not  enough.  [Cockbdrn, 
C.  J.  —  Tliat  is  only  one  circumstance.  The  facts  seem  to  be  these  :  — 
Taylor  is  employed  in  the  general  management  of  the  defendant's  busi- 
ness. He  possesses  a  horse  and  gig ;  and  it  is  mutually  agreed,  that, 
in  consideration  of  the  use  of  the  horse  and  gig  by  Taylor  for  the  pur- 
pose of  the  defendant's  business,  they  shall  be  kept  upon  the  defend- 
ant's premises  without  charge.  Upon  the  occasion  in  question,  Taylor 
was  going  out  upon  his  master's  business  ;  the  master  saw  him  start 
upon  the  journey,  and  thereby  assented  to  that  mode  of  performing  the 
service.  The  knowledge  of  the  master  was  only  one  circumstance,  in 
addition  to  the  other  and  more  material  ones.  I  think  it  was  a  question 
for  the  jury,  and  that  there  was  abundant  evidence  for  them.]  There 
was  no  evidence  of  any  agreement  or  arrangement  to  the  effect  just 
stated.  There  was  no  bargain  that  the  use  of  the  horse  and  gig  for  the 
purpose  of  the  defendant's  business  should  be  an  equivalent  for  the 
horse's  keep.  [Cockburn,  C.J.  —  It  was  a  tacit  arrangement.  That 
seems  to  have  been  assumed  on  all  hands.]  Suppose  a  master  desires 
his  servant  to  go  to  a  certain  place,  and  the  servant  of  his  own  accord 
borrows  a  friend's  horse  for  the  purpose  of  riding  there,  and  his  master 
meets  him  by  accident  on  the  wa}-,  and  says  nothing,  —  could  it  be  con- 
tended, that,  in  riding  that  horse,  the  man  was  acting  in  the  service  of 
his  master,  so  as  to  make  him  responsible  for  auy  misadventure  of  the 
servant  on  the  road?  [Crowder,  J.  —  You  must  not  lose  sight  of  the 
other  facts.  Taylor  was  manager  at  the  defendant's  establishment ; 
and  his  horse  and  gig  were  kept  there  without  charge,  and  were  used 
by  him  from  time  to  time  upon  his  master's  business.]  There  was  no 
evidence  of  any  contract  which  made  it  his  dut}'  to  use  the  horse  and 
chaise  in  his  mastei"'s  service.  It  clearly  was  a  misdirection  not  to  leave 
it  to  the  jury  to  sa}'  whether  the  horse  and  gig  were  used  by  Taylor  on 
his  master's  business,  at  the  instance  and  request,  express  or  implied, 
of  the  defendant.  [Cockburn,  C.  J.  —  I  think  the  master  would  have 
been  liable  if  Taylor  had  taken  the  horse  and  chaise  without  his 
knowledge.  I  think  there  was  abundant  evidence  for  the  jury,  inde- 
pendently of  that  fact.]  To  justify-  the  verdict,  it  should  have  been 
found  as  a  fact  that  there  was  some  obligation,  some  binding  contract, 
on  the  part  of  Taylor  to  find  a  horse  and  gig  for  the  service  of  his 
master. 

Cockburn,  C.  J.  I  am  clearl}'  of  opinion  that  this  rule  must  be 
discharged.  I  concur  in  the  argument  urged  by  the  defendant's  coun- 
sel, to  this  extent,  that,  to  render  the  master  liable,  it  is  not  enough  to 
show  that  the  person  driving  the  vehicle  which  causes  the  damage  is 
his  servant,  but  that  it  must  be  shown  that  the  servant  was  driving 
with  his  master's  authorit}'  and  upon  his  business.  Now,  I  tliink  there 
was  abundant  evidence  here  that  Taylor  was  driving,  at  the  time  the 
accident  occurred,  with  the  defendant's  authorit}'  and  in  the  course  of 
business  as  his  servant.  Taylor,  it  appears,  was  the  general  manager 
of  the  defendant's  establishment;  and,  being  so,  he,  either  by  express 
agreement  or  by  some  tacit  arrangement,  was  in  the  habit  of  using  in 


SECT.  II.]  PATTEN    V.    REA.  161 

transacting  the  defendant's  business  a  horse  and  gig,  his  own  property-, 
which,  in  consideration  of  that  arrangement,  were  kept  for  him  upon  the 
defendant's  premises  free  of  charge.  Looking  at  these  circumstances, 
and  considering  the  nature  of  the  business,  I  tiiink  Taylor  must  be  as- 
sumed to  liuv'e  had  authority  to  exercise  iiis  discretion  as  to  the  mode 
of  performing  his  duty  to  his  master.  Adding  to  this  the  fact  tliat  the 
master  knew  that  his  servant  was  using  the  horse  and  gig  on  the  partic- 
ular occasion,  I  think  the  evidence  was  ample  to  show  that  what  was 
done  had  the  sanction  and  authorit}-  of  the  master.  That  question  was 
not  at  all  withdrawn  from  the  jury.  The  contention  on  the  part  of  the 
defendant  at  the  trial  was,  that  he  was  not  responsible  for  the  damao^e, 
because  the  horse  and  gig  were  the  propert3'  of  Taylor,  and  because 
there  was  no  evidence  of  any  express  command  from  the  defendant  to 
Taylor  to  use  the  horse  and  gig  upon  the  occasion  in  question.  I  think 
the  former  part  of  the  argument  is  met  by  the  fact  that  the  horse  and 
gig  were  kept  by  the  defendant  free  of  charge  to  Taylor,  and  were  ordi- 
narily used  by  him  in  the  performance  of  journeys  about  his  master's 
business,  and  the  latter  by  the  fact  that  the  master  was  cognizant  of  the 
course  which  iiis  servant  was  pursuing  at  the  time,  and  did  not  dissent. 
I  think  the  case  was  properly  presented  to  the  jury,  and  that  there  is 
no  ground  for  saying  that  the  verdict  was  not  well  warranted  by  the 
evidence. 

Williams,  J.  I  am  entirely  of  the  same  opinion.  I  agree  with 
Mr.  Atherton,  that,  in  cases  of  this  sort,  the  real  question  is,  whetlier 
the  servant  while  doing  the  negligent  act  complained  of  was  acting  as 
the  agent  of  the  defendant.  That  is  demonstrated  b}'  the  consideration 
that  the  plaintiff  in  declaring  in  such  an  action  has  the  option  of  alleg- 
ing the  negligent  act  to  be  the  act  of  the  servant,  or  of  relying  upon  the 
legal  effect,  and  alleging  it  to  be  the  act  of  the  master.  Thus,  in 
Brucker  v.  Fromont,  6  T.  R.  659,  it  was  held  that  a  declaration  which 
charges  the  defendant  with  having  negligently  driven  his  cart  against 
the  plaintiffs  horse,  is  supported  by  evidence  that  the  defendant's  ser- 
vant drove  the  cart.  I  think  there  was  ample  evidence  here  that  Taylor, 
at  the  time  of  the  accident,  was  acting  as  the  servant  and  by  the  author- 
ity of  the  defendant.  It  was  incumbent  on  the  plaintiff,  no  doubt,  to 
show  that  Taylor  acted  as  the  defendant's  agent  in  the  employment  of 
the  horse  and  gig  upon  the  particular  occasion.  I  think  there  was  evi- 
dence enough  of  that  for  the  jury,  and  that  that  question  was  properly 
left  to  them.  The  rule  does  not  complain  that  it  was  not  so  left :  the 
complaint  is.  that  my  Brother  Crowder  misdirected  the  jury  in  not 
leaving  to  them  the  question  whether  the  horse  and  gig  driven  bj- 
Taylor  were  used  by  him  on  his  masters  business,  at  the  instance 
and  express  request  of  the  defendant.  Now,  it  clearly  is  not  necessary- 
'm  cases  of  this  sort  that  there  should  be  any  express  request :  the 
jury  may  imph'  a  request  or  assent  from  the  general  nature  of  the  ser- 
vant's duty  and  employment.  There  was  ample  evidence  of  such  implied 
request  or  assent  here.  The  only  other  complaint  made  of  the  direction 
was  not  relied  on  by  Mr.  Atherto?i  in  his  argument  in  support  of  the 

U 


162  WEED   V.    PANAMA    RAILROAD   CO.  [CHAP.  IL 

rule  :  nor  could  it  have  been  with  any  hope  of  success.  Upon  neither 
ground,  therefore,  can  this  rule  be  sustained. 

WiLLEs,  J.  I  am  clearl}'  of  the  same  opinion.  The  argument  urged 
on  tlie  part  of  tlie  defendant  amounts  in  substance  to  a  denial  of  the 
general  rule  laid  down  by  Lord  Holt  in  Turberville  v.  Stampe,  1  Lord 
Ravm.  26G,  that  "a  master  is  responsible  for  all  acts  done  by  his  ser- 
vant in  the  course  of  his  employment,  though  without  particular  direc- 
tions." Was  Taylor  at  tlie  time  the  accident  complained  of  happened 
acting  in  the  course  of  his  employment?  It  appears  that  part  of  the 
terms  of  his  employment  was  that  he  should  have  the  benefit  of  the  keep 
of  his  horse  and  the  standing  of  his  gig  upon  his  master's  premises,  in 
consideration  of  his  using  tliem  when  going  about  his  master's  business  ; 
and  that  he  was  actually  engaged  on  his  master's  business,  viz.  going 
to  collect  a  debt  due  to  him,  at  the  time.  And  it  further  appears  that 
his  master  knew  that  he  was  going,  and  in  what  manner  he  was  going. 
The  master  is  clearly  reponsible. 

Crowdeu,  J.,  said  nothing.  Eule  discharged. 


WEED  AND  ANOTHER  V.  THE  PANAMA  RAILROAD  COMPANY. 

Court  of  Appeals  of  New  York.     1858. 
[17  iV.  y.  362.] 

Appeal  from  the  Superior  Court  of  New  York  City.  The  action 
was  brought  b}'  husband  and  wife  to  recover  damages  for  breach  of 
duty  by  the  defendant  as  a  carrier  of  passengers,  whereby  the  wife  was 
injured  in  her  iiealth.  On  the  trial  before  Mr.  Justice  Oakley  and  a  jury, 
it  was  proved  that  in  August,  1854,  the  plaintiffs  were  passengers  on  a 
train  of  cars  of  the  defendant  from  Obispo  to  Aspinwall,  about  thirty 
miles  distant.  The  train  proceeded  about  seven  miles  on  the  route,  to 
a  place  called  the  Barbacoas  Switch,  where  it  was  detained  during  a 
night,  and  did  not  reach  Aspinwall  until  the  afternoon  of  the  day  fol- 
lowing. There  were  about  four  hundred  passengers  on  the  train,  who 
remained  in  the  cars  during  the  night,  from  inabilit}'  to  procure  other 
accommodations.  The  weather  was  stormy,  and  the  wife  was  taken 
sick  in  the  night  and  experienced  great  suffering.  Much  evidence  was 
given  tending  to  prove  that  in  consequence  of  the  detention  her  health 
was  greatly  and  perraanentl}'  injured. 

In  summing  up,  the  plaintiffs'  counsel  insisted  that  the  evidence  es- 
tablished that  the  conductor  designedly  left  the  train  at  the  Barbacoas 
Switch,  having  that  intention  wlien  he  left  Obispo,  and  that  for  this 
reason  exemplar}-  damages  might  be  given.  He  claimed  damages  on 
the  ground  of  wilful  misconduct  and  negligence.  The  counsel  for  the 
defendant  asked  the  court  to  charge  the  jury  that  if  the  conductor  acted 
wilfull}'  in  the  detaining  of  the  train  the  defendant  was  not  liable  for  that, 
as  there  was  no  evidence  that  defendant  authorized  or  approved  such 


SECT.  II.J  WEED    V.    PANAMA    RAILROAD   CO.  163 

nnsconduct.  The  justice  refused  so  to  charge,  and  to  such  refusal  the 
defendant's  counsel  excepted.  The  justice  then  directed  the  jiUT,  among 
other  things,  that  altliough  the}'  should  find  that  the  conductor  acted 
wilfull}'  in  the  detention  of  the  train,  the  defendant  would  not  for  that 
reason  be  entitled  to  a  verdict ;  to  which  the  defendant's  counsel  ex- 
cepted. The  justice,  after  delivering  his  charge,  directed  tlie  jury  to 
answer  the  following  questions,  which  were  submitted  to  tliem  in  writ- 
ing :  First.  Was  the  detention  at  the  Barbacoas  Station,  liy  the  con- 
ductor of  the  defendant,  a  wilful  act  of  the  conductor?  Second.  In 
detaining  the  train  as  lie  did  there,  did  the  conductor  act  negligenth'  or 
without  reasonable  care  and  judgment?  The  counsel  for  the  defendant 
excepted  to  the  submission  of  the  first  question  to  the  jur}-.  The  jury 
answered  each  of  these  questions  in  the  allirmative,  and  rendered  a 
verdict  for  the  plaintiffs,  assessing  damages  at  $2,000.  Judgment  was 
sus[)ended  and  a  case  made  which,  in  pursuance  of  a  direction  at  the 
close  of  the  trial,  was  argued  at  a  general  term,  where  judgment  was 
rendered  for  the  plaintiffs  on  the  verdict.  The  defendant  appealed  to 
this  court. 

James  T.  Brady,  for  the  appellant. 

A.  J.   IrVillard,  for  the  respondents. 

Strong,  J.  The  i)rincipal  question  in  this  case  is,  whether  the  de- 
fendants are  liable  for  the  detention  of  the  train  producing  damages  to 
the  wife,  although  the  detention  was  the  wilful  act  of  the  conductor, 
neither  authorized  nor  approved  b}'  the  defendants.  The  obligation  of 
the  defendants  from  receiving  the  wife  on  their  train  of  cars  to  be  carried 
to  Aspinwall  and  proceeding  with  the  train  part  of  the  distance,  to 
carr3'  her  to  that  place  with  all  reasonable  diligence,  is  not  disputed  by 
them  and  admits  of  no  doubt.  (Story  on  Bailment,  §  545  ;  Wibert  v. 
New  York  &  Erie  Railroad  Co.,  2  Kern.  253.)  Nor  is  it  claimed  by 
them  that  detention  and  delay  on  the  route,  from  the  mere  negligence 
of  the  conductor  or  other  servants  of  the  defendants  connected  with 
the  management  of  the  train,  occasioning  damage  to  the  wife,  would 
not  be  a  breach  of  the  obligation  for  which  the  defendants  would  be 
responsible  ;  but  they  insist  that  their  obligation  is  not  broken  and  that 
they  are  not  liable  for  the  wilful  act  of  the  conductor  followed  by  such 
a  result;  and  they  invoke  in  support  of  their  position  the  rule,  well 
sustained  by  principle  and  authority,  that  a  master  is  not  liable  for  a 
wilful  trespass  of  his  servant. 

It  is  important,  therefore,  to  inquire  whether  that  rule  extends  to  a 
case  like  the  present,  and  for  that  purpose,  to  consider  the  basis  on 
which  it  is  founded.  The  reason  of  the  rule  clearly  appears  by  the 
cases  in  which  it  has  been  declared  and  applied.^  .  .  .  All  the  cases  on 
the  subject,  so  far  as  I  have  observed,  agree  in  regard  to  the  principle  of 

1  Here  were  stated  M'Manus  v.  Crickett,  ante,  p.  102 ;  Wright  v.  Wilcox,  ante,  p.  1 1 8 ; 
Richmond  Turnpike  Co.  v.  Vanderbilt,  1  Hill,  480  ;  s.  c  4  N.  Y.  479.  Reference  waf 
also  made  to  Hibbard  v.  New  York  &  Erie  Ry.  Co.,  15  N.  Y.  455,  467,  468  ;  and  Story 
on  Agency,  §§  456-462.  —  Ed. 


164  WEED   V.    PANAMA    RAILROAD    CO.  [CHAP.  IL 

the  rule,  and  also  in  limiting  the  rule  to  that  principle.  For  acts  of  an 
agent  within  his  authorit}-,  the  principal  is  liable,  but  not  for  wilful  acts 
without  his  autliority.  (Phil.  &  Read.  R.  R.  Co.  v.  Derby,  14  How. 
U.  S.  R.  4GH.) 

In  the  light  of  this  examination  of  the  class  of  cases  which  has  been 
considered,  it  cannot  fail  to  be  seen  that  there  is  an  important  differ- 
ence between  tliose  cases  and  the  one  before  the  court.  Tlie  former 
are  cases  of  wilful,  unauthorized,  wrongful  acts  by  agents,  unapproved 
by  their  principals  occasioning  damage,  but  which  do  not  involve  nor 
work  an}'  omission  or  violation  of  duty  by  their  principals  to  the  per- 
sons injured  ;  wrongs  by  the  agents  only,  with  which  the  principals  are 
not  legally  connected.  In  the  present  case,  b}-  means  of  the  wrongful, 
wilful  detention  by  the  conductor,  the  obligation  assumed  by  the  de- 
fendants to  carry  the  wife  with  proper  speed  to  her  destination,  unless 
this  wilful  wrong  of  the  conductor  was  an  excuse  to  them,  was  broken. 
The  real  wrong  to  the  wife  in  this  case,  and  from  which  the  damage 
proceeded,  was  the  not  carrying  her  in  a  reasonable  time  to  Aspinwall, 
as  the  defendants  had  undertaken  to  do ;  and  this  was  a  wrong  of  the 
defendants,  the  carriers,  unless  the  law  excused  them  for  their  delay  on 
account  of  the  misconduct  of  their  agent.  It  is  for  this  alleged  wrong 
of  the  defendants  in  not  performing  their  duty  as  carriers  with  reasona- 
ble diligence,  from  which  injury  has  been  experienced,  that  this  action 
was  brought ;  and  the  only  question  in  relation  to  the  point  under  con- 
sideration would  seem  to  be,  whether  they  can  defend  themselves  by 
showing  that  the  delay  on  the  route  was  the  wilful  wrong  of  one  of 
their  servants.  The  jur}'  have  found,  as  necessarily  included  in  their 
general  verdict  for  the  plaintiffs,  that  the  defendants  did  not  use  due 
diligence ;  but  they  have  also  found,  in  answer  to  a  special  inquiry', 
that  the  detention  to  which  it  was  owing  was  a  wilful  act  of  the  conduc- 
tor. Upon  these  findings,  connected  with  the  exceptions  to  the  refusal 
of  the  judge  to  charge  that  if  the  conductor  acted  wilfully  in  detaining 
the  train  the  defendants  were  not  liable  and  charging  the  contrarv,  the 
question  must  be  whether  the  fact  that  the  detention  was  a  wilful  wrong 
of  the  conductor  at  all  varies  the  law  of  the  case. 

Viewing  the  general  question,  as  it  appears  to  be  clear  we  must,  as 
being  whether  the  defendants  have  discharged  their  duty  as  carriers, 
and  the  particular  point  of  inquiry',  whether  the  circumstance  that  the 
detention  was  a  wilful  act  of  their  servant  will  excuse  what  will  other- 
wise be  a  want  of  proper  diligence,  this  part  of  the  case  is  relieved 
from  difficult}'.  If  the  detention  had  resulted  from  negligence  of  the 
conductor,  the  liability  of  the  defendants  would  be  unquestionable. 
A  master  is  answerable  for  negligence  of  his  servants  in  the  perform- 
ance of  their  duties.  (2  Kent.  Com.  601,  602.)  Story,  in  bis  Treatise 
on  Agency  (§  452),  sa3'S :  "  It  is  a  general  doctrine  that  a  principal  is 
liable  to  third  persons,  in  a  civil  suit,  for  the  frauds,  deceits,  conceal- 
ments, misrepresentations,  torts,  negligence,  and  other  malfeasances  or 
misfeasances  and  omissions  of  duty  of  his  agent  in  the  course  of  hia 


SKCT.  II.]  WEKD   V.    PANAMA    RAILROAD   CO.  165 

employment,  although  the  principal  did  not  authorize  or  justify  or  par* 
ticipate  in  or  indeed  know  of  such  misconduct,  or  even  if  he  forbade 
the  acts  or  disapproved  of  them,"  &c.  "  In  every  such  case,  the  prin- 
cipal holds  out  his  agent  as  competent  and  fit  to  be  trusted,  and  thereby, 
in  effect,  he  warrants  his  fidelity  and  good  conduct  in  all  matters  within 
the  scope  of  his  agency."  (Story  on  Bailm.,  §§  400-406;  Stokes  v. 
Saltonstall,  13  Pet.  U.  S.  R.  181.)  No  reasons  exist  for  holding  a 
master  liable  for  injuries  from  negligence  of  his  servants  in  his  employ- 
ment, which  do  not  equally  and  with  like  force  preclude  him  from  alleg- 
ing an  intentional  default  of  a  serv^ant  as  an  excuse  for  delay  in  the 
performance  of  a  duty  the  master  has  undertaken.  In  the  former  case, 
the  negligence  of  the  servant  is  that  of  the  master,  and  that  is  the 
ground  of  the  master's  liability  ;  in  the  latter,  the  act  of  the  servant  is 
the  act  of  the  master,  constituting  negligence  of  the  master  ;  the  motive 
of  the  servant  making  no  difference  in  regard  to  the  legal  character  of 
the  master's  default  in  doing  his  dut}'.  The  obligation  to  be  performed 
was  that  of  the  master,  and  delay  in  performance,  from  intentional  vio- 
lation of  duty  by  an  agent,  is  the  negligence  of  the  master. 

In  the  present  case,  the  defendants,  as  carriers,  were  bound  to  carry 
the  wife  tlie  entire  journe}'  with  reasonable  despatch,  but  the  conductor 
stopped  the  train  on  the  route  unreasonably,  in  known  disregard  of  his 
duty  ;  the  defendants  did  not  send  it  forward  as  it  was  their  duty  to  do, 
providing  another  conductor  if  that  was  necessary,  and  that  was  ncgli- 
gence  of  the  defendants.  It  must  be  assumed,  in  the  absence  of  any 
finding  or  even  proof  to  the  contrary,  that  it  was  practicable  for  the 
defendants  to  forward  the  train  without  injurious  dela}'. 

I  am  satisfied,  for  the  reasons  stated,  that  the  rule  of  law  relied  on 
by  the  defendants  to  sustain  their  position,  which  has  now  been  con- 
sidered, is  inapplicable  to  the  case. 

It  is  made  a  point  b}'  the  defendants  that  judgment  could  not  prop- 
erly be  rendered  against  them,  for  the  reason  that  the  findings  of  the 
jur}'  that  the  detention  was  a  wilful  act  of  the  conductor,  and  also  that 
in  detaining  the  train  he  acted  negligenth"  or  without  reasonable  care 
and  judgment,  are  inconsistent  with  each  other ;  but  in  the  view  I  have 
taken  of  the  case,  whether  the  act  was  wilful  or  negligent  makes  no 
difference  as  to  the  liabilit}'  of  the  defendants  ;  in  either  aspect  the 
judgment  was  right. 

Harris,  J.,  did  not  sit  in  the  case  :  all  the  other  judges  concurring. 

Judgment  affirmed}' 

1  In  Craker  i-.  Chicago  &  Northwestern  Railway  Co.,  36  Wis.  657,  668-669  (1875), 
Ryax,  C.  J.,  said  :  "  We  cannot  help  tliinking  that  there  has  been  some  useless  subtlety 
in  the  books  in  the  application  of  the  rule  respondeat  superior,  and  some  unnecessary 
confusion  in  the  liability  of  principles  for  wilful  and  malicious  acts  of  agents.  This 
has  proliably  arisen  from  too  broad  an  application  of  the  dictum  of  Lord  Holt,  that 
'  no  master  is  chargeable  with  the  acts  of  his  servant  but  when  he  acts  in  the  execu- 
tion of  the  authority  given  to  him,  and  the  act  of  the  servant  is  the  act  of  the  master.' 
Middleton  v  Fowler,  1  Salk.  282.  For  this  would  seem  to  go  to  excuse  the  master  foi 
the  negligence  as  well  as  for  the  malice  of  his  servant.     One  employing  another  in 


166  SEYMOUR  V.   GREENWOOD.  [CHAP.  IL 


SEYMOUR  V.   GREENWOOD. 

Exchequer.     1861. 
[6  H.  ^'  N.  359.] 

Declaration.  That  the  plaintiff  was  a  passenger  for  reward  in 
and  upon  a  certain  carriage  of  tlie  defendant,  used  for  the  conveyance 
of  passengers  in  a  certain  public  street  in  the  cit\'  of  Manchester,  to 
wit,  Clicster  Road,  and  being  and  while  he  was  such  passenger,  the 
defendant  and  his  servants  so  negligently  and  improperly  conducted 
themselves  in  and  about  the  driving,  managing  and  conducting  of  the 
said  carriage,  that  the  plaintiff  was  thereby  cast  from  the  said  carriage 
to  the  ground  with  great  violence,  and  his  skull  was  fractured  and  his 
legs  crushed  and  bruised,  and  he  suffered  great  personal  injuries,  &c. 

Pleas.  First:  Not  guilty.  Secondly,  that  the  plaintiff  was  not  a 
passenger. 

At  the  trial,  before  Blackburn,  J.,  at  the  last  Liverpool  Spring 
Assizes,  it  appeared  that  the  action  was  brought  against  the  defendant, 
the  proprietor  of  an  omnibus,  by  the  plaintiff,  who  had  been  forcibly 
removed  from  the  omnibus  by  the  guard  in  charge  of  it,  whereby  the 
plaintiff's  skull  was  fractured.  The  plaintiff's  witnesses  proved  that 
the  plaintiff  pulled  the  wire  and  the  bell  rung.     The  guard  then  went 

good  faith  to  do  his  lawful  work,  would  be  as  little  likely  to  authorize  negligeute  as 
malice  ;  and  either  would  then  be  equally  dehors  the  employment.  Strictly,  the  act  of 
the  servant  would  not,  in  either  case,  be  the  act  of  the  master.  It  is  true  that  so  great 
an  authority  as  Lord  Kenyon  denies  this  in  the  leading  case  of  McManus  v.  Crickett, 
1  East,  106,  which  has  been  so  extensively  followed;  and  again,  in  Ellis  v.  Turner,  8 
Term,  5.31,  distinguishes  between  the  negligence  and  the  wilfulness  of  the  one  act  of 
the  agent,  holding  the  principal  for  the  negligence  but  not  for  the  wilfulness.  It  is  a 
singular  comment  on  these  subtleties,  that  McManus  v.  Crickett  appears  to  rest  on 
Middleton  v.  Fowler,  the  only  adjudged  case  cited  to  support  it ;  and  that  Middleton 
V.  Fowler  was  not  a  case  of  malice,  but  of  negligence,  Lord  Holt  holtling  the  master 
in  that  case  not  liable  for  the  negligence  of  his  servant,  in  such  circumstances  as  no 
court  could  now  doubt  the  master's  liability.  In  spite  of  all  the  learned  subtleties  of 
so  manv  cases,  the  true  distinction  ought  to  rest,  it  appears  to  us,  on  the  condition 
whether  or  not  the  act  of  the  servant  be  in  the  course  of  his  employment,  as  is  virtu- 
ally recognized  in  Ellis  c.  Turner. 

"  But  we  need  not  pursue  the  subject.  For,  however  that  may  be  in  general,  there 
can  be  no  doubt  of  it  in  tliose  employments  in  which  the  agent  performs  a  duty  of  the 
principal  to  third  persons,  as  between  such  third  persons  and  the  principal.  Because 
the  principal  is  responsible  for  the  duty,  and  if  he  deleg;-oe  it  to  an  agent,  and  the 
agent  fail  to  perform  it,  it  is  immaterial  whether  the  failure  be  accidental  or  wilful, 
in  the  negligence  or  in  the  malice  of  the  agent ;  the  contract  of  the  principal  is  equally 
broken  in  the  negligent  disregard,  or  in  the  malicious  violation,  of  the  duty  by  the 
agent.  It  would  be  cheap  and  superficial  morality  to  allow  one  owing  a  duty  to  an- 
other to  commit  the  performance  of  his  duty  to  a  third,  without  responsibility  for  the 
malicious  conduct  of  the  substitute  in  performance  of  the  duty.  If  one  owe  bread  to 
another  and  appoint  an  agent  to  furnish  it,  and  the  agent  of  malice  furnish  a  stone 
instead,  the  principal  is  responsible  for  the  stone  and  its  consequences.  In  such  cases, 
malice  is  negligence.  Courts  are  generally  inclining  to  this  view,  and  this  court  long 
eince  affirmed  it."  —  En. 


SECT.  II.]  SEYMOUR  V.    GREENWOOD.  167 

into  the  omnibus  and  seized  the  plaintiff  b}'  the  collar.  The  plaintiff 
offering  no  resistance,  tlie  guard  backed  himself  out  of  the  omnibus, 
drawing  the  plaintiff  after  him,  and  threw  the  plaintiff  upon  the  road. 
Tlie  plaintiff  fell  to  the  ground,  and  a  cab,  coming  up,  went  over  him. 
The  guard  did  not  fall.  This  was  in  August,  1859.  In  December  the 
plaintiff's  attorney  wrote  to  the  defendant  as  follows  :  — 

"Sir,  —  I  have  been  requested  by  Mr.  Seymour  to  write  to  you  in 
reference  to  the  serious  injuries  he  sustained  at  the  hands  of  your  ser- 
vants on  the  22nd  of  August  last. 

"  I  may  state  that  he  was  a  passenger  on  that  day  in  your  omnibus, 
&c.  He  signalled  the  guard  to  stop  and  let  him  alight.  B}-  the  neg- 
ligence and  improper  conduct  of  the  guard,  Mr.  Seymour  was  cast 
with  great  violence  upon  the  roadway.  One  of  your  Hansom  cabs, 
which  was  following  the  omnibus,  immediatelv  came  into  contact  with 
Mr.  Seymour's  head.  I  shall  be  glad  to  receive  any  communication 
from  you  upon  the  subject,  &c. 

"  I  am,  sir, 
"Mr.  John  Greenwood.  R.  W.  Stead." 

In  consequence  of  that  letter  a  person  named  Baxter  called  on  the 
plaintiff's  attorne}-.  He  said  that  Mr.  Seymour  was  mistaken  in  sig- 
nalling the  guard  to  stop ;  that  he  was  drunk,  and  had  refused  to  pay 
his  fare  ;  that  he  had  created  a  disturbance  in  the  omnibus  lower  down 
the  road  ;  that  he  had  first  assaulted  the  guard,  and  that  there  had 
been  a  scuffle,  and  that  in  the  scuffle  they  had  both  rolled  out  into  the 
road. 

On  cross-examination,  the  plaintiff  said  his  memor}'  was  much  affected 
by  the  accident,  but  he  believed  he  was  not  drunk  at  the  time,  but  he 
admitted  that  he  had  been  diinking. 

At  the  conclusion  of  the  plaintifl"'s  case,  the  defendant's  counsel 
submitted  that  there  was  no  evidence  to  charge  the  defendant  with  the 
assault  committed  b}'  his  servant,  which  was  not  an}'  negligence  in  the 
performance  of  his  duty,  but  an  unwarrantable  assault;  and  a  verdict 
was  entered  for  the  plaintiff  with  leave  to  the  defendant  to  move  to 
enter  a  nonsuit,  if  the  court  should  be  of  opinion  that  there  was  no 
evidence  on  which  the  jury  might  reasonabh-  find  that  the  act  of  the 
servant  was  one  for  which  the  defendant  was  answerable. 

T.  'Tojies,  having  obtained  a  rule  ''  to  show  cause  why  the  verdict 
found  for  the  plaintiff  on  the  trial  of  this  cause,  &c.,  should  not  be  set 
aside,  and  a  nonsuit  entered  on  the  ground  agreed  upon,  that  there  was 
no  evidence  to  go  to  the  jur}-." 

Monk  and  Wheeler  now  showed  cause.  The  question  is,  whether 
at  the  time  when  the  act  complained  of  was  committed,  the  guard  was 
acting  as  the  servant  of  the  defendant.  In  Eex  v.  Gutch,  M.  &  M. 
433,  Lord  Tenterden  ruled  that  the  proprietor  of  a  newspaper,  who 
intrusts  the  conduct  of  the  publication  to  one  whom  he  selects,  is  crimi- 
nally answerable  for  a  libel  published  in  such  newspaper,  though  it  is 
not  shown  that  he  was  individually  concerned  in  the  particular  publi- 


168  SEYMOUR  V.    GREENWOOD.  [CHAP.  II. 

cation.  One  of  the  tests  whether  the  maxim  "respondeat  superior" 
applies  is,  wlietlier  the  party  was  enabled  to  do  the  wrongful  act  by 
reason  of  his  employment.  Plere  there  was  evidence  that  the  plaintiflE 
was  drunk,  and  it  may  well  have  been  tiie  duty  of  the  guard  to  remove 
him  in  a  careful  manner.  The  removal  of  the  plaintiff  from  the  omnibus 
was  then  an  act  done  by  the  guard  with  the  defendant's  authority,  and, 
in  the  ordinar}'  course  of  the  employment  intrusted  to  him  ;  and  it  was, 
therefore,  an  act  for  which  the  defendant  is  responsible  :  Patten  v.  Rea, 
2  C.  B.  N.  S.  606.  The  defendant  does  not  suggest  that  the  act  of  the 
guard  was  malicious.  [Pollock,  C.  B.  In  removing  the  plaintiff 
from  the  omnibus,  the  guard  seems  to  have  acted  so  carelessly  as  to 
injure  the  plaintiff.  Martin,  B.  The  only  question  is  whether  there 
was  evidence  for  the  jury.] 

T.  Jones^  in  support  of  the  rule.  It  may  be  conceded  that  the 
question  is  wliether  there  was  any  evidence  for  the  jury.  It  is  sub- 
mitted that  the  guard  was  a  trespasser,  and  that  the  defendant  is  not 
liable  for  his  act.  A  master  is  not  liable  for  the  trespass  of  his  ser- 
vant. [Martin,  B.  If  a  servant  drives  his  master's  carriage  against 
another,  the  servant  is  liable  in  trespass,  the  master  in  case.]  Was 
the  act  one  wliich  the  relation  between  the  guard  and  the  defendant 
warranted  him  in  doing?  A  master  is  not  liable  except  for  acts  of 
omission  on  the  part  of  the  servant  —  not  for  acts  of  commission. 
Here  what  is  complained  of  is  a  trespass  —  an  act  committed  —  not  an 
act  of  omission,  such  as  negligence  in  driving  or  managing  the  omnibus. 
By  the  concurrent  testimony  of  all  the  witnesses,  without  provocation 
the  guard  dragged  the  plaintiff  out  of  the  omnibus,  and  threw  him  on 
the  ground.  [Channell,  B.  Suppose  the  plaintiff,  being  a  passenger, 
had  grossly  misconducted  himself,  the  guard  would  have  been  justified 
in  removing  him  without  unnecessary  violence.  Therefore,  if  the 
representation  of  Baxter  is  well  founded,  it  may  show  that  the  guard 
had  the  authority  of  the  defendant  to  remove  the  plaintiff,  and,  in  so 
doing,  was  engaged  in  the  business  of  his  master :  Mitchell  v.  Crass- 
weller,  13  C.  B.  237.]  M'Manus  v.  Crickett,  1  East,  106,  shows  that  a 
master  is  not  liable  in  trespass  for  the  wilful  act  of  his  servant,  as  by 
driving  his  master's  carriage  against  another,  done  without  the  direc- 
tion or  assent  of  the  master.  [Pollock,  C.  B.  Suppose  a  servant 
driving  along  a  road  in  order  to  avoid  supposed  danger  intentionally 
drove  against  the  carriage  of  another,  would  not  the  master  be  respon- 
sible?] Not  if  the  servant  transgressed  the  line  of  his  dut}'.  In 
M'Manus  V.  Crickett,  Lord  Kenyon  cites  Bro.  Ab.,  tit.  "Trespass," 
pi.  435,  where  it  is  said  :  "If  my  servant,  contrary  to  my  will,  chase 
my  beasts  into  the  soil  of  another,  I  shall  not  be  punished."  And  2 
Roll.  Ab.,  553,  "  If  my  servant,  without  m}'  notice,  put  my  beasts  inta 
another's  land,  my  servant  is  the  trespasser,  and  not  I."  In  Savignao 
V.  Roome,  6  T.  R.  125,  it  was  held  that  an  action  on  the  case,  stating 
that  the  defendant's  servant  wilfully  drove  against  the  plaintiffs  car- 
riage, whereby  it  was  damaged,  could  not  be  supported,  and  the  court 


SECT.  II.]  SEYMOUR   V.    GREENWOOD.  169 

arrested  the  judgment  on  that  ground.  In  Roe  v.  The  Birkenhead, 
Lancashire  and  Cheshire  Junction  Railway  Compan}-,  7  Exch.  36,  a 
railway  servant,  who  had  charge  of  a  train,  on  receiving  the  plaintiff's 
ticket,  told  him  he  had  come  by  the  wrong  train,  and  that  he  must  pay 
2.S.  (5d.  more.  This  the  i)hiiutitf  refused  to  pay,  and  he  was  thereupon 
taken  into  custody  h}"  a  railvva}'  servant,  under  the  direction  of  the 
superintendent.  The  court  held  that  the  plaintiff  was  bound  to  shovr 
that  the  person  by  whom  he  was  arrested  was  not  only  the  servant  of 
the  Compan}',  but  also  that  he  had  their  authorit}-  to  arrest  him. 
[Maiitin,  B.  That  case  goes  farther  than  any  other  on  this  sultject. 
CiiANNELL,  B.  Would  it  not  have  been  negligence  if  the  guard  took 
the  plaintiff  out  of  the  omnibus  and  left  him  in  the  middle  of  a  street  in 
a  crowded  thoroughfare,  when  he  was  too  drunk  to  walk?]  If  a  ser- 
vant is  guilty  of  anything  which  is  not  mere  want  of  skill  or  want  of 
care,  the  master  is  not  resjjonsible  :  Sharrod  r.  The  London  and  North 
Western  Railway  Com[)an\-,  4  Exch.  580  ;  Gregor}'  v.  Piper,  9  B.  &  C. 
591  ;  Timothy  v.  Simpson,  6  C.  &  P.  499. 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  rule  to  enter  a  non- 
suit must  be  discharged.  I  agree  with  my  brother  Martin  that  since 
the  case  of  Roe  r.  The  Birkenhead,  Lancashire  and  Cheshire  Railway* 
Company  the  courts  have  been  desirous  to  give  full  effect  to  tlie  rule 
by  which  a  master  is  made  responsible  for  want  of  care  on  the  part  of 
his  servants  in  executing  his  commands.  As  a  judge,  in  determining 
what  is  evidence,  and  as  a  juryman  in  giving  effect  to  it,  I  should  have 
decided  that  the  defendant's  servant  was  ejecting  a  troublesome  pas- 
senger from  the  omnibus  —  not  with  violence  and  brutality,  for  I  do 
not  believe  that  he  intended  to  do  more  than  put  the  plaintiff  safely  out 
of  the  omnibus,  and  that  his  act  in  so  doing  produced  the  mischief 
which  occurred.  I  think  then  that  there  was  evidence  that  the  defend- 
ant's servant  was  executing  his  master's  command,  but  with  a  want  of 
care  and  consideration.  I  adopt  the  definition  under  which  Mr.  Jones 
admits  that  his  client  would  be  liable.  The  law  on  this  subject  hag 
undergone  much  discussion  of  late  years.  At  the  time  of  the  decisions 
of  Scott  V.  Shepherd,  2  W.  Black.  892,  and  M'Manus  v.  Crickett,  the 
subject  had  not  been  so  thoroughly  considered  as  it  has  since  been. 
For  these  reasons,  I  think  that  the  rule  must  be  discharged,  and  my 
brother  Channell,  who  has  left  the  court,  is  of  the  same  opinion. 

Martin,  B.  The  question  is,  wliether  there  was  evidence  from 
which  a  jury  might  find  that  the  act  was  one  for  which  the  defendant 
was  responsible.  There  was  evidence  that  the  plaintiff  was  drunk,  and 
had  refused  to  pay  his  fare  ;  he  had  assaulted  the  guard,  and  a  scuffle 
took  place,  in  which  the  plaintiff  was  thrown  to  the  ground  and  injured. 
If  the  guard  used  unnecessary  violence,  the  defendant,  his  master,  is 
responsible.  There  are  man}-  cases,  of  which  Roe  v.  The  Birkenhead, 
Lancashire,  and  Cheshire  Railway  Company  is  one,  in  which  the  lia- 
bility  of  the  master  is  put  as  resting  upon  the  relation  of  principal  and 
agent ;  but  in  reality  it  depends  upon  the  relation  of  master  and  sei> 


170  LIMPUS    V.    LONDON   GENERAL    OMNIBUS    CO.         [CHAP.  IL 

vant.  If  the  act  is  one  within  the  scope  of  the  servant's  employment, 
and  is  done  in  the  master's  service,  an  action  lies  against  the  master, 
and  the  master  is  liable,  even  though  he  has  directed  the  servant  to  do 
nothing  wrong.  In  the  present  case  the  act  was  one  which  was  prop- 
erly within  the  scope  of  the  servant's  employment.  M'Manus  v. 
Crickett  is  ordinarily  cited  as  showing  that  the  master  is  not  liable  for 
the  malicious  act  of  his  servant.  Of  course  we  do  not  say  that  a  mas- 
ter is  responsible  for  everything  which  a  servant  does  in  the  course  of 
his  employment.  A  great  deal  has  been  said  as  to  the  act  being  one 
which  was  purelj'  a  trespass  ;  but  it  was  nothing  more  than  the  guard 
of  an  omnibus  putting  a  person  out  who  had  misconducted  himself. 
The  case  of  Roe  v.  The  Birkenhead,  Lancashire  and  Cheshire  Railway 
Compan}'  was  much  considered  in  this  court  in  the  cases  of  Wilson  v. 
The  Lancashire  and  Yorkshire  Railway  Company,  and  Farren  v.  The 
Lancashire  and  Yorkshire  Railway  Company.^  Hule  discharged.^ 


LIMPUS  V.  LONDON  GENERAL  OMNIBUS  COMPANY. 

Exchequer  Chamber.     1862. 

[1  H.  i-  C.  526.] 

Error  on  a  bill  of  exceptions.  The  declaration  stated  that  before 
and  at  the  time  of  the  committing  of  the  grievances,  &c.,  the  plaintiff 
was  lawfully  possessed  of  an  omnibus  and  harness,  and  of  horses 
drawing  the  same,  which  were  in  a  certain  public  highway.  And  the 
defendants  were  then  possessed  of  another  omnibus,  and  of  horses 
drawing  the  same,  which  were  then  under  the  care,  government  and 
direction  of  a  servant  of  the  defendants,  who  was  then  driving  the  same 
in  and  along  the  same  highwaj'.  Nevertheless,  the  defendants,  by  their 
said  servant,  so  carelessly,  negligentlj',  and  improperl}*  drove,  gov- 
erned, and  directed  their  said  omnibus  and  horses,  that  b}'  and  through 
the  mere  carelessness,  negligence,  and  improper  conduct  of  the  defend- 
ant by  their  said  servant  in  that  behalf,  the  said  horses  and  omnibus  of 
the  defendants  ran  against  and  came  in  collision  with  the  horses  and 
omnibus  and  harness  of  the  plaintiff,  and  overturned  and  broke  to 
pieces  and  damaged  the  said  omnibus  and  harness  of  the  plaintiff,  and 
bruised,  wounded,  and  injui'ed  one  of  the  horses  of  the  plaintiff.  3y 
means  whereof  the  plaintiff  was  put  to  and  necessarily  incurred  expense 
in  and  about  endeavoring  to  cure  his  said  horse  and  repairing  the 
damage  done  to  his  said  harness  and  omnibus,  &c. 

1  Not  reported.  A  short  note  of  these  cases  may  be  seen  in  27  Law  Times,  204.  — 
Rep. 

2  Acc:  Higgins  v.  Watervliet  Turnpike  Co.,  46  X.  Y.  23  (1871) ;  Bayley  v.  M.,  S. 
&  L.  Ry.  Co.,  L.  R.  8  C.  P.  148  (Ex.  Ch.,  187.3) ;  Hoffman  v.  N.  Y.  C.  &  H.  R.  Railroad 
Co.,  87  N.  Y.  2.0  (1881).  Seymour  v.  Greenwood  was  affirmed  in  the  Exchequer  Cham- 
ber, 7  H.  &  N.  355  {1861 ).  —  Ed. 


SECT.  II.]  LIMPUS   V.    LONDON   GENERAL   OMNIBUS   CO.  171 

Plea.  — Not  guilty.     Issue  thereon. 

The  cause  was  tried  before  Martin,  B.,  at  the  Middlesex  Sittings 
after  Michaelmas  terra,  18G1.  The  bill  of  exceptions  set  out  the 
Judge's  note  of  the  evidence,  which  was  (in  substance)  as  follows :  — 

The  driver  of  the  phuntiir's  omnibus  stated  that  on  the  27th  August 
he  left  the  bank  for  Hounslow.  Alter  he  had  passed  Sloane  Street  and 
was  going  towards  Kensington,  he  slopped,  about  the  barracks  at 
Knighlsbridge,  to  take  up  two  passengers.  Tlie  defendants'  omnibus 
then  passed  him,  and  got  ahead,  eight  to  a  hundred  yards.  In  passing, 
the  driver  eased  liis  pace,  and  witness  went  on  at  his  regular  pace  and 
overtook  him.  Tliere  was  room  in  the  road  for  five  or  six  omnibuses. 
AVhen  witness  got  up  to  the  defendants'  omnibus,  it  was  on  the  off  side 
of  the  road  rather  than  the  near  ;  but  there  was  plent3-  of  room  to  pass. 
As  witness  was  going  to  pass,  the  driver  of  the  defendants'  onniibus 
pulled  across  the  road,  and  one  of  tlie  hind  wheels  touched  the  shoulder 
of  witness's  near  horse.  Witness  called  out  and  tried  to  pull  up,  but 
could  not.  There  was  a  bank  there,  and  the  defendants'  driver  forced 
the  witness's  off  horse  on  to  the  bank.  The  wheels  of  plaintiff's 
omnibus  went  on  the  bank  and  threw  the  omnibus  over.  On  cross 
examination  the  witness  stated  that  the  defendants'  driver  pulled  his 
horses  towards  the  witness's  horses  to  prevent  him  passing. 

Another  witness  stated  that  the  defendants'  driver  drove  across  the 
road  purposely  to  prevent  the  progress  of  the  plaintiff's  omnibus,  and 
that  he  considered  it  a  reckless  piece  of  driving. 

On  behalf  of  the  defendants,  the  driver  of  their  omnibus  stated  that 
he  passed  the  plaintiffs  omnibus,  when  the  driver  pulled  up  on  his  near 
side  to  take  up  the  two  passengers.  Afterwards  the  plaintiff's  driver 
put  his  horses  into  a  gallop  to  overtake  the  defendants'  omnibus.  Tlie 
witness  proceeded  to  sa}' :  "I  pulled  across  him  to  keep  him  from 
passing  me,  to  serve  him  as  he  had  served  me.  His  omnibus  ran  upon 
the  bank  and  turned  over  on  its  side.     I  pulled  across  on  purpose." 

The  witness  stated  that-  he  was  furnished  with  the  following  card  : 
"  London  General  Omnibus  Company  (Limited). 

"Attention  is  particularly-  directed  to  the  following  regulation  of  the 
Company,  and  the  drivers  are  desired  to  act  in  accordance  therewith. 

"  During  the  journej-  he  must  drive  his  horses  at  a  stead}'  pace, 
endeavoring  as  nearly  as  possible  to  work  in  conformit}'  with  the 
time  list.  He  must  not  on  any  account  race  with  or  obstruct  another 
omnibus,  or  hinder  or  annoy  the  driver  or  conductor  thereof  in  his 
business,  whether  such  omnibus  be  one  belonging  to  the  Company  or 
otherwise. 

"  By  Order.  —  A.  G-.  Church,  Secretary, 
"31  Moorgate  St." 

Another  witness,  who  was  a  passenger  on  the  defendants'  omnibus 
stated  that  at  Knightsbridge  ther^  was  a  contention  between  the  con- 
ductors of  tlie  two  omnibuses  which  should  have  three  ladies,  who  got 
into  the  plaintiff's  omnibus.  The  defendants'  driver  wished  to  go  on  ; 
the  plaintiff 's  drove  him  across  the  road,  so  that  he  could  not  go  on. 


172  LLMPUS   V.    LONDON    GENEKAL    OMNIBUS    CO.  [CHAP.  II. 

The  defendants'  driver  said  :  "  I  will  serve  you  out  when  I  get  on  the 
road."  The  plaintiff's  omnibus  went  on  first,  and  stopped  at  the 
barracks  to  take  up  two  passengers,  when  the  defendants'  omnibus 
passed  it.  When  near  Gore  Lane,  the  defendants'  driver  maliciously 
and  spitefully  drove  his  horses  suddenly  to  the  footpath,  not  allowing 
the  after  omnibus  any  space  at  all. 

Martin,  B.,  directed  the  jury  "  that,  when  the  relation  of  master 
and  servant  existed,  the  master  was  responsible  for  the  reckless  and 
improper  conduct  of  the  servant  in  the  course  of  the  service  ;  and  that 
if  the  ]\\vy  believed  that  the  real  truth  of  the  matter  was  that  the 
defendants'  driver,  being  dissatisfied  and  irritated  with  the  plaintiff's 
driver,  whether  justly  or  unjustly,  by  reason  of  what  had  occurred,  and 
in  that  state  of  mind  acted  recklessl3',  wautonh',  and  improperl}',  but  in 
the  course  of  his  service  and  employment,  and  in  doing  that  which  he 
believed  to  be  for  the  interest  of  the  defendants,  then  the  defendants 
were  responsible  for  the  act  of  their  servant :  that  if  the  act  of  the 
defendants'  driver,  in  driving  as  he  did  across  the  road  to  obstruct  the 
plaintiff's  omnibus,  although  a  reckless  driving  on  his  part,  was  never- 
theless an  act  done  by  him  in  the  course  of  his  service,  and  to  do  that 
which  he  thought  best  to  suit  the  interest  of  his  employers  and  so  to 
interfere  with  the  trade  and  business  of  the  other  omnibus,  the  defend- 
ants were  responsible :  that  the  liability  of  the  master  depended  upon 
the  acts  and  conduct  of  the  servant  in  the  course  of  the  service  and 
employment ;  and  the  instructions  given  to  the  defendants'  driver,  and 
read  in  evidence  to  the  jur}',  were  immaterial  if  the  defendants'  driver 
did  not  pursue  them  ;  but  that  if  the  true  character  of  the  act  of  the 
defendants'  servant  was,  that  it  was  an  act  of  his  own,  and  in  order 
to  effect  a  purpose  of  his  own,  the  defendants  were  not  responsible." 

The  defendants'  counsel  excepted  to  the  said  ruling,  for  that  the  said 
Baron  misdirected  the  jury  in  telling  and  directing  them  as  aforesaid  ; 
and,  further,  that,  the  learned  Baron  ought  to  have  told  the  jury  that, 
if  the}'  believed  that  the  defendants'  driver  wilfully  drove  across  the 
road  as  aforesaid,  even  for  the  purpose  of  merely  obstructing  the  plain- 
tiff's omnibus,  the  defendants  were  not  responsible,  and  he  ought  to 
have  told  and  directed  the  jurj-  that  for  an  act  wilfully  done  by  the 
servant  of  the  defendants  against  the  orders  of  his  employers  contained 
in  the  said  paper  or  card,  even  though  at  the  time  of  doing  it  he  was  in 
the  course  of  driving  for  his  employers,  the  defendants  were  not  respon- 
sible :  that  the  learned  Baron  ought  to  have  told  the  jury  that  there 
was  no  evidence  to  justif}'  them  in  finding  that  the  driver  of  the  defend- 
ants' omnibus,  in  doing  the  act  complained  of,  was  acting  in  the  course 
of  his  employment ;  and  he  ought  to  have  told  them  that  there  was  no 
evidence  to  warrant  them  in  finding  for  the  plaintiff,  and  ought  to  have 
directed  them  to  find  their  verdict  for  the  defendants.  The  jury  gave  a 
verdict  for  the  plaintiff,  with  £35  damages. 

Mellish    {Matthews    with    him)  now  argued^    for   the   plaintiffs   in 

1  Before  Wightman,  J.,  Williams,  J.,  Crompton,  J.,  Willes,  J.,  Byles,  J, 
and  Blackburn,  J.  —  Rep. 


SECT.  IJ.]  LIMPUS   V.    LONDOxV    GENERAL    OMNIBUS   CO.  173 

error  (the  defendants  below).  The  direetion  of  tlie  learned  Judge  was 
erroneous.  There  was  evidence  that  the  defendants'  driver  wilfully 
and  recklessly  drove  across  the  plaintiff's  omnil>us  for  the  purpose  of 
impeding  its  progress.  It  is  not  contended  that  the  fact  of  the  servant 
having  committed  a  wilful  trespass  necessarily,  of  itself,  absolves  the 
master  from  responsibilit}',  but  it  is  submitted  that  a  master  is  not 
liable  for  a  wilful  trespass  committed  by  his  servant,  unless  it  was 
done  in  obedience  to  the  master's  orders,  or  was  within  the  scope  of 
the  servant's  employment.  Here  the  defendants'  servant  was  employed 
to  drive  his  omnibus,  and  if  the  wrongful  act  had  been  done  in  the 
course  of  that  employment  the  defendants  would  be  liable  ;  but  they  are 
not  if  the  act  was  done  by  tlie  servant  for  some  purpose  of  his  own. 
The  learned  Judge  made  it  an  essential  part  of  his  direction,  whether 
the  defendants'  driver  was  doing  that  which  he  believed  to  be  for  the 
interest  of  his  employer  ;  whereas  the  real  question  was  whether  the 
driver  thought  the  act  necessary  for  carrying  out  his  masters'  orders. 
The  true  rule  is  laid  down  in  Croft  v.  Alison,  4  B.  &  Aid.  590  :  "  If  a 
servant  driving  a  carriage,  in  order  to  effect  some  purpose  of  his  own 
wantonl}'  strike  the  horses  of  another  person  and  produce  the  accident, 
the  master  will  not  be  lial)le.  But  if,  in  order  to  perform  his  master's 
orders,  he  strikes,  but  injudiciously  and  in  order  to  extricate  himself 
from  a  difficulty,  that  will  be  negligent  and  careless  conduct,  for  wliich 
the  master  will  be  liable,  being  an  act  done  in  pursuance  of  the  servant's 
employment."  [Williams,  J.  If  a  driver  in  a  moment  of  passion 
vindictively  strikes  a  horse  with  a  whip,  that  would  not  be  an  act  done 
in  the  course  of  his  employment ;  but  in  this  case  the  servant  was 
pursuing  the  purpose  for  which  he  was  employed,  viz.,  to  drive  the 
defendants'  omnibus.  Suppose  a  master  told  his  coachman  not  to 
drive  when  he  was  drunk,  but  he  nevertheless  did  so,  would  not  the 
master  be  responsible?]  Here  the  defendants'  driver  recklessly  and 
pnrposeh'  obstructed  the  plaintiff's  omnibus.  That  was  not  an  act 
within  the  scope  of  his  employment,  and  was  contrary  to  the  orders 
given  to  him  by  his  master.  If  the  action  had  been  against  the 
servant,  it  must  have  been  in  trespass,  not  case.  [Blackburn,  J. 
If  the  defendants'  driver  did  the  act  to  effect  some  purpose  of  his  own, 
the  case  would  fall  within  the  latter  part  of  the  direction.]  The  doc- 
trine laid  down  in  Croft  v.  Alison  was  recognized  and  adopted  in 
Seymour  v.  Greenwood,  7  H.  &  N.  355.  [Ckomptox,  J.  Was  not 
the  driver  carrying  out  his  masters'  purposes  in  attempting  to  get 
before  the  other  omnibus  and  pick  up  passengers?]  He  states  that  he 
drove  across  the  plaintiff's  omnibus  to  prevent  it  from  passing  him, 
and  to  serve  the  plaintiff's  driver  as  the  plaintiff's  driver  had  served 
him.  [WiGHTMAN,  J.  Would  the  master  have  been  responsible  if 
the  servant  had  thought  it  for  his  master's  interest  to  drive  against  the 
other  omnibus  and  overturn  it?]  Lyons  v.  Martin,  8  A.  &  E.  512, 
decided  that  a  master  is  answerable  in  trespass  for  damage  occasioned 
by  his  servant's  negligence  in  doing  a  lawful  act  in  the  course  of  his 


174  LI.MPUS   V.   LONDON    GENERAL    OMNIBUS   CO.  [CHAP.  IL 

service  ;  but  not  so  if  the  act  is  in  itself  unlawful,  and  is  not  proved  to 
have  been  authorized  b}'  the  master.  Here  the  servant  wilfully  did  an 
act  which  he  knew  he  had  no  right  to  do,  and  which  he  was  instructed 
by  his  master  not  to  do ;  and  it  can  make  no  difference  that  he  believed 
it  to  be  for  the  benefit  of  his  master,  since  it  was  not  within  the  scope 
of  his  employment. 

Ziush,  for  the  defendant  in  error  (the  plaintiff  below).  The  direc- 
lion  was  right.  The  true  test  is  whether  the  servant,  in  doing  the 
particular  act,  ceased  to  be  the  agent  of  his  master,  and  did  it  solel}'  for 
his  own  purposes.  If  the  defendants'  driver  had  wilfully  driven  against 
the  other  omnibus  and  overturned  it,  the  jury  could  not  have  found  that 
he  did  it  in  the  course  of  his  employment  or  for  the  benefit,  or  supposed 
benefit,  of  his  master.  The  object  of  the  defendants  was  to  get  as 
much  traffic  as  the}'  could  on  the  road,  and  their  driver,  in  doing  the 
wrongful  act,  was  attempting  to  carr}'  out  that  object.  [Cromptox,  J. 
It  was  merely  an  act  of  wrongful  driving.]  Suppose  the  defendants 
had  told  their  driver  not  to  drive  faster  than  seven  miles  an  hour,  but 
he  did  so,  would  not  the  defendants  be  liable  for  damage  resulting  from 
it?  The  defendants'  driver  drove  across  the  other  omnibus,  not  for  an}' 
purpose  of  his  own,  but  believing  that  it  was  for  the  interest  of  his 
masters  to  prevent  that  omnibus  from  passing  him.  [Williams,  J. 
Suppose  the  driver  of  an  omnibus  saw  a  passenger  waiting  at  a  distance, 
and,  in  order  to  reach  him  before  another  omnibus,  drove  at  full  speed 
and  thereb}'  ran  over  a  person,  would  not  the  master  be  liable?]  Tlie 
fair  meaning  of  the  direction  is  that,  if  the  defendants'  servant  did  the 
wrongful  act  in  order  to  effect  an}'  purpose  of  his  own,  they  are  not 
liable,  but,  if  the  act  was  done  in  the  course  of  the  employment  or  for 
the  benefit  of  the  defendants,  they  are  responsible.  That  is  directly 
within  the  principle  laid  down  in  Croft  v.  Alison,  4  B.  &  Aid.  590,  and 
Seymour  v.  Greenwood,  7  H.  &  N.  355.  The  argument  on  the  part  of 
the  defendants  would  limit  the  responsibility  of  a  master  to  acts  which 
are  strictly  within  the  authority  of  the  servant.  But  a  servant  has  a 
discretion  intrusted  to  him  by  his  master  as  to  the  pace  and  mode  of 
driving.  Lyons  v.  Martin,  8  A.  &  E.  512,  merely  decided  that  a 
master  is  not  liable  in  trespass  for  a  wilfully  unlawful  act  of  his  ser- 
vant unauthorized  by  him.  —  He  also  referred  to  Kyle  v.  Jeffres,  3 
Macq.  611. 

JfelUsh  replied.  Cur.  adv.  vult. 

The  learned  Judges  having  differed  in  opinion,  the  following  judg- 
ments were  now  delivered. 

WiGiiTMAN,  J.  It  appears  by  the  evidence  in  this  case  that  the 
defendants  were  the  proprietors  of  an  omnibus  plying  between  the 
Bank  and  Hounslow,  which  at  the  time  in  question  was  driven  by  a 
coachman  in  their  service  ;  that  whilst  upon  the  road,  in  the  course 
of  his  employment  to  drive  defendants'  omnibus  from  Piccadilly  to 
Kensington,  he  wilfully  and  on  purpose,  and  contrary  to  the  express 


SECT.  II.]  LIMPUS    V.    LONDON    GENEKAL   OMNIBUS   CO.  175 

orders  of  the  defendants,  wrongfully  endeavored  to  hinder  and  obstruct 
the  passage  along  the  road  of  another  omnibus  belonging  to  the  plain- 
tilt";  and  for  that  purpose,  he,  who  was  ahead  of  the  plaintiff's  omnibus 
80  or  100  yards,  slackened  his  pace,  until  the  plaintiff's  omnibus  came 
up  to  him  and  was  about  to  pass,  and  he  then  purposely  pulled  across 
the  road  in  order  to  prevent  and  obstruct  his  progress,  and  in  so  doing 
ran  against  one  of  the  plaintiff's  horses  with  his  (the  defendants') 
omnibus,  thereby  causing  considerable  damage.  The  reason  assigned 
by  the  defendants'  coachman  for  this  wrongful  proceeding  was  that  he 
pulled  across  the  plaintiff 's  coaciiman  to  keep  him  from  passing,  in 
order  to  serve  him  (the  plaintilf's  coachman)  as  he  had  served  him 
(the  defendants'  coachman). 

It  seems  clear  upon  the  evidence  that  this  was  wholly  a  wilful  and 
unjustiiiable  act  on  the  part  of  the  defendants'  coachman,  and  not  in 
the  lawful  prosecution  of  his  masters'  business. 

A  master  is  undoubtedly  responsible  for  an}'  damage  occasioned  b}' 
the  negligence  or  carelessness  of  his  servant  whilst  employed  upon  his 
master's  business.  In  the  present  case  it  was  no  part  of  his  employ- 
ment to  obstruct  or  hinder  tlie  passing  of  other  omnibuses  or  carriages, 
—  on  the  contrary  he  was  directed  not  to  do  so. 

The  case  appears  to  me  to  fall  within  the  principle  of  the  decision  in 
the  case  of  Croft  v.  Alison,  4  B.  &  Aid.  590,  cited  upon  the  argument. 
In  that  case  the  court  said  that  the  distinction  was  this:  ''That  if  a 
servant  driving  a  carriage,  in  order  to  effect  some  purpose  of  his  own 
wantonly  strikes  the  horse  of  another  person  and  thereby  jjroduccs  an 
accident,  the  master  is  not  liable.  But  if,  in  order  to  perform  his 
master's  orders,  he  strikes,  but  injudicioush'  and  in  order  to  extricate 
himself  from  a  difficultv,  that  will  be  negligent  and  careless  conduct  for 
which  the  master  will  be  liable,  being  an  act  done  in  pursuance  of  the 
servant's  employment." 

In  the  case  of  L3-ous  v.  Martin,  8  A.  &.  E.  515,  Mr.  Justice 
Patteson,  in  his  judgment,  says,  "  Brucker  v.  Fromont,  6  T.  R.  659, 
and  other  cases,  where  the  master  has  been  held  liable  for  the  conse- 
quences of  a  lawful  act  done  negligently  by  his  servant,  do  not  appl}-. 
Here  the  act  was  utterly  unlawful.  A  master  is  liable  where  his  servant 
causes  injury  by  doing  a  lawful  act  negligently,  but  not  where  he  wilfully 
does  an  illegal  one,"  There  are  other  cases,  some  of  which  were  cited 
upon  the  argument,  to  the  same  effect.  In  the  present  case  the  defend- 
ants' coachman  wilfully  did  an  illegal  act  contrary  to  his  masters'  orders, 
and  quite  be3-ond  the  scope  of  his  employment.  In  this  view  of  the  case, 
it  appears  to  me  that,  if  the  evidence  of  the  defendants'  coachman  was 
believed,  as  well  as  that  of  the  other  witnesses  in  the  case,  the  verdict 
ought  to  have  been  for  the  defendants.  The  question,  however,  before 
us  is  whether  the  direction  of  the  learned  Judge  to  the  jury,  as  it 
appears  upon  the  bill  of  exceptions,  was  right  in  point  of  law  upon  the 
case  as  it  appeared  in  evidence.  I  entertain  the  highest  and  most 
sincere  respect  for   the   opinion  of  my  brother  Martin,  but  it  does 


176  LIMPUS   V.    LONDON    GENERAL   OMNIBUS   CO.  [CHAP.  IL 

appear  to  me  that  the  mode  in  which  the  questions  were  put  to  the  jury 
was  such  as  might  mislead  them,  and  induce  them  to  find  a  verdict 
which  I  cannot  but  think  was  wrong. 

He  appears  to  have  told  them  ''that  if  the  act  of  the  defendants' 
driver  in  driving  as  he  did  across  the  road  to  obstruct  the  plaintiff's 
omnibus,  although  a  reckless  driving  on  his  part,  was  nevertheless  an 
act  (lone  by  him  in  the  course  of  his  service^  and  to  do  that  which  he 
thought  best  to  suit  the  interests  of  his  employers  and  to  interfere  with 
(he  trade  and  business  of  the  other  omnibus,  the  defendants  were 
responsible ;  and  that  the  liability  of  the  master  depended  upon  the 
acts  and  conduct  of  the  servant  in  the  course  of  the  service  and 
employment,  and  that  the  instructions  given  to  the  coachman  not  to 
obstruct  another  omnibus  or  hinder  or  annoy  the  driver  in  his  business 
were  immaterial." 

It  certainly  appears  to  me  that  the  wilfully  or  wrongfully  attempting 
to  obstruct  the  progress  of  another  omnibus  contrary  to  the  express 
directions  of  the  defendants,  though  done  by  their  coachman  whilst 
employed  in  the  service  of  the  defendants,  cannot  be  considered  an  act 
done  b}'  him  in  the  course  of  his  service.  It  was  quite  beside  the 
course  of  his  service  and  what  he  was  employed  to  do ;  and  I  cannot 
consider  the  express  prohibition  to  the  coachman  to  do  what  he  did  as 
immaterial  in  considei-ing  what  was  the  course  of  his  service  in  that 
respect.  This  was  not  a  case  of  reckless  or  careless  driving,  but  of 
wilfully  and  wrongfully  attempting  to  obstruct  the  passage  of  another 
omnibus,  and  in  so  doing  running  against  one  of  the  horses.  This 
cannot,  I  think,  under  the  circumstances,  be  considered  as  an  act  done 
in  the  course  of  his  service,  even  though  the  coachman  might  think  that 
it  was  for  his  masters'  interest  bj-  such  wrongful  means  to  obstruct  the 
business  of  the  other  omnibus.  The  defendants'  coachman  was  not 
employed  to  obstruct  or  hinder  the  plaintiff's  omnibus,  nor  was  it  in 
the  course  of  his  service,  in  the  proper  sense,  to  do  so.  Upon  the 
evidence  it  was  entirelj'  his  own  wrongful  and  wilful  act,  for  which  I 
think,  according  to  the  distinction  taken  in  the  cases  to  which  I  have 
referred,  the  defendants  are  not  responsible.  The  jur}-,  upon  the 
direction  to  which  I  have  referred,  might  well  have  thought  that  if  the 
act  was  done  during  the  time  that  the  defendants'  coachman's  employ- 
ment was  to  drive  their  omnibus,  and  that  he  thought  it  for  their  benefit 
to  obstruct  the  other  omnibus,  the  defendants  would  be  liable.  This  I 
think  was  wrong  for  the  reasons  I  have  given  ;  and  I  am  therefore  of 
opinion  that  there  should  be  a  trial  de  novo. 

Williams,  J.,  said.  —  I  am  of  opinion  that  the  judgment  ought  to 
be  affirmed.  If  a  master  employs  a  servant  to  drive  and  manage  a 
carriage,  the  master  is  responsible  for  an}'  misconduct  of  the  servant  in 
driving  and  managing  it  which  must  be  considered  as  having  resulted 
from  the  performance  of  the  duty  intrusted  to  him,  and  especially  if  he 
was  acting  for  his  master's  benefit  and  not  for  any  purpose  of  his  own. 
I  think  that  the  summing  up  of  my  brother  Martin  was  substantially  in 


SECT.  II.]  LIMPUS   V.    LONDON    GENERAL    OMNIBUS    CO.  177 

accordance  with  that  doctrine,  and  therefore  there  is  no  foundation  for 
the  bill  of  exceptions. 

Crompton,  J.,  said.  —  I  must  confess  that  ray  mind  has  altered  in 
the  course  of  the  discussion.  At  first  I  was  inclined  to  the  opinion 
which  m}'  brother  Wightman  has  expressed,  but  my  present  impression 
is  in  favour  of  the  view  of  my  brother  Williams^  that  the  injury  resulted 
from  an  act  done  in  the  course  of  the  driving  and  management  of  the 
omnibus.  I  do  not  follow  ray  brother  Wightman  in  one  respect  (for 
which  however  he  has  the  authority  of  Patteson,  J.,  in  Lyons  v.  Martin, 
8  A.  &  E.  515,  as  to  its  being  necessary  that  the  act  done  by  the  ser- 
vant should  be  a  lawful  act,  for  later  cases  sliow  that  the  act  need 
not  be  lawful  in  order  to  fix  the  master  with  responsibility  ;  but  my 
doubt  has  been  whether  this  was  an  act  done  within  the  scope  of  the 
driver's  authorit}-,  in  other  words,  whether  he  was  acting  in  the  course 
of  the  driving  or  management  of  the  omnibus.  It  appears  by  the 
evidence  of  the  driver  that  he  was  driving  the  defendants'  omnibus  in 
an  improi)er  way,  for,  without  intending  to  touch  the  horses  of  the 
plaintiff's  omnibus,  he  drove  so  near  to  it,  for  the  purpose  of  keeping 
it  from  passing  him,  that  he  caused  the  accident.  It  is  not  necessary 
to  say  what  vvould  have  been  the  case  if  the  driver  had  used  the  omni- 
bus so  as  to  block  up  the  road  ;  as  it  is,  I  cannot  see  that  the  direction 
of  my  brother  3Iartin  was  necessaril3'  wrong.  If  the  matter  had  come 
before  us  on  a  motion  for  a  new  trial,  it  ma}'  be  that  I  should  have 
agreed  with  nn-  brother  Wightman,  for  the  question  might  have  been 
presented  in  such  a  wa}'  as  to  bring  it  more  clearlv  before  the  jury,  and 
it  is  possible  that  some  expressions  of  the  learned  Judge  may  have  led 
them  to  a  wrong  conclusion.  But  the  question  now  is,  whether  any  of 
the  exceptions  show  that  the  learned  Judge  was  wrong  in  point  of  law. 
Throughout  his  summing  up  he  left  it  to  the  jur^'  to  sa^-  whether  the 
injurv  resulted  from  an  act  done  bv  the  driver  in  the  course  of  the 
service  and  for  his  masters'  purposes.  That  is  the  true  criterion  ;  and 
I  cannot  see  anything  necessarilv  wrong  in  the  ruling  of  my  brother 
Martin.  Therefore,  though  with  considerable  doubt,  I  do  not  think 
that  we  ought  to  reverse  the  judgment  of  the  Court  below. 

WiLLEs,  J.,  said:  I  am  of  opinion  that  the  judgment  of  the  Court 
below  ought  to  be  affirmed.  The  direction  of  va\  brother  JIartin  was 
in  accordance  with  principle  and  sanctioned  bj'  authority.  It  is  well 
known  that  there  is  virtually  no  remed}'  against  the  driver  of  an  omni- 
bus, and  therefore  it  is  necessary  that,  for  injur}-  resulting  from  an  act 
done  by  him  in  the  course  of  his  master's  service,  the  master  should 
be  responsible  ;  for  there  ought  to  be  a  remed}-  against  some  person 
capable  of  paying  damages  to  those  injured  by  improper  driving.  This 
was  treated  b}-  ni}-  brother  Martin  as  a  case  of  improper  driving,  not  a 
case  where  the  servant  did  anything  inconsistent  with  the  discharge  of 
his  duty  to  his  master,  and  out  of  the  course  of  his  employment.  The 
defendants'  omnibus  was  driven  before  the  omnibus  of  the  plaintiff,  in 
order  to  obstruct  it.     It  may  be  said  that  it  was  no  part  of  the  duty  of 

12 


178  LIMPUS   V.   LONDON    GENERAL    OMNIBUS    CO.  [CHAP.  IL 

the  defendants'  servant  to  obstruct  the  plaintiff's  omnibus,  and  more- 
over the  servant  had  distinct  instructions  not  to  obstruct  an}'  omnibus 
whatever.  In  my  opinion  those  instructions  are  immaterial.  If  dis- 
obeyed, the  law  casts  upon  the  master  a  liabilit}'  for  the  act  of  his 
servant  in  the  course  of  his  employment ;  and  the  law  is  not  so  futile 
as  to  allow  a  master,  by  giving  secret  instructions  to  his  servant,  to 
discharge  himself  from  liabilitj'.  Therefore,  I  consider  it  immaterial 
that  the  defendants  directed  tlieir  servant  not  to  do  the  act.  Suppose 
a  master  told  his  servant  not  to  break  the  law,  would  that  exempt  the 
master  from  responsibility  for  an  unlawful  act  done  by  his  servant  in 
the  course  of  his  employment? 

But  there  is  another  construction  to  be  put  upon  the  act  of  the  servant 
in  driving  across  the  other  omnibus  ;  he  wanted  to  get  -l^efore  it.  Tliat 
was  an  act  done  in  the  course  of  his  employment.  He  was  employed 
not  onl}'  to  drive  the  omnibus,  which  alone  would  not  support  this 
summing  up,  but  also  to  get  as  much  money  as  he  could  for  his  master, 
and  to  do  it  in  rivahy  with  other  omnibuses  on  the  road.  The  act  of 
driving  as  he  did  is  not"  inconsistent  with  his  employment,  when  ex- 
plained by  his  desire  to  get  before  the  other  omnibus.  I  do  not  speak 
without  authority  when  I  treat  that  as  the  proper  test.  Take  the  ordi- 
nar}'  case  of  a  master  of  a  vessel,  who  it  must  be  assumed  is  instructed 
not  to  do  what  is  unlawful  but  what  is  lawful,  if  he  has  distinct  instruc- 
tions not  to  sell  a  cargo  under  any  circumstances,  but  he  does  so  under 
circumstances  consistent  with  his  duty  to  his  master,  the  master  is 
liable  in  damages  to  the  person  whose  goods  are  sold. 

It  appears  to  me  that  the  summing  up  is  in  accordance  with  the 
principle  that  a  master  is  liable  for  acts  done  by  his  servant  in  the 
course  of  his  employment.  It  is  also  consistent  with  authority.  I  need 
onlj'  refer  to  the  authority  of  Lord  Holt  in  Tuberville  v.  Stampes,  1  Ld. 
Rayra.  264,  and  of  Lord  Wensleydale  in  Huzzey  v.  Field,  2  C.  M.  & 
R.  432.  It  is  part  of  the  history  of  the  law  that  the  judgment  in  Huzzey 
V.  Field,  although  delivered  b}'  Lord  Abinger,  was  prepared  b}'  Lord 
Wensleydale.  That  learned  person  there  laid  down  that  the  proper 
question  is  whether  the  servant  was  acting  at  the  time  in  the  course  of 
his  master's  service,  and  for  his  master's  benefit ;  if  so,  his  act  was  that 
of  his  master,  although  no  express  command  or  privity  of  his  master 
was  proved.  It  seems  to  me  that  in  so  laying  down  the  law  he  was 
strictly  accurate  ;  and  I  feel  bound  to  say  that  it  is  for  the  interest  of 
every  person  (for  all  are  liable  to  be  injured  by  servants),  that  he 
should  not  be  without  remedy  b}-  the  law  being  loosely  administered. 
I  entertain  no  doubt  that  the  direction  was  correct,  and  that  the  judg- 
ment ought  to  be  affirmed. 

Byles,  J.,  said.  —  I  am  also  of  opinion  that  the  direction  of  my 
brother  JIartin  was  correct.  He  used  the  words  "  in  the  course  of  his 
sen'ice  and  employment,"  which,  as  my  brother  WiUes  has  pointed  out, 
are  justified  by  the  decisions.  The  direction  amounts  to  this,  that  if  a 
servant  acts  in  the  prosecution  of  his  master's  business  for  the  benefit 


SECT.  II.]  LIMPUS    V.    LONDON    GENERAL    OMNIBUS    CO.  179 

of  his  master,  and  not  for  the  benefit  of  himself,  the  master  is  liable, 
although  the  act  may  in  one  sense  be  wilful  on  the  part  of  the  servant. 

It  is  said  that  what  was  done  was  contrary  to  the  master's  instruc- 
tions ;  but  that  might  be  said  in  ninety-nine  out  of  a  hundred  cases  in 
which  actions  are  brought  for  reckless  driving.  It  is  also  said  that  the 
act  was  illegal.  So,  in  almost  every  action  for  negligent  driving,  an 
illegal  act  is  iujputed  to  the  servant.  If  we  were  to  hold  this  direction 
wrong,  in  almost  every  case  a  driver  would  come  forward  and  exaggerate 
his  own  misconduct,  so  that  the  master  would  be  absolved.  Looking 
at  what  is  a  reasonal)le  direction,  as  well  as  at  what  has  been  already 
decided,  I  think  this  summing  up  perfectly  correct. 

Blackburn,  J.,  said.  —  I  am  also  of  opinion  that  the  direction  of  the 
learned  Judge  was  sufficiently  correct  to  afford  the  jury  a  guide  in  the 
particular  case,  which  is  all  that  is  required.  It  is  admitted  that  a 
master  is  responsible  for  the  illegal  act  of  his  servant,  even  if  wilful, 
provided  it  was  within  the  scope  of  the  servant's  employment,  and  in 
the  execution  of  the  service  for  which  he  was  engaged.  That  the 
learned  Judge  told  the  jury,  and  perfectly  accurately,  but  that  alone 
would  not  be  enough  to  guide  them  in  coming  to  a  correct  conclusion. 
It  was  necessary  that  the  jury  should  understand  the  principles  which 
they  must  apply  in  order  to  ascertain  whether  the  act  was  done  in  the 
course  of  the  servant's  employment.  It  is  upon  that  part  of  the  sum- 
ming up  that  INIr.  3Iellish  has  mainly  pointed  his  argument,  saying  that 
it  gave  the  jury  a  wrong  guide. 

Now,  we  nnist  look  at  what  the  particular  employment  was,  in  order 
to  see  what  was  understood  by  the  jury.  The  defendants'  servant  was 
the  driver  of  an  omnibus,  and  as  such  it  was  his  duty,  not  only  to  con- 
duct it  from  one  terminus  to  another,  but  to  use  it  for  the  purpose  of 
picking  up  traffic  during  the  course  of  the  journe}'.  He  drove  across 
another  omnibus  under  circumstances  from  which  the  ]\\vy  might  have 
thought  that  it  was  done  for  the  purpose  of  wreaking  his  spite  against 
the  driver  of  that  omnibus.  The  learned  Judge,  having  to  tell  the  jury 
what  was  the  test  by  which  the}'  were  to  determine  whether  the  act  was 
done  in  the  course  of  the  service  or  not,  used  language  in  which  he  tells 
them,  perfectly  rightly,  that  if  the  act  was  done  in  the  course  of  the 
service  the  defendants  were  responsible  ;  and  he  goes  on  to  sa}',  "  that 
if  the  jurv  believed  that  the  real  truth  of  the  matter  was  that  the 
defendants'  driver,  being  dissatisfied  and  irritated  with  the  plaintifl^'s 
driver,  whether  justly  or  unjustly,  by  reason  of  what  had  occurred,  and 
in  that  state  of  mind  acted  recklessh',  wantonly,  and  impro^Derly,  but  in 
the  course  of  his  service  and  employment,  and  in  doing  that  which  he 
believed  to  be  for  the  interest  of  the  defendants,  then  the  defendants 
were  responsible  for  the  act  of  their  servant."  No  doubt  what  Mr. 
3IelUsh  said  is  correct :  it  is  not  universally  true  that  ever}'  act  done 
for  the  interest  of  the  master  is  done  in  the  course  of  the  employment. 
A  footman  might  think  it  for  the  interest  of  his  master  to  drive  the 
coach,  but  no  one  could  say  that  it  was  within  the  scope  of  the  foot 


180  MURPHEY   V.    CARALLI.  [CHAP,  II. 

man's  employment,  and  that  the  master  would  be  liable  for  damage 
resulting  from  the  wilful  act  of  the  footman  in  taking  charge  of  the 
horses.  But,  in  this  case,  I  think  the  direction  given  to  the  jury  was  a 
sufficient  guide  to  enable  them  to  say  whether  the  particular  act  was 
done  in  the  course  of  the  emplo3'ment.  The  learned  Judge  goes  on  to 
say  that  the  instructions  given  to  the  defendants'  servant  were  imma- 
terial if  he  did  not  pursue  them  (upon  which  all  are  agreed)  ;  and  at 
the  end  of  his  direction  he  points  out  that,  if  the  jury  were  of  opinion 
"  that  the  true  character  of  the  act  of  the  defendants'  servant  was  that 
it  was  an  act  of  his  own  and  in  order  to  effect  a  purpose  of  his  own, 
the  defendants  were  not  responsible."  That  meets  the  case  which  I 
have  alread}'  alluded  to.  If  the  jury  should  come  to  the  conclusion 
that  he  did  the  act,  not  to  further  his  masters'  interest  or  in  the  course 
of  his  employment,  but  from  private  spite,  and  with  the  object  of  in- 
juring his  enem}',  the  defendants  were  not  responsible.  That  removes 
all  objection,  and  meets  the  suggestion  that  the  jurj'  may  have  been 
misled  by  the  previous  part  of  the  summing  up. 

Under  these  circumstances,  I  think  that  the  direction  given  by  the 
learned  Judge  was  sufficiently  accurate  to  guide  the  jury  in  coming  to 
a  right  conclusion,  and  that  there  ought  not  to  be  a  trial  de  novo. 

Judgment  affirmed. 


MURPHEY   y.   CARALLI. 
Exchequer.     1864. 

[3  //.  ^  C.  462.]  1 

The  first  count  of  the  declaration  (which  was  the  count  relied  on) 
stated  that  the  defendant  so  carelessly,  negligently,  wrongfuU}',  and 
improperly  placed  a  pile  of  cotton  bales  in  a  certain  cotton  shed  or 
warehouse,  that  by  and  through  the  mere  carelessness,  negligence, 
wrongful  and  improper  conduct  of  the  defendant  in  that  behalf  the 
same  fell  upon  the  plaintiff,  who  was  then  lawfulh'  engaged  and  work- 
ing in  the  said  cotton  shed  or  warehouse,  and  inflicted  on  him  bodily 
injuries,  and  the  plaintiff  thereby  became  ill,  «S:c. 

Plea,  —  Not  guilt}'.     Issue  thereon. 

At  the  trial,  before  the  Assessor  of  the  Court  of  Passage  for  the  bor- 
ough of  Liverpool,  the  following  facts  were  proved  on  behalf  of  the 
plaintiff:  The  defendant  was  a  Liverpool  cotton  merchant,  and  he 
and  another  firm  of  cotton  merchants  (Messrs.  Dixon  &  Co.)  had  re- 
spectively caused  some  bales  of  cotton  to  be  stored  in  the  same  ware- 
house. The  plaintiff  having  been  employed  by  Messrs.  Dixon  &  Co.  to 
recanvass  their  bales,  went  to  the  warehouse,  and  while  engaged  in  re- 
canvassing  Messrs.  Dixon  &  Co.'s  bales  received  the  injuries  for  which 

1  The  arguments  of  counsel  are  taken  from  the  report  in  34  L.  J.  n.  s.  Ex.  14.  —  Ed 


SECT.  II.]  MUliPHEY    V.    CARA.LLI.  181 

this  action  was  brought  IVom  the  fall  of  one  of  the  defendant's  bales. 
The  defendant's  bales  liad  been  stored  some  days  before  the  accident  by 
cotton  porters  in  the  defendant's  employ,  under  the  superintendence  of 
one  Jones,  the  warehouse  keeper  employed  by  the  owner  of  the  ware- 
house. From  the  evidence  of  Jones  it  appeared  that  it  was  his  duty  to 
see  the  bales  piled  properly,  and  that  those  who  piled  the  bales  were 
bound  to  obe^'  his  directions.  He  further  stated  that  when  the  pile  was 
not  made  properly  at  first,  he  was  in  the  habit  of  pulling  it  down  and 
ordering  it  to  be  replied.  Evidence  was  also  given  that,  at  the  time 
when  the  defendant's  bales  were  piled,  they  were  not  properly  secured 
so  as  to  prevent  them  from  falling.  It  was  not  disputed  that  the  cotton 
porters  were  workmen  who  understood  the  mode  in  which  bales  ought 
to  be  piled.  The  charges  for  warehouse  room  were  at  a  given  price  per 
bale,  no  exclusive  space  in  the  warehouse  being  allotted  to  the  different 
merchants. 

The  learned  Assessor,  being  of  opinion  that  on  this  evidence  it 
appeared  that  the  act  which  caused  the  mischief  was  the  act  of  the 
warehouse  keeper,  directed  a  nonsuit  to  be  entered. 

Littler,  on  a  former  day  in  this  Term,  obtained  a  rule  nisi  for  a  new 
trial,  on  the  ground  that  there  was  evidence  for  the  jury  of  negligence 
in  the  defendant's  servants,  and  that  the  employment  of  a  warehouse- 
man under  such  circumstances  did  not  protect  the  defendant ;  against 
which, 

C.  -Russell  appeared  to  show  cause,  contending  that,  as  the  damage 
was  done  by  a  person  not  under  the  defendant's  control,  and  the  defend- 
ant was  not  the  owner  of  the  warehouse  or  any  part  of  it,  but  only  of 
some  bales  which  were  stowed  there,  the  nonsuit  was  right. 

Littler,  being  called  on  by  the  Court  to  support  his  rule,  cited  the 
case  of  The  Mobile,  Swa.  Adm.  Rep.  127,  where  it  was  held  tliat  the 
owners  of  a  vessel  in  charge  of  a  licensed  pilot  are  not  exempted  by  the 
Merchant  Shipping  Act  from  liability  for  damage  caused  by  the  vessel, 
unless  the  pilot  was  exclusively  to  blame,  and  there  was  no  blame 
attributable  to  the  master  and  crew  ;  and  contended  that  the  porters 
who  packed  the  cotton  were  the  defendant's  servants,  and  that  there 
was  negligence  on  their  part  as  well  as  on  that  of  the  warehouse  keeper. 
[Bramwell,  B.  Is  the  master  responsible  for  the  negligence  of  his 
servants  when  they  act  under  another  person  who  is  not  his  servant, 
but  whom  they  are  bound  to  obey?]  Yes.  The  plaintiff  here  never 
touched  the  bales  that  fell,  and  there  was  no  contributory  negligence 
on  his  part.  Had  they  fallen  while  being  piled,  the  defendant  would 
clearly  have  been  liable.  The  warehouse  keeper  was  for  this  particular 
service  the  servant  of  the  owner  of  the  cotton  ;  and  if  the  bales  had 
fallen  on  one  of  the  defendant's  men  while  engaged  in  piling,  it  would 
have  been  said  that  he  and  the  warehouse  keeper  were  fellow-servants. 
It  was  no  part  of  the  warehouse  keeper's  duty  to  direct  where  the 
passers-by  were  to  go.  He  had  only  to  direct  where  the  bales  were 
to  be   stowed.      He  cited  Martin  v.  Temperley,   4   Q.   B.    298,  and 


182  MURPHEY   V.   CARALLI,  [CHAP.  II. 

Raiulleson  v.  Murray,  8  Ad.  &  E.  109,  in  which  lattei  case  a  ware- 
hoiiscuum  who  had  engaged  a  master-porter  to  move  a  barrel  was 
held  liable  for  injury  arising  from  the  negligence  of  the  men  employed 
and  the  falling  of  the  tackle  used  by  the  master-porter. 

Pollock,  C.  B.  I  am  of  opinion  that  the  nonsuit  in  this  case  was 
correct,  and  that  this  rule  should  be  discharged.  Jones  was  eniployed 
as  warehouse  keeper  by  the  owner  of  the  warehouse,  and  as  such  had 
control  over  the  warehouse  itself  and  also  over  the  entrance  to  it. 
"When  bales  were  stowed  the3'  were  stowed  under  Jones's  directions, 
and  by  his  orders  restowed  if  not  stowed  properly  at  first.  The  bales 
which  caused  the  mischief  having  been  stowed  under  Jones's  directions, 
I  think  that  he  and  his  master  are  alone  responsible.  The  case  of  Ran- 
dleson  v.  Murray,  8  A.  &  E.  109,  seems  at  variance  with  the  current  of 
authority,  but  it  certainly  establishes  no  principle  for  constraining  us  to 
hold  this  defendant  liable. 

Bramwell,  B.  I  also  think  the  nonsuit  right.  I  assent,  indeed,  to 
Mr.  Littler  s  argument,  that  the  men  employed  by  the  defendant,  while 
engaged  in  piling  the  bales,  were  his  servants  so  as  to  render  him  re- 
sponsible for  their  acts.  And  if,  while  they  were  so  engaged,  there  had 
been  an}*  negligence  on  their  part  with  reference  to  an}'  person  lawfully 
passing  by,  I  think  the  defendant  would  be  liable.  The  question  may, 
therefore,  be  treated  as  if  the  defendant  had  piled  the  bales  himself. 
But  suppose  he  had  piled  the  bales,  would  he  be  liable?  I  think  not. 
For  in  that  alone  there  would  have  been  nothing  dangerous  without  the 
subsequent  act  of  the  warehouse  keeper  in  permitting  persons  to  approach 
the  bales.  Suppose  the  defendant  had  been  present,  and  had  pointed 
out  to  the  warehouse  keeper  that  tlie  mode  in  which  the  bales  were  piled 
was  dangerous.  The  warehouse  keeper  might  surely  have  replied  that 
that  was  his  business,  and  that  he  would  take  the  necessary  steps  to 
prevent  any  one  coming  near  the  bales.  If  from  his  subsequent  omis- 
sion to  do  so  any  mischief  had  occurred,  the  defendant  would  not  be 
responsible  for  that  mischief.  Take  this  case.  A.  delivers  at  B.'s 
house  goods  which,  from  their  nature,  cannot  at  once  be  taken  in.  B. 
says:  "  Put  them  down  in  the  highway,  I  will  remove  them  directly, 
and  will  see  that  in  the  mean  time  no  one  runs  against  them."  A.  com- 
plies. The  goods  remain  out  all  night,  there  is  no  light,  and  some  one 
is  injured.  Who  is  responsible?  B.,  the  owner  of  the  house,  and  not 
A.,  for  though  A.'s  act  be  wilful  it  would  not  be  dangerous  without  B.'s 
subsequent  negligence.  So  here  the  defendant  is  not  responsible  for 
an  act  which  would  have  produced  no  mischief  without  the  warehouse 
keeper's  subsequent  negligence.  If,  indeed,  the  negligence  were  of  a 
covert  kind,  so  as  to  be  less  obvious  to  the  warehouse  keeper  than  to 
the  men  engaged  in  piling  the  bales,  that  might  be  a  different  case. 
For  the  warehouse  keeper  might  then  have  no  notice  of  the  danger,  and 
so  the  mischief  might  occur  without  an}*  subsequent  wrongful  act  on  his 
part.  But  here  the  danger  was  at  least  as  patent  to  the  warehouse 
keeper  as  to  the  men ;  and  the  men  were  acting  under  his  control,  and 


SECT.  II.]        CHAPMAN   V.    NEW    YORK   CENTRAL    RAILROAD    CO  183 

the  act  in  itself  would  not  have  caused  the  mischief.     The  warehouse 
keeper  is  liable,  if  any  one. 

Channell,  B.  I  agree  that  this  rule  should  be  discharged  ;  and  the 
ground  of  my  opinion  is  that  the  act,  of  which  the  plaintiff  complains, 
must  be  taken  to  have  been  done  under  the  direction  of  the  warehouse 
keeper.  No  personal  negligence  is  imputed  to  the  defendant ;  and,  if 
he  be  liable  at  all,  it  must  be  on  the  ground  that  the  act  complained  of 
was  done  by  his  servants.  Now,  I  agree  with  my  Lord  as  to  the 
extent  of  the  wareh'ouse  keeper's  duties ;  and,  indeed,  that  he  had  a 
right  to  control  the  mode  in  which  the  bales  were  packed  is  not  dis- 
puted. We  mu.st  presume  he  was  attentive  to  his  duties,  and  that  what 
was  done  was  with  his  approval.  Consequently  it  must  be  taken  to 
have  been  done  under  his  direction.  I  think,  therefore,  that  although, 
for  certain  purposes,  the  cotton  porters  were  the  defendant's  servants, 
and  although  their  duties  did  not  terminate  on  depositing  the  bales  in 
the  warehouse  but  continued  in  the  packing,  yet  in  that  proceeding,  and 
in  the  negligence  which  then  took  place,  they  were  not  acting  as  ser- 
vants of  the  defendant,  but  as  the  servants  of  the  warehouse  keeper  and 
the  owner  of  the  warehouse. 

PiGOTT,  B.  I  agree,  upon  the  grounds  stated  by  m}'  brother 
Chminell.  If  the  warehouse  keeper,  instead  of  controlling  the  mode 
in  which  the  bales  were  packed,  had  let  a  certain  space  in  the  ware- 
house to  the  defendant,  that  would  be  a  different  case.  There  would 
then  be  a  duty  in  the  person  sent  to  deposit  the  goods  to  deposit  them 
carefully,  and  if  he  fiiiled  in  that  duty,  the  defendant  who  had  appointed 
him  might  reasonably  be  held  responsible.  But  where  the  person  sent 
with  the  goods  stows  them  under  the  control  of  a  warehouse  keeper, 
and  is  allowed  to  exercise  no  discretion  as  to  the  mode  of  stowage,  the 
sender  is  not  responsible,  for  he  is  guilty  of  no  neglect  of  duty. 

Hide  discharged. 


CHAPMAN,  Respondent,  v.  NEW  YORK  CENTRAL  RAIL- 
ROAD  COMPANY,  Appellant. 

Court  of  Appeals  of  New  York.     1865. 

[33  N.  Y.  369.] 

Campbell,  J.  The  plaintiff  brought  this  action  to  recover  damages 
caused  b}-  the  alleged  negligence  of  the  defendant  in  leaving  down  bars 
in  the  fence  on  the  side  of  their  railroad  track,  wherebj-  the  horses  of 
the  plaintiff  in  the  night  time  escaped  from  his  adjoining  field  on  such 
track,  and  were  struck  and  killed  b}'  a  passing  engine  of  the  defendant. 
One  Andrew  Ryan,  who  was  then  and  had  been  for  some  time  in  the 
employment  of  the  defendant  as  a  da}'  laborer,  receiving  his  pay 
monthly-,  but  at  a  fixed  rate  for  each  day's  labor,  on  the  night  of  the 


184  HOWE    V.    NEWMARCH.  [CHAP.  H. 

accident  took  down  the  bars  for  the  purpose  of  passing  with  a  team, 
being  engaged  at  the  time  in  a  business  which  concerned  himself,  and 
in  which  the  defendant  had  no  interest  vvliatever.  The  bars  were  left 
down  by  K\an,  and  through  the  opening  the  horses  passed  on  to  the 
track  and  were  killed.  The  referee,  before  whom  the  cause  was  tried, 
found  that  while  Ryan  was  thus  in  the  emplo}-  of  the  defendant  as  a 
day  laborer,  it  was  understood  in  virtue  of  that  employment,  that  he 
might  be  called  upon  in  case  of  accident  to  perform  extra  labor,  receiv- 
ing compensation  therefor,  and  if,  at  any  time  after  his  day's  labor  was 
over  he  saw  anything  amiss,  he  was  required  to  give  necessary-  atten- 
tion to  it  without  being  specially  directed  so  to  do.  In  the  language  of 
Ryan,  who  was  examined  as  a  witness,  "  If  I  seen  anything  amiss  after 
that,  I  had  to  do  it."  The  referee  found  that  under  that  employment  it 
was  the  duty  of  Ryan  as  the  servant  of  the  company  to  replace  the 
bars,  and  that  his  negligence  was  that  of  the  company,  and  he  reported 
in  favor  of  the  plaintiff,  and  the  judgment  was  affirmed  in  the  seventh 
district. 

Jf  the  bars  had  been  taken  down  by  others,  and  Ryan,  occupying 
the  relation  he  did  to  the  compan}',  had  seen  them,  or  had  been  notified, 
there  can  be  no  doubt  but  it  would  have  been  his  duty  at  once  to  have 
put  them  up.  That  he  took  them  down  himself  can  make  no  difference. 
The  neglect  of  duty  was  in  leaving  them  down.  For  that  negligence, 
and  which  caused  the  loss  of  the  plaintiff's  horses,  I  think  the  company 
must  answer  in  damages.  That  Ryan  was  intoxicated  at  the  time  was 
the  misfortune  of  the  compan}-.  That  he  had  been  retained  in  his 
place  when  known  to  be  intemperate,  was  the  fault  of  his  immediate 
superior  officers.  But  I  am  unable  to  see  how  this  question  of  intoxi- 
cation in  any  way  affects  the  legal  rights  of  the  plaintiff,  who  seeks 
simply  to  recover  for  the  loss  of  his  property',  caused  by  the  neglect  of 
the  defendant's  servant.    The  judgment  should  be  affirmed. 

Judgment  affirmed. 


HOWE   V.  NEWMARCH. 
Supreme  Judicial  Court  op  Massachusetts.      1866. 

[12  Allen,  49-1 

Tort  to  recover  damages  sustained  b}'  reason  of  the  negligence  of 
the  defendant's  servant,  in  driving  against  the  plaintiff  in  Cambridge. 

At  the  trial  in  the  Superior  Court,  before  Vose,  J,,  it  appeared  that 
the  defendant  was  a  baker  and  employed  William  S.  Brown  to  drive 
his  wagon  and  deliver  bread  to  his  customers.  There  was  a  city  ordi- 
nance prohibiting  riding  or  driving  upon  any  sidewalk  in  Cambridge. 
The  plaintiff  introduced  evidence  tending  to  show  that  on  the  morning 
of  July  9th,  1857,  he  came  upon  a  sidewalk  in  Cambridge,  in  front  of  a 


SECT.  II.]  HOWE   V.   NEWMARCH.  185 

house  owned  bj'  him,  and  turning  to  walk  upon  it  he  saw  the  defend- 
ant's horse  and  wagon  upon  the  same  sidewalk,  in  front  of  another 
house  near  by,  and  facing  towards  him  ;  that  he  proceeded  on  the  side- 
walk till  he  got  witiiiu  some  twelve  feet  of  the  horse,  when  Brown 
came  out  from  tliat  house  prett}'  fast,  threw  his  basket  upon  the  wagon, 
and  jumped  to  get  on  the  seat,  and  the  horse  started,  and  the  plaintiff 
turned  round  to  escape,  when  the  horse  struck  him  and  he  was  thrown 
down  and  injured. 

The  defendant  introduced  evidence  tending  to  show  that,  on  the  day 
before  the  one  referred  to  above,  the  plaintiff  had  told  lirown  not  to 
drive  on  the  sidewalk  in  front  of  his  premises,  and  they  then  had  some 
dispute  together,  and,  on  the  morning  of  Juh'  9,  when  Brown  came 
out  from  the  house,  the  plaintiff  stood  leaning  against  the  fence,  and, 
as  soon  as  the  horse  started,  the  plaintiff  walked  across  the  sidewalk 
and  caught  him  by  the  bridle  and  pulled  him  in  towards  the  fence,  and 
Brown  jumped  off  and  told  the  plaintiff  to  let  go  of  the  horse,  which  he 
did,  and  Brown  got  in  and  started  again,  and  as  he  began  to  turn  the 
horse  into  the  street  the  plaintiff  took  hold  of  him  again,  and  Brown 
again  told  him  to  let  go,  and  the  plaintiff  did  not  let  go,  and  Brown, 
after  again  telling  the  plaintiff  to  let  go,  started  the  horse,  and  the 
plaintifT,  who  still  held  on  to  the  bridle,  was  thrown  down.  There  was 
no  evidence  that  the  defendant  knew  of  Brown's  habit  of  driving  on  the 
sidewalk,  or  had  ever  given  directions  where  he  should  drive. 

The  plaintiff  requested  the  court  to  instruct  the  jury  as  follows : 

"  1.  If  the  jur}'  are  satisfied  that  the  defendant's  servant,  with  his 
team,  met  the  plaintiff  on  the  sidewalk  adjoining  the  plaintiffs  prem- 
ises, and  neither  of  them  would  give  the  road,  and  the  defendant's 
servant  insisted  on  proceeding  on  the  sidewalk,  and  a  contest  ensued 
in  which  the  servant  urged  on  his  team,  by  means  of  which  the  plaintiff 
sustained  an  injurv,  a  verdict  should  be  rendered  for  the  plaintiff,  unless 
the  injur}'  resulted  from  want  of  due  care  on  the  part  of  the  plaintiff. 
2.  If  at  the  time  of  the  injury  the  defendant's  servant  was  engaged  in 
the  business  of  the  defendant,  and  within  the  scope  of  his  duty  as  such 
servant,  and  he  drove  the  horse  over  the  plaintiff  and  did  him  an  injury, 
the  defendant  is  responsible,  whether  the  act  was  done  wilfulh'  or  neg- 
ligentl}',  the  plaintiff  being  in  the  exercise  of  due  care  himself." 

The  judge  declined  to  give  the  instructions  prayed  for,  but  did 
instruct  the  jury  that,  "  if  they  were  satisfied  that  the  defendant's  ser- 
vant, with  his  team,  met  the  plaintiff  on  the  sidewalk  adjoining  the 
plaintiffs  premises,  and  neither  of  them  would  give  the  road,  and  the 
defendant's  servant  insisted  on  proceeding  on  the  sidewalk,  and  a  con- 
test ensued  in  which  the  defendant's  servant  carelessh"  or  negligently, 
but  without  the  purpose  or  intention  of  driving  against  the  plaintiff  or 
doing  him  an  injury,  urged  on  his  horse,  by  means  of  which  the  plain- 
tiff sustained  an  injury,  a  A-erdict  should  be  returned  for  the  plaintiff, 
unless  the  want  of  due  care  on  the  part  of  the  plaintiff  contributed  to 
the  injur}'.     And  if  Brown,  while  acting  as  the  sen-ant  of  the  defendant 


186  HOWE   V.    NEWMARCII.  [CHAP.  II. 

in  driving  from  house  to  house  and  deUvering  bread,  wilfully  and 
intentionally  drove  the  horse  upon  the  plaintiff  for  the  purpose  of  car- 
rying out  liis  wish  to  drive  unlawfully  upon  the  sidewalk  opposite  the 
plaintiffs  house,  notwithstanding  the  remonstrance  of  the  plaintiff,  and 
thereby  caused  the  injury  complained  of,  and  he  did  this  without  any 
previous  direction  or  authority  from  the  defendant,  then  the  defendant 
is  not  responsible  for  such  wrongful  act  of  his  servant." 

The  jury  returned  a  verdict  for  the  defendant,  and  the  plaintiff 
alleged  exceptions. 

C.  II.   Hudson  {A.   Cottrell  with  him),  for  the  plaintiff. 

S.  J.    Thomas^  for  the  defendant. 

Hoar,  J.  The  second  instruction  requested  by  the  plaintiff  at  the 
trial,  that  "if  at  the  time  of  the  injury  the  defendant's  servant  was 
engaged  in  the  business  of  the  defendant,  and  within  the  scope  of  his 
duty  as  such  servant,  and  he  drove  the  horse  over  the  plaintiff  and  did 
him  an  injury,  the  defendant  is  responsible,  whether  the  act  was  done 
wilfully  or  negligently,  the  plaintiff  being  in  the  exercise  of  due  care 
himself,"  seems  to  have  been  stated  with  substantial  accuracy.  It 
makes  the  test  of  the  defendant's  liability,  not  the  intention  of  the  ser- 
vant, but  the  fact  that  the  injurious  act  was  done  while  engaged  in  his 
master's  business,  and  within  the  scope  of  his  duty  as  a  servant.  If 
the  act  of  driving  over  the  plaintiff  was  done  wilfully,  still  it  may  also 
have  been  done  negligently  in  the  view  of  the  law  ;  that  is,  in  disregard 
of  the  plaintiff's  rights,  and  neglect  and  omission  of  the  precautions 
necessary-  to  his  safety-.  It  is  obvious  that  the  test  of  the  master's  lia- 
bility cannot  be  whether  the  servant  is  a  trespasser ;  for  he  who  uses 
force  upon  the  person  or  property  of  another  is  a  trespasser,  whether 
his  violence  be  accidental  or  intentional,  if  it  is  without  lawful  justifi- 
cation. But  if  the  servant  is  strictly  within  the  scope  of  his  employ- 
ment, doing  his  master's  work,  and,  for  the  purpose  of  doing  what  he  is 
employed  to  do,  does  it  in  a  manner  which  violates  the  rights  of  another, 
it  is  difficult  to  see  wh^-  the  master  should  be  exempted  from  responsi- 
bilit}',  because  the  servant  knows  th.at  his  act  will  be  injurious,  and 
intends  to  do  it.  If  the  consent  of  the  master  is  made  the  ground  of 
his  liabilit}',  the  master  is  no  more  consenting  to  the  thoughtless  negli- 
gence of  his  servant  than  to  his  wilful  negligence.  The  authorities  all 
agree  that,  where  an  action  is  brought  against  the  master  for  an  injury 
occasioned  by  the  servant's  negligence  in  his  service,  it  is  no  defence 
to  show  that  the  master  directed  the  servant  to  be  careful ;  or  even 
that  he  cautioned  him  against  the  particular  act  of  negligence  which 
produced  the  injur}-.     Southwick  v.  Estes,  7  Cush.  385. 

The  act  which  causes  the  injury  ma}'  be  precisely  the  same,  whether 
merely  careless  or  intentional,  and  the  authority  of  the  master  wanting 
as  much  in  one  case  as  in  the  other.  Thus,  if  a  servant  driving  his 
master's  carriage  becomes  entangled  in  a  crowd  of  other  carriages,  and 
is  impatient  to  drive  on,  and  there  is  not  room  to  pass  with  safety,  and 
reasonable  care  and  prudence  would  require  him  to  wait ;  but  he  per- 


SECT.  II.]  HOWE   V.    NEWMAKCH.  187 

sists  in  driving  on,  and  in  so  doing  strikes  another  carriage  ;  this  is 
negligence  for  which  the  master  is  responsible.  Is  the  master's  respon- 
sibility at  an  end  if  it  is  shown  that  the  servant  saw  that  he  should 
strike  the  other  carriage,  and  intended  to  extricate  himself  by  so  doing? 
He  is  in  his  master's  employment  in  the  one  case  as  in  the  other.  If 
his  master  has  directed  him  to  drive  carefully,  he  is  in  each  case  alike 
acting  without  his  master's  authority  or  approval.  His  purpose  in 
each  case  ma}'  be  to  do  his  master's  work  which  he  is  employed  to  do. 
In  the  former,  be  does  not  think  of  or  care  for  the  rights  of  the  other 
party,  and  so  is  neghgent.  In  the  latter,  he  perceives  and  understands 
the  riglits  of  the  otiier  party,  but  determines  to  disregard  tliem. 

It  is  not  easy  to  reconcile  the  numerous  cases  on  this  subject.  The 
leading  case  on  which  the  defendant  relies  is  M'Manus  v.  Crickett,  1 
East,  lOG.  That  case  merely  decided  that  trespass  vi  et  arrtiis  would 
not  lie  against  a  master  for  the  wilful  trespass  of  his  sei'vant,  which 
was  not  autliorized  or  consented  to  by  the  master,  either  dlrecth-  or  by 
implication  from  the  nature  or  subject  matter  of  his  employment.  The 
decision  rests  entirely  upon  the  distinction  between  trespass  and  tres- 
pass on  the  case.  Lord  Kenyon  says  that  "  when  a  servant  quits 
sight  of  the  object  for  which  he  is  employed,  and,  without  having  in 
view  his  master's  orders,  pursues  that  which  his  own  malice  suggests, 
he  no  longer  acts  in  pursuance  of  the  authoritv  given  him,  and,  accord- 
ing to  the  doctrine  of  Lord  Holt,  his  master  will  not  be  answerable  for 
such  act."  But  he  adds  that  "  this  doctrine  does  not  at  all  militate 
with  the  cases  in  which  a  master  has  been  holden  liable  for  the  mis- 
chief arising  from  the  negligence  or  unskilfulness  of  his  servant  wlio 
had  no  purpose  but  the  execution  of  his  master's  orders ;  "  but  that  the 
form  of  such  action  must  be  case  and  not  trespass.  There  is  nothing 
in  the  opinion  which  bears  upon  the  intermediate  case  of  a  servant  who 
does  not  "quit  sight  of  the  object  for  wliich  lie  is  employed,"  but  for 
the  purpose  of  executing  his  master's  orders,  and  in  the  course  of  his 
emplo3'ment  does  an  act  injurious  to  another,  or  in  disregard  of  his 
rights.  The  case  of  Savignac  r.  Roome,  6  T.  R.  125,  and  Ogle  v. 
Barnes,  8  T.  R.  188,  turned  upon  the  same  distinction  between  tres- 
pass and  case. 

M'Manus  v.  Crickett  has  been  recognized  as  an  authority  in  this 
Commonwealth  in  Foster  v.  Essex  Bank,  17  Mass.  .510;  which  was 
an  action  against  the  bank  for  the  amount  of  a  special  deposit  in  gold 
which  had  been  stolen  from  the  vault  by  the  cashier  or  chief  clerk. 
The  bank  was  held  not  liable  for  the  loss.  The  court  state  the  general 
rule  to  be,  "  that  to  make  the  master  liable  for  any  act  of  fraud  or 
negligence  done  bv  his  servant,  the  act  must  be  done  in  the  course  of 
his  employment ;  and  that  if  he  steps  out  of  it  to  do  a  wrong,  either 
fraudulenth'  or  felonious!}',  towards  another,  the  master  is  no  more 
answerable  than  any  stranger."  In  Lyons  v.  Martin,  8  Ad.  &  El.  512, 
the  master  had  employed  his  servant  to  distrain  horses  damage  feasant 
in  his  close ;  and  it  was  held  that  he  was  not  answerable  in  trespass 


188  HOWE   V.    NEWMARCH.  [CHAP.  IL 

for  the  act  of  his  servant  in  driving  the  plaintiffs  horse  from  the  high- 
way into  tlie  close  in  order  to  distrain  him,  as  not  being  an  act  done 
by  the  master's  authority,  or  in  the  course  of  the  servant's  employment. 
In  Richmond  Turnpike  Co.  r.  Vanderbilt,  1  Hill,  480,  it  was  held  that 
the  owner  of  a  steamboat  is  not  responsible  in  an  action  on  the  case, 
for  the  wilful  misconduct  of  the  master  in  running  her  against  and 
injuring  another  boat.  And  in  Wright  v.  Wilcox,  19  Wend.  843,  it 
was  decided  that  if  the  act  of  the  servant  was  wilful,  although  in  the 
performance  of  his  master's  business,  the  master  is  not  responsible  in 
an  action  on  the  case,  because  "  the  law  holds  such  wilful  act  a  depart- 
ure from  the  master's  business." 

This  distinction  has  not  been  approved  by  several  of  the  text  writers. 
It  is  questioned  b}'  Judge  Ileeve  in  his  treatise  on  the  Domestic  Rela- 
tions, 357,  358;  in  Redfield  on  Railway's,  384,  note;  and  is  stated 
with  some  qualifications  in  Smith  on  Master  &  Servant,  1 72  et  seq. 

In  Croft  V.  Alison,  4  B.  &  Aid.  590,  the  Court  of  King's  Bench  say 
that  "the  distinction  is  this:  if  a  servant  driving  a  carriage,  in  order 
to  effect  some  purpose  of  his  own,  wantonly  strike  the  horses  of  another 
person,  and  produce  the  accident,  the  master  will  not  be  liable.  But 
if,  in  order  to  perform  his  master's  orders,  he  strikes,  but  injudiciously, 
and  in  order  to  extricate  himself  from  a  difficult}',  that  will  be  negligent 
and  careless  conduct,  for  which  the  master  will  be  liable,  being  an  act 
done  in  pursuance  of  the  servant's  employment."  The  case  showed 
that  the  defendant's  servant  had  wilfully  struck  the  plaintiff's  horses, 
when  driving  his  master's  carriage,  in  order  to  extricate  himself  from 
an  entanglement  of  the  carriages  occasioned  bj*  his  own  fault,  and 
thereby  had  caused  an  injur}'  to  the  plaintiff's  carriage  ;  and  a  verdict 
for  tlie  plaintiff  was  supported.     The  action  was  case  for  negligence. 

In  Seymour  v.  Greenwood,  6  Hurlst.  &  Norm.  359,  Chief  Baron 
Pollock  asks  the  question,  "  Suppose  a  servant  driving  along  a  road, 
in  order  to  avoid  a  danger  intentional!}'  drove  against  the  carriage  of 
another,  would  not  the  master  be  responsible?"  And  in  Limpus  v. 
London  General  Omnibus  Co.,  1  Hurlst.  «fe  Colt.  526,  it  was  decided 
in  the  Exchequer  Chamber  that  the  master  is  responsible  if  the  servant 
is  in  the  course  of  doing  the  master's  work,  and  does  the  act  to  accom- 
plish it. 

Wherever  there  is  a  contract  between  the  master  and  another  person, 
the  master  is  responsible  for  the  acts  of  his  servant  in  executing  the 
contract,  although  the  act  is  fraudulent,  and  done  without  his  consent. 
So  far  the  authorities  are  uniform.  And  this  court  has  held  the  master 
answerable  as  a  trespasser,  where  the  servant  committed  a  trespass  in 
the  course  of  his  employment,  and  the  business  in  which  he  was  em- 
ployed implied  the  use  of  force  or  violence  to  the  persons  or  property 
of  others,  although  the  trespass  consisted  only  in  the  use  of  force 
excessive  in  degree.  Moore  v.  Fitchburg  Railroad,  4  Gray,  465  ; 
Hewett  V.  Swift,  3  Allen,  420. 

The  instructions  asked  b3^  the  plaintiff  at  the  trial  were  refused  ;  and 


SECT.  II.]  HOWE   V.    NEWMARCH.  189 

the  court  instructed  the  jury  that  if  the  defendant's  servant  carelessly 
or  negligently,  but  without  the  purpose  or  intention  of  driving  against 
the  plaintiff,  urged  on  his  horse,  and  so  injured  him,  the  defendant 
would  be  answerable;  but  that  if  the  servant,  "while  acting  as  the 
servant  of  the  defendant  in  driving  from  house  to  house  and  delivering 
bread,  wilfully  and  intentionally  drove  the  horse  ujjon  the  plaintiff  for 
the  purpose  of  carrying  out  his  wish  to  drive  unlawfully  upon  the  side- 
walk opposite  the  plaintiff's  house,  notwithstanding  the  remonstrance 
of  the  plaintiff,  and  thereby  caused  the  injury-  complained  of,  and  he 
did  this  without  any  previous  direction  or  authority  from  the  defendant, 
then  the  defendant  was  not  responsible." 

The  objection  to  the  latter  branch  of  the  instruction  is,  that  it  gives 
the  jury  no  guide  for  their  action  in  case  they  should  find  that  the  ser- 
vant was  within  the  scope  of  his  employment,  and  was  intending  to  do 
his  master's  work  ;  and  that  his  intention  to  drive  against  the  plaintiff 
was  only  as  a  means  of  doing  it.  We  think  that,  upon  the  facts 
reported,  the  jury  might  have  been  satisfied  that  the  servant's  driving 
on,  though  intentional,  was  not  merelj'  for  the  purpose  of  injuring  the 
plaintiff.  lie  was  already  upon  the  sidewalk,  and  may  have  wished  to 
go  on  for  the  purpose  of  continuing  his  journey,  and  delivering  bread 
to  his  master's  customers,  although  he  saw  that  in  so  doing  he  should 
drive  against  the  plaintiff,  who  was  resisting  his  progress.  lie  would 
not  then  have  been  acting  for  a  purpose  of  his  own,  losing  sight  of  the 
object  for  which  he  was  employed. 

With  the  views  we  have  taken  of  the  law,  we  think  the  instructions 
given  were  defective,  and  that  they  did  not  fully  supplv  the  rule  which 
the  case  required.  The  rule  may  be  stated  thus :  The  master  is  not 
responsible  as  a  trespasser,  unless  by  direct  or  implied  authority  to  the 
servant  he  consents  to  the  wrongful  act.  But  if  the  master  give  an 
order  to  a  servant  which  implies  the  use  of  force  and  violence  to  others, 
leaving  to  the  discretion  of  the  servant  to  decide  when  the  occasion 
arises  to  which  the  order  applies,  and  the  extent  and  kind  of  force  to 
be  used,  he  is  liable,  if  the  servant  in  executing*  the  order  makes  use 
of  force  in  a  manner  or  to  a  degree  which  is  unjustifiable.  And  in  an 
action  of  tort  in  the  nature  of  an  action  on  the  case,  the  master  is  not 
responsible  if  the  wa'ong  done  b}'  the  servant  is  done  without  his  author- 
ity, and  not  for  the  purpose  of  executing  his  orders  or  doing  his  work. 
So  that  if  the  servant,  wholly  for  a  purpose  of  his  own,  disregarding 
the  object  for  which  he  is  employed,  and  not  intending  b}-  his  act  to 
execute  it,  does  an  injury  to  another  not  within  the  scope  of  his 
employment,  the  master  is  not  liable.  But  if  the  act  be  done  in  the 
execution  of  the  authorit}'  given  him  b}'  his  master,  and  for  the  pur- 
pose of  performing  what  the  master  has  directed,  the  master  will  be 
responsible,  whether  the  wrong  done  be  occasioned  bj'  negligence,  or 
b}'  a  wanton  or  reckless  purpose  to  accomplish  the  master's  business  in 
an  unlawful  manner. 

Tt   is  not  certain  that  the  point  to  which  the  exceptions  apply  was 


190  WOOD   V.    COBB.  [chap.  II. 

essential  to  the  decision  of  the  case.  If  the  plaintiff's  evidence  were 
believed,  it  would  seem  to  be  a  case  of  negligence  for  which  the  jury 
were  instructed  that  the  master  would  be  responsible.  If  the  defend- 
ant's evidence  were  entitled  to  credit,  the  plaintiff  could  hardl}^  have 
recovered,  by  reason  of  the  want  of  ordinary  care  on  his  own  part. 
But  we  cannot  judicially  know  what  view  the  jur}-  ma}'  have  taken  of 
the  evidence  ;  and  the  ruling  of  the  court  appearing  to  be  defective, 
there  must  be  a  new  trial. 

Exceptions  sustained.^ 


WOOD   V.   COBB. 
Supreme  Judicial  Court  of  Massachusetts.     1866. 

[13  Allen,  58.] 

Tort  to  recover  damages  for  a  personal  injury,  received  in  conse- 
quence of  the  neglect  of  the  defendants'  servant,  in  driving  against  the 
plaintiff. 

At  the  trial  in  the  Superior  Court,  before  Morton,  J.,  there  was  evi- 
dence tending  to  show  that  while  the  plaintiff  was  walking  in  a  highway 
in  Worcester  a  wagon  was  driven  against  him  by  a  boy  named  Wheeler  ; 
that  Wheeler  was  employed  by  the  defendants,  Cobb  &  Atwood,  who 
were  dealers  in  fish,  and  the  wagon  had  just  left  their  place  of  business 
loaded  with  their  fish. 

Thomas  R.  Foster,  a  truckman,  testified  that  the  defendants  em- 
ployed him  to  deliver  all  their  parcels  of  fish  every  Friday  to  their 
customers,  for  the  sum  of  one  dollar ;  that  he  received  the  parcels  in 
baskets,  labelled  where  to  go ;  that  he  took  whatever  route  he  chose, 
and  suited  his  own  accommodation  ;  that  at  the  time  of  the  accident  he 
had  been  sick  several  weeks  and  confined  to  his  house;  that  he  thought 
he  told  Pierce,  his  boj-,  to  get  some  help  if  necessary' ;  and  that  on  the 
day  of  the  accident  he  told  Pierce  to  take  the  team  up  and  tell  the 
defendants  they  could  have  it  if  they  wanted  it. 

Pierce  testified  that  Foster  had  two  teams ;  that  on  the  day  of  the 
accident  "  Foster  told  me  to  ask  Mr.  Cobb  if  his  boy  could  drive  for 
me.  I  saw  Wheeler,  and  asked  him  if  he  could  drive  for  me.  He  said 
he  did  not  know,  must  ask  Mr.  Atwood.  Went  in  and  asked  Mr. 
Atwood  if  he  could  drive  for  me  that  morning.  He  said  he  might. 
He  took  the  light  team.  At  other  times  while  Foster  was  sick,  I  had 
help  elsewhere."  Pierce  and  Atwood  testified  to  substantially  the 
same  facts. 

The  judge  instructed  the  jury  that,  if  they  believed  the  evidence  of 

1  Ace. :  Wallace  v.  Navigation  Co.,  134  Mass.  95  (1883)  ;  Texas  &  P.  Ry.  Co  v 
Scoville,  62  Fed.  R.  730  (C.  C.  A.,  Fifth  Circuit,  1894).  —Ed. 


SECT.  II.]       I'OULTON    V.    LONDON'    AND    SOUTH-WESTERN    RY.    CO.       191 

these  witnesses  as  to  what  took  place  at  the  defendants'  shop,  the 
plaintiff  could  not  recover ;  and  tlie  jury  returned  a  verdict  for  the 
defendants.     The  [)lainti(r  alleged  exceptions. 

/-*.  J^.  Aldrich  <t'   //'.  ^1.   Willia/iis,  for  the  plaintiff. 

G.  F.  Hoar  &  A.  Uadmun,  for  the  defendants. 

BiGELOw,  C.  J.  There  was  no  error  in  tlie  instructions.  The  testi- 
mony  of  the  witnesses  introduced  b}-  the  defendants  would  warrant  no 
other  inference  than  tliat  the  person  who  was  in  charge  of  the  horse 
and  wagon  at  the  time  the  injury  was  done  to  the  plaintiff  was  not  in 
the  employment  or  service  of  the  defendants,  but  was  acting  as  the  ser- 
vant of  a  third  person,  who  exercised  an  independent  employment  in  no 
way  subject  to  the  command  or  control  of  the  defendants  as  to  the  mode 
in  which  it  should  be  carried  on.  It  is  too  well  settled  to  admit  of  debate 
that  under  such  circumstances  no  liability  for  the  acts  done  attached  to 
the  defendants.  Brackett  v.  Lubke,  4  Allen,  138  ;  Forsyth  v.  Hooper, 
11  Allen,  419,  421.  Exceptions  overruled. 


POULTON   V.   LONDON   AND   SOUTH-WESTERN    RAIL- 
WAY  CO 

Queen's  Bench.     1867. 
[L.  R.  2  Q.  D.  534.] 

Declaration,  that  the  defendants,  bv  their  servants,  assaulted  the 
plaintifT,  and  gave  him  into  the  custodN'  of  a  policeman,  and  caused 
him  to  be  imprisoned. 

Plea,  not  guilty. 

At  the  trial  before  Kelly,  C.  B.,  at  the  Hants  spring  assizes,  it 
appeared  in  evidence,  that  the  plaintilT,  having  the  care  of  a  horse, 
had  taken  it  b\'  the  defendants'  railway  to  an  agricultural  show  held 
at  Salisbury,  in  June,  1866.  Under  the  railway  arrangements  ad- 
vertised b}'  the  defendants,  horses  were  to  be  taken  to  Salisbury  at 
the  usual  rates;  "on  return  free,  if  remaining  unsold,  on  produc- 
tion of  certificate  to  that  effect."  After  the  show  the  plaintiff  pro- 
duced the  proper  certificate  to  the  defendants'  servants,  and  the  horse 
was  put  into  a  horse-box  without  anv  payment  or  booking,  and  the 
plaintiflT  having  taken  a  third  class  ticket  for  himself  travelled  by 
the  same  train.  On  his  arrival  at  his  destination,  Rorasey  Station, 
the  plaintiff  gave  up  his  ticket  and  the  certificate  to  a  porter,  and  was 
taking  the  horse  away  along  the  road  when  the  station  master  sent  after 
hira  and  demanded  6s.  \Ocl.  for  the  carriage  of  the  horse,  under  a 
mistaken  notion  that  the  horse  could  not  be  carried  free  b\'  that  train. 
On  the  plaintiff  explaining  the  circumstances  and  I'efusing  to  pay,  he 


192       POULTON    V.    LONDON    AND    SOUTH-WESTERN    KY.    CO.       [CHAP.  II. 

was  dttained  and  taken  back  to  the  station  by  two  policemen,  acting 
under  the  orders  of  the  station  master.  After  the  plaintiff  had  been 
detained  half  an  hour,  the  station  master  telegraphed  to  Salisbury,  and 
on  receipt  of  a  telegram  in  repl}',  "  all  right,"  the  plaintiff  was  allowed 
to  proceed. 

The  jur}'  returned  a  verdict  for  the  plaintiff  for  £10,  leave  being  re- 
served to  move  to  enter  the  verdict  for  the  defendants. 

A  rule  having  been  obtained  accordingly,  on  the  ground  that  the 
station  master  had  no  authority  fi'om  the  defendants  to  take  the  plain- 
tiff into  custody, 

June  28.  Prideaux^  Q.  C,  and  Lopes^  showed  cause.  The  defend- 
ants, a  railway  company,  can  only  act  by  their  servants  ;  the  station 
master  was  the  person  in  authorit}',  and  it  must  be  assumed  that  he 
had  authority  to  do  all  which  the  exigency  of  the  business  requires,  and 
the  defendants,  therefore,  are  bound  by  his  act  in  detaining  the  plain- 
tiff. Goff  V.  Great  Northern  Railway  Company,  30  L.  J.  (Q.  B.)  148  ; 
3  E.  &  E.  672. 

[Blackburn,  J.  In  that  case  there  ivas  a  power  to  arrest,  on  the 
assumption  that  the  facts  were  as  the  officer  arresting  supposed  ;  here 
there  is  no  such  powei".  The  distinction  is  kept  in  view  in  the  judg- 
ment in  that  case,  and  was  expressl}-  made  bj-  an  alteration  in  the 
judgment  suggested  by  Sir  Hugh  Hill,  which  certainly  made  the 
judgment  more  strictl}'  accurate.] 

The  arrest  in  that  case  was  founded  on  the  Railway's  Clauses  Con- 
solidation Act,  1845  (8  Vict.  c.  20),  ss.  103,  104,  which  gives  power  to 
detain  a  person  travelling  on  a  railway  without  having  paid  '■'  his 
fare."  The  plaintiff  and  his  horse  travelled  by  the  same  train,  and 
it  ma}'  well  be  that  the  payment  for  the  carriage  of  the  horse  and  him- 
self maj-  be  treated  as  one  contract,  so  that  the  carriage  of  the  horse  is 
part  of  the  plaintiff's  fare.  But  putting  aside  that  contention,  the 
station  master  is  placed  in  a  position  of  authorit}'  by  the  defendants, 
and  he  must  be  taken  to  have  full  authority  to  exercise  his  discretion 
as  to  law  or  fact ;  and  the  defendants  must  be  held  liable  for  his  acts 
done  so  far  in  the  course  of  his  duty  as  to  be  for  their  benefit,  just  as  if 
they  had  done  the  acts  themselves.  Seymour  v.  Greenwood,  30  L.  J. 
(Ex.)  189  ;  6  H.  &  N.  359  ;  Wilson  v.  Lancashire  and  Yorkshire  Rail- 
way Company  ;  Farren  v.  The  Same,  27  L.  T.  204. 

[Blackburn,  J.  In  Seymour  v.  Greenwood,  30  L.  J.  (Ex.)  at 
p.  328  ;  7  H.  &  N.  at  p.  358  ;  in  the  Exchequer  Chamber,  "Williams,  J., 
delivering  the  judgment  of  the  court  says:  "  It  is  urged  that,  though 
it  cannot  be  denied  that  the  defendant  authorized  his  guard  to  superin- 
tend the  conduct  of  the  omnibus  generally,  and  that  that  authority 
must  include  an  authority  to  turn  out  any  passenger  who  misconducts 
himself,  yet  that  it  gives  no  authority  to  turn  out  an  unoffending  pas- 
senger. But  by  giving  the  guard  authority  to  turn  out  an  offending 
passenger  the  defendant  necessarily  gave  him  also  authority  to  judge 
for  himself  who  should  be  considered  an  offending  passenger."     That 


SECT.  II.]       I'OULTON    V.    LONDON    AND    SOUTH-WESTERN    RY.    CO.       193 

is  in  exact  accordance  with  Goff  v.  Great  Northern  Railway  Compan}', 
30  L.  J.  (Q.  B.)  148  ;  3  E.  cfe  E.  672.] 

It  i«  a  very  fine  distinction  to  sa\'  that  the  master  is  Hable  for  a 
mistake  of  facts,  but  not  for  a  mistake  of  law,  when  the  servant  is 
Stri(;tly  acting  in  his  master's  service. 

[Blackbuun,  J.  It  has  been  decided  in  the  Exchequer  Chamber,  in 
the  somewhat  analogous  case  as  to  notice  of  action,  that  a  bond  fide 
mistake  of  facts  entitles  the  defendant  to  the  protection  of  the  statute, 
but  not  when,  on  the  given  state  of  facts,  the  defendant  was  mistaken 
in  luw.^] 

In  Seymour  v.  Greenwood,  30  L.  J.  (Ex.)  at  p.  192;  G  II.  &.  N.  at 
p.  365,  Martin,  B.,  puts  the  criterion  of  the  liability  of  the  master  to 
be,  not  whether  the  master  has  given  the  authority  to  do  the  particular 
act,  but  whether  the  servant  does  it  in  the  ordinary  course  of  his  em- 
ployment. So  in  Limi)us  v.  London  General  Omnibus  Company,  32  L. 
J.  (Ex.)  34  ;  1  H.  &  C.  520,  the  act  upon  which  the  master  was  held 
liable  was  in  direct  violation  of  his  orders,  but  was  in  the  course  of 
the  servant's  employment. 

11.  T.  Cole,  Q.  C.  {Phidcr  with  him),  in  support  of  the  rule,  cited 
Roe  V.  Birkenhead,  &c.  Railway  Company,  21  L.  J.  (Ex.)  9  ;  7  Ex. 
36 ;  and  Cox  v.  Midland  Railway  Compan}-,  3  Ex.  2G8  ;  18  L.  J. 
(Ex.)  65. 

[Prideaux,  contra,  called  attention  to  Walker  v.  Great  Western 
Railway  Company,  Law  Rep.  2  Ex.  228 ;  and  the  court  then 
adjourned.] 

June  29.  Blackburn,  J.  I  do  not  think  we  need  trouble  the 
defendants'  counsel  any  further.  There  being  no  doubt  whatever  that 
the  station  master  did  give  the  plaintiff  into  custody  and  that  that  was 
false  imprisonment,  the  only  question  is  whether  there  was  evidence 
that  the  station  master  was  clothed  with  authority  ;  that  his  act  in 
detaining  the  plaintiff  in  custody  was  within  the  scope  of  his  authority, 
and  was  such  as  that  the  evidence  before  the  jury  would  properly  con- 
vince them  that  he  was  authorized  on  the  part  of  the  company  to  do 
the  wrongful  act,  and  consequently  that  the  company  were  responsible. 

There  can  be  no  question,  since  the  decision  of  the  case  of  Goff  v. 
Great  Nortliern  Railway  Company,  30  L.  J.  (Q.  B.)  148  ;  3  E.  &  E. 
672,  that  where  a  railway  company  or  any  other  body  (for  it  does  not 
matter  whether  it  is  a  railway  company  or  not),  have  upon  the  spot  a 
person  acting  as  their  agent,  that  is  evidence  to  go  to  the  jury  that 
that  person  has  authority  from  them  to  do  all  those  things  on  their 
behalf  which  are  right  and  proper  in  the  exigencies  of  their  business, 
—  all  such  things,  as  somebody  must  make  up  his  mind,  on  behalf  of 
the  company,  whether  they  should  be  done  or  not ;  and  the  fact  that 
the  company  are  absent,  and  the  person  is  there  to  manage  their 
affairs  is  prima  facie  evidence  that  he  was  clothed  with  authority  to  do 

1  See  Roberts  v.  Orchard,  2  H.  &  C.  769 ;  33  L.  J.  (Ex.)  65.  — Rep. 

13 


194      POULTON    V.    LONDON    AND    SOUTH-WESTERN    RY.    CO.      [CHAP.  IL 

all  that  was  right  and  proper ;  and  if  he  happens  to  make  a  mistake, 
or  commits  au  excess,  while  acting  within  the  scope  of  his  authority, 
his  employers  are  responsible  for  it. 

In  the  present  case  the  station  master  took  the  plaintiff  into  custod}', 
because,  as  he  erroneously  supposed,  the  plaintiff  had  improperly 
not  paid  the  fare  for  a  horse  that  had  been  carried  on  the  defendants' 
railway.  Had  the  station  master  given  him  into  custody  under  the 
erroneous  supposition  that  he  had  not  paid  his  own  fare  for  carrying 
himself,  as  an  individual,  then,  inasmuch  as  there  is  an  authority  by  the 
Act  of  Parliament  to  arrest  and  take  into  custody  any  person  who 
does  not  pay  his  fare,  and,  consequently,  the  act  would  have  been  an 
act  which  the  railwa}'  company'  were  authorized  to  do,  it  might  be 
said  that  the  station  master,  being  the  head  man  on  the  spot,  had 
authority  to  take  into  custody  those  who  did  not  pay  their  fares ; 
and,  if  he  made  a  mistake,  it  was  a  mistake  in  doing  a  thing  which  the 
railway  company  had  given  him  authority  to  do,  and  then  the  rail- 
wa}'  compan}'  would  be  responsible.  But  what  the  plaintiff  was  given 
into  custody  for,  was  the  not  paying  the  mone}'  for  carrying  the 
horse.  There  was  an  attempt  by  the  counsel  for  the  plaintiff  to  argue 
that  that  was  part  of  "  his  fare,"  within  the  meaning  of  the  Act  of 
Parliament ;  but  we  think  that  is  untenable.  The  Act  of  Parliament 
enacts,  in  very  careful  words,  that  where  a  passenger  does  not  pay  his 
fare,  he  may  be  taken  into  custod}',  and  that  where  goods  are  not 
paid  for,  the}-  may  be  detained.  Where  a  person  does  not  pay  for  a 
horse,  and  he  is  himself  a  passenger  in  the  train,  it  would  be  an  abuse 
of  language  to  sa}'  the  money  for  the  horse  was  part  of  "  his  fare." 

Then  comes  the  question  we  have  to  determine :  can  there  be  said 
to  be  any  evidence  from  which  it  may  be  inferred  that  the  railway 
oompau}'  authorized  the  station  master  to  do  an  act  which  it  appears, 
on  every  view  of  the  facts,  he  would  be  utterl}'  unauthorized  to  do? 
We  think  not ;  we  do  not  think  it  is  within  the  scope  of  his  authority, 
in  what  he  was  authorized  to  do,  so  to  bind  the  company.  It  was  an 
act  out  of  the  scope  of  his  authority,  and  for  which  the  compan}'  would 
be  no  more  responsible  than  if  he  had  committed  an  assault,  or  done 
any  other  act  which  the  compan}'  never  authorized  him  to  do. 

There  is  little  need  to  refer  to  the  cases,  they  all  have  this  same 
distinction.  In  Goff  v.  Great  Northern  Railway  Company,  30  L.  J. 
(Q.  B.)  148 ;  3  E.  &  E.  672,  the  act  was  the  arresting  a  man  for  the 
benefit  of  the  company,  where  there  was  authority  to  arrest  a  passenger 
for  travelling  without  paying  his  fare,  and  the  court  thought,  and  no  doubt 
righth',  that  the  station  master  and  the  policemen  who  were  employed 
there  must  be  assumed  to  be  authorized  to  take  people  into  custody 
whom  they  believed  to  be  committing  the  act,  and  if  there  was  a  mis- 
take, it  was  a  mistake  made  within  the  scope  of  their  authorit}'. 

In  Seymour  v.  Greenwood,  30  L.  J.  (Ex.)  at  p.  828  ;  7  H,  &  N.  at 
p.  358  ;  in  the  Exchequer  Chamber,  Sir  E.  V.  Williams,  in  delivering 
the  judgment  of  the  court,  points  out  verj-  distinctly  that  the  conductor 


SECT.  II.J       rOULTON   V.    LONDON   AND    SOUTII-VVESTEKN    KY.    CO.       195 

was  authorized  to  remove  a  disordei-l}-  passenger ;  that  that  was  part  of 
his  authority  ;  and  when,  in  removing  a  passenger  whom  he  thought  to 
be  disorderlv,  he  used  more  violenee  than  was  neeessary,  he  was  doing 
a  tiling  within  tiie  scope  of  liis  authoiity. 

In  Limpus  r.  London  General  Oiimiijus  Company,  32  L.  J.  (Ex.)  34  ; 
1  II.  &  C.  52G,  wliere  the  question  was,  whether  or  not  the  direction 
of  my  Brother  Martin  to  tlie  jury  was  erroneous,  there  was  a  difference 
of  opinion.  The  late  Mr.  Justice  Wightman  thought  it  was  ;  that  the 
learned  judge  had  gone  too  far  to  make  tlie  company  liable  ;  the  other 
judges  thought  there  was  no  misdirection,  and  that  the  act  done 
by  the  driver  was  within  tlie  scope  of  his  authoritv,  though,  no  doubt, 
it  was  a  wrongful  and  improper  act,  and  therefore  that  his  masters 
were  responsible  for  it. 

In  the  present  case  an  act  was  done  by  the  station  master  com- 
pletel}'  out  of  the  scope  of  his  authorit}',  which  there  can  be  no 
possible  ground  for  supposing  the  railway  company  authorized  him 
to  do,  and  a  thing  which  could  never  be  right  on  the  part  of  the 
company-  to  do.  Having  no  power  themselves,  they  cannot  give  the 
station  master  any  power,  to  do  the  act.  Therefore  the  wrongful 
imprisonment  is  an  act  for  which  the  plaintiff,  if  he  has  a  remedy  at  all, 
has  it  against  the  station  master  personally,  but  not  against  the  railway 
company. 

Mellor,  J.  I  am  entirel}'  of  the  same  opinion.  I  think  the  distinc- 
tion is  clear ;  it  limits  the  scope  of  authority,  to  be  implied  from  the 
fact  of  being  the  station  master,  to  such  acts  as  the  company  could 
do  themselves,  and  I  cannot  think  it  ever  can  be  implied  that  the 
compan}-  authorized  the  station  master  to  do  that  which  they  have 
no  authority  to  do  themselves ;  and  that  seems  to  me  to  be  the 
boundary  line.  It  was  well  put  by  the  counsel  for  the  plaintiff,  and  no 
doubt  there  is  a  difficulty  at  first  in  seeing  where  the  distinction  begins 
and  where  its  ends  ;  but  I  cannot  help  thinking  it  is  analogous  to  an 
action  against  magistrates.  If  the  station  master  had  made  a  mistake 
in  committing  an  act  wliich  he  was  authorized  to  do,  I  think  in  that 
case  the  company  would  be  liable,  becouse  it  would  be  supposed  to  be 
done  by  their  authority.  Where  the  station  master  acts  in  a  manner 
in  which  the  company  themselves  would  not  be  authorized  to  act,  and 
under  a  mistake  or  misapprehension  of  what  the  law  is,  then  I  think 
the  rule  is  ver^y  different;  and  I  think  that  is  the  distinction  on  which 
the  whole  matter  turns.  So  if  a  magistrate  acts  within  the  scope  of 
his  authoritv,  however  erroneously  he  judges  of  the  facts,  he  is  pro- 
tected ;  but  the  moment  he  assumes  a  jurisdiction  over  a  matter  which 
does  not  belong  to  him,  then  an  action  lies.  It  is  a  kindred  distinction, 
and  I  only  refer  to  it  for  the  sake  of  illustration. 

Shee,  J.  I  am  of  the  same  opinion.  As  pointed  out  by  my  learned 
Brothers,  an  authorit}'  cannot  be  implied  to  have  been  given  to  a 
servant  to  do  an  act,  which,  if  his  master  were  on  the  spot,  the  master 
would  not  be  justified  in  doing,  on  the  assumption  of  a  particular  state 


19G  WHATMAN    V.    PEARSON.  [cHAP.  II. 

of  facts.  It  rs  clear,  from  the  construction  of  s.  103  of  8  Vict,  c,  20, 
that  the  company  had  no  power  to  ai'rcst  this  passenger  because  he  had 
not  paid  the  price  for  the  carriage  of  his  horse. 


Jiule  absolute. 


WHATMAN  V.   PEARSON. 

Common  Pleas.     1868. 

[L.  R.  3  C.  P.  422.] 

Declaration  for  damage  done  to  certain  iron  raiUngs  of  the  plain- 
tiff by  the  negligence  of  the  defendant's  servant  in  the  management  of 
a  horse  and  cart  of  the  defendant. 

Plea,  not  guilty,  by  statute  25  &  26  Vict.  c.  102. 

The  cause  was  tried  before  Byles,  J.,  at  the  last  sittings  at  Guildhall. 
The  plaintiff  was  the  owner  of  some  houses  at  Deptford.  The  defend- 
ant, a  contractor,  was  employed  under  the  district  board  of  Greenwich 
in  carting  away  the  soil  excavated  from  a  highway  there  during  the 
construction  of  a  sewer,  and  for  this  purpose  employed  a  number  of 
men  with  horses  and  carts.  The  duty  of  the  men  so  engaged  was,  to 
travel  with  their  carts  for  a  certain  number  of  hours  each  day  between 
the  place  where  the  excavation  was  going  on  and  the  place  of  deposit 
for  the  earth  and  rubbish,  with  an  hour's  interval  for  dinner,  but  never 
to  quit  their  horses  or  carts  or  to  leave  their  work.  One  of  the  men, 
contrar}'  to  his  instructions,  went  home  to  dinner  at  a  place  about  a 
quarter  of  a  mile  out  of  the  line  of  his  work,  and  left  his  horse  and 
cart  in  the  street  before  his  house  ;  the  horse  had  his  bridle  off  and  a 
nose-bag  on,  and  there  was  no  one  to  look  after  him.  Whilst  the  driver 
was  thus  absent,  the  horse  ran  away,  and  damaged  the  plaintiff's  rail- 
ings.    No  notice  of  action  was  given. 

The  learned  judge  left  it  to  the  jur}'  to  say  whether  the  driver  had  been 
guilty  of  negligence,  whether  he  was  at  the  time  acting  within  the  scope 
of  his  employment,  and  whether  the  injury  complained  of  was  a  thing 
done  or  intended  to  be  done  under  the  act  (25  &  26  Vict.  c.  102,  s.  106), 
under  which  tlie  contractor's  work  was  being  done.  The  jury  answered 
the  first  two  questions  in  the  affirmative  and  the  third  in  the  negative. 

The  learned  judge  reserved  leave  to  the  defendant  to  move  to  enter 
a  nonsuit,  on  the  ground  that  there  was  no  evidence  that  the  driver 
was  acting  in  the  scope  of  his  employment,  or  on  the  ground  that  the 
defendant  was  entitled  to  notice  of  action  under  25  &  26  Vict.  c.  102, 
s.  106. 

Montagu  Chambers,  Q.  C..  moved  to  enter  a  nonsuit,  or  for  a  new 
trial  on  the  ground  of  misdirection. 

1  Compare  Moore  v.  Metropolitan  Ry.  Co.,  L,  R.  8  Q.  B.  36  (1872).  — Ed. 


SECT.  II.]  WHATMAN    V.    PEARSON.  197 

BoviLL,  C.  J.  I  am  of  opinion  lliat  there  should  be  no  rule  upon 
either  ground.  As  to  the  lirst  point,  the  jury  found  that  the  defend- 
ant's servant  was  acting  in  the  course  of  his  enii)lo\  inent ;  and  1  think 
there  was  sufficient  evidence  to  support  that  finding.  In  Joel  v.  Mori- 
son,  6  C.  &  P.  501,  503,  Parke,  B.,  lays  it  down  that  "the  master  is 
onl}-  liable  where  the  servant  is  acting  in  the  course  of  his  employ- 
ment." But  he  adds:  "  If  he  was  going  out  of  his  way  against  his 
master's  in)plied  commands,  when  driving  on  his  master's  business,  he 
will  make  his  master  liable."  In  the  present  case,  the  servant  had 
charge  of  the  horse  and  cart,  and  it  was  through  his  negligence  and 
want  of  care,  whilst  acting  in  the  course  of  his  employment,  that  the 
accident  occurred.  The  jury  were  quite  at  liberty  to  come  to  the  con- 
clusion they  did  ;  and  I  cannot  doubt  its  accurac}'.  As  to  the  notice  of 
action,  —  it  is  difficult  to  see  how  such  a  case  can  be  brought  within  the 
106th  section.  The  intention  was  that  there  should  be  notice  in  all 
cases  where  the  act  compluinod  of  was  a  thing  done  or  intended  to  be 
done  under  the  powers  of  the  board  or  vestry  or  under  the  act.  The 
cause  of  action  here  is  not  a  thing  done  or  intended  to  be  done  under 
the  act ;  the  whole  thing  was  collateral.  The  defendant's  servant  was 
not  acting  or  intending  to  act  in  the  performance  of  anv  duts"  cast  upon 
his  master  by  virtue  of  the  act.  He  was  guilty  of  negligence  in  the 
care  of  the  horse  entrusted  to  him,  whilst  he  was  absent  taking  his 
meal.  That  clearly  had  no  relation  to  an  act  done  or  intended  to  be 
done  under  the  Act  of  Parliament.  Neither  the  act  done  nor  the  mis- 
chief which  resulted  had  anything  to  do  with  the  performance  of  the 
powers  of  the  act.     No  notice  of  action,  therefore,  was  necessary. 

Byles,  J.  I  am  of  the  same  opinion.  The  question  of  negligence 
was  left  to  the  jury  ;  and  they  found  that  the  defendant  had  been  guilt}- 
of  negligence.  I  agree  it  is  doubtful  whether  the  second  and  third 
questions  ought  not  to  have  been  decided  by  the  judge;  but  for  safety 
sake  I  left  them  to  the  jury.  When  the  defendant's  servant  left  the 
horse  at  his  own  door  without  any  person  in  charge  of  it.  he  was 
clearly  acting  within  the  general  scope  of  his  authority  to  conduct  the 
horse  and  cart  during  the  day.  On  the  second  point,  I  am  of  opinion 
that  the  thing  complained  of  was  not  an  act  done  or  a  default  made 
under  the  powers  of  the  board,  or  under  the  act.  If  negligence  in 
looking  after  the  horse  was  the  cause  of  the  injury,  that  clearly  had 
nothing  to  do  with  the  powers  of  the  board  ;  still  less  had  the  breaking 
of  the  plaintiffs  railings. 

Keating,  J.  I  am  of  the  same  opinion.  Upon  the  first  point  Mr. 
Chambers's  contention  in  substance  is,  that  there  was  such  an  amount 
of  deviation  by  the  defendant's  servant  from  the  line  of  his  duty,  that 
he  ceased  to  be  acting  in  the  course  of  the  employment  of  his  master. 
It  is  always,  however,  a  question  of  degree.  I  think  my  brother  Byles 
was  quite  right  in  leaving  the  question  to  the  jury.  They  found,  and 
properly,  I  think,  that  the  man  was  at  the  time  of  the  accident  acting 
in  the  course  of  his  employment.     As  to  the  want  of  notice,  — I  see 


198  TOLEDO,   WABASH,   ETC.    KY.    CO.    V.    HARMON.        [CHAP.  IL 

no  ground  for  saying  that  the  defendant's  servant  was  acting  or  intend- 
ing to  act  in  pursuance  of  the  Act  of  Parliament  when  he  was  guilty  of 
the  negligence  complained  of.  Whether  that  be  a  question  for  the 
jury  or  the  court,  I  am  equally  of  opinion  that  the  verdict  was  right. 

Montague  Smith,  J.  I  am  of  the  same  opinion.  There  was  evi- 
dence that  the  defendant's  servant  was  acting  within  the  scope  of  his 
authority,  and  not  upon  his  own  account  independently  of  his  master ; 
and  that  evidence  was  properly  submitted  to  the  jury.  Upon  the  other 
point,  there  was  no  evidence  to  satisfy  the  jury,  or  which  ought  in  niy 
judgment  to  satisfy  us,  that  a  notice  of  action  was  necessary.  The 
injury  sustained  by  the  plaintiff  did  not  arise  from  any  negligence  in 
the  performance  of  anything  done  or  intended  to  be  done  under  the 
powers  of  the  act.  It  is  not  because  a  man  may  believe  that  he  is 
acting  in  pursuance  of  the  act  that  a  notice  of  action  is  necessary. 
The  negligence  of  the  defendant's  servant  here  was  entirely  collateral 
to  anything  done  or  intended  to  be  done  under  the  powers  conferred  by 
the  act.  It  would  be  difficult  to  say  where  the  necessity  for  a  notice  of 
action  would  not  arise,  if  it  were  held  to  be  necessary  here.  If  the 
servant  were  taking  the  horse  out  of  the  shafts,  and  in  so  doing  negli- 
gently suffered  it  to  run  away  and  do  damage,  could  it  be  said  that  that 
was  a  case  within  the  act?  It  seems  to  me  that  it  would  be  an  absurd 
construction  of  the  clause  to  hold  a  case  like  this  to  be  within  it. 

Hule  re/used.^ 


TOLEDO,    WABASH    &    WESTERN    RAILWAY   CO. 
V.  HARMON. 

Supreme  Court  of  Illinois.     1868. 

[47  ///.  298.] 

Appeal  from  the  Circuit  Court  of  Morgan  count}' ;  the  Hon. 
Charles  D.  Hodges,  Judge,  presiding. 

This  action  was  in  case,  to  recover  for  injuries  received  b}'  Harmon, 
by  the  running  away  of  his  team  caused  b}'  an  engineer  of  the  road 
letting  off  steam  from  his  engine  with  a  loud  noise,  just  as  Harmon  was 
crossing  the  track.  The  declaration  contained  two  counts,  each  char- 
ging the  steam  to  have  been  let  off  wantonh'  and  maliciously,  but  one 
stating  that  the  locomotive  was  standing  still,  and  the  other,  that,  while 
moving,  the  steam  was  let  off.  The  counts  differed,  too,  as  to  whether 
the  engineer  blew  the  whistle  or  let  off  steam. 

A  demurrer  to  the  declaration  was  interposed  and  overruled.  De- 
fendants then  pleaded  the  general  issue. 

For  the  plaintiff,  three  instructions  were  given  :  — 

1  Aec. :  Ritchie  v.  Waller,  63  Conn.  ) 55  (1893).  —  Ed. 


SECT.    II.]         TOLEDO,    WABASH,    ETC.    RY.    CO.    V.    HARMON.  199 

1st.  The  jury,  if  tbej  find  the  defendants  guilty,  may  assess  the 
damages  from  all  the  facts,  and  may  include  punitive  damages,  but  not 
to  exceed  $3000. 

2d.  If  they  find  that  defendants'  engineer,  with  intent  to  frighten 
plaintiff's  horses,  unnecessaril3'  and  wantonl}'  let  off  steam  or  blew  a 
whistle,  so  that  pluiutilfs  horses  ran  off  and  injured  him,  defendants 
are  guiltj',  unless  [)hxintiff  is  also  guilt}'  of  negligence. 

3d.  Malice  in  the  engineer  need  not  be  proved  positively,  but  may  be 
inferred. 

For  the  defendants,  nine  instructions  were  asked,  and  all  but  the 
second  and  fifth  were  given:  — 

1st.  If  the  plaintiff's  neglect  co-operated  to  cause  the  injur\',  defend- 
ants are  not  liable. 

2d.  If  the  jury  believe  the  act  of  the  engineer  to  liave  l)eeu  wilful 
and  malicious,  and  that  the  act  was  not  authorized  1)\'  any  special  or 
general  command  or  permission,  expressed  or  implied,  of  defendants, 
defendants  are  not  lial)le.     (Refused.) 

3d.  Unless  they  believe  the  act  to  have  been  wilful  and  malicious,  as 
alleged,  they  must  find  for  defendants. 

4th.  If  the  acts  were  usual  and  necessar\'  at  the  time  for  the  proper 
running  of  the  engine,  they  will  find  for  tiie  defendants. 

5th.  If  the}'  believe  the  injury  to  have  been  caused  by  the  wilful  and 
malicious  act  of  the  agent  of  the  defendants,  they  will  find  for  the 
defendants.      (Refused.) 

Gth.  In  the  absence  of  evidence  to  the  contrary,  the  presumption  is 
that  defendants  ordered  their  servant  in  charge  of  the  engine  to  do 
lawful  acts  in  a  lawful  manner. 

7th.  That  unless  they  believe  that  the  engineer  wilfully,  by  his 
wilful  and  malicious  act,  so  managed  his  engine  as  to  frighten  plaintiflT's 
horses  and  cause  said  injury,  they  will  find  for  defendants. 

8th.  Unless  the  jury  believe  the  injury  to  have  been  caused  by  the 
wilful  and  malicious  act  of  defendants'  servant,  they  will  find  for 
defendants. 

9th.  If,  upon  the  weight  of  evidence,  the  jury  can  conscientiously  ex- 
plain the  occurrence  upon  the  theory  of  accident,  and  without  a  wilful 
and  malicious  purpose,  they  will  find  for  defendants. 

Verdict  for  plaintiff.  Damage  $500.  Judgment  in  accordance 
therewith. 

Motion  for  new  trial  by  defendants  upon  the  following  grounds  :  — 

1st.   The  court  admitted  improper  evidence  to  go  to  the  jury. 

2d.  The  court  erred  in  giving  the  1st,  2d  and  3d  instructions  asked 
by  the  plaintiff. 

3d.  The  court  erred  in  refusing  to  give  the  2d  and  5th  instructions 
asked  by  defendants. 

4th.  The  verdict  of  the  jury  is  contrary  to  the  law  and  evidence  of 
the  case. 

M(Mion  overruled  and  appeal  taken. 


200  TOLEDO,    WABASH,   ETC.    RY.    CO,    V.    HARMON.        [CHAP-  II 

Messrs.  Ixobertson  &  Harnes,  for  the  appellant.  Messrs.  Ketcham 
&  Atki/is,  ou  the  same  side. 

Messrs.  JIurrlsoii  &  Epler,  for  the  appellee. 

Mr.  Justice  Walker  delivered  the  opinion  of  the  Court.  The  evi- 
dence in  this  record  is  conflicting,  and  was  properly  left  to  the  con- 
sideration of  the  jur}'.  In  such  cases  this  court  will  not  disturb  the 
verdict,  unless  we  can  see  that  it  is  manifestly  against  its  weight. 
An  attentive  examination  of  the  testimony  fails  to  satisfy  us  that  the 
finding  is  unwarranted.  On  the  contrary,  we  think  it  preponderates  in 
favor  of  the  finding  of  the  jury.  If  the  agents  and  employees  of  a 
railroad  company,  while  in  the  discharge  of  their  duty,  act  with  such 
negligence  as  to  occasion  injur}'  to  others  who  are  not  in  fault,  the 
company  must  be  held  liable  in  damages  for  the  wrong.  The  well- 
being  of  society  requires  these  bodies  to  employ  careful  and  skilful 
agents,  and  that  the}-  in  the  performance  of  their  duties  shall  have  due 
regard  to  the  safety  and  rights  of  other  persons.  They  are  held  to  a 
high  degree  of  caution  and  skill  while  exercising  and  enjoying  their 
franchises.  Negligence,  or  want  of  skill  b}'  their  agents,  producing 
injury,  will  create  liability.  And  when  they  locate  their  stations  and 
depots  in  populous  cities  and  on  thoroughfares,  they  must,  for  the  pro- 
tection of  community  be  held  to  a  degree  of  care  commensurate  with 
the  greater  danger  such  a  situation  involves.  When  located  at  such 
places,  they  know  the  hazard  that  must  ensue,  and  must  be  held  to  an 
increased  degree  of  care  and  diligence  equal  to  the  greater  hazard. 
The  life  and  propert}'  of  individuals  cannot  be  lightl}'  or  wantonly 
placed  in  jeopard}-.  If  that  might  be  done,  then  these  great  instruments 
of  prosperity,  and  agents  in  the  development  of  the  resources  of  the 
country,  and  promoters  of  its  commerce,  instead  of  blessing,  would 
become  a  nuisance,  if  not  a  curse  to  our  citizens.  If  the  lives  of  men, 
or  their  property,  must  be  endangered  in  the  pursuit  of  their  ordinary 
and  legitimate  business,  while  lawfully  passing  over  our  public  high- 
ways, and  no  person  can  be  held  responsible,  then  it  would  be  an  injury 
instead  of  a  blessing  to  community  that  they  were  constructed.^  .  .  . 

It  can  make  no  difference  in  its  results  to  appellee,  whether  the  es- 
cape of  steam  was  the  effect  of  negligence,  or  from  wanton  and  wilful 
purpose.  The  engine-driver  does  not  pretend  that  there  was  any  neces- 
sity, nor  can  we  imagine  any,  for  the  escape  of  steam  at  that  time.  He 
had  stopped  his  locomotive,  and  there  could  be  no  necessity  to  start  it 
until  appellee  had  crossed  the  track,  which  could  have  required,  at  most, 
not  more  than  a  very  few  seconds.  There  could  have  been  no  danger 
of  an  explosion,  nor  is  it  "pretended  there  was.  Then  why  the  necessity 
for  the  escape  of  steam,  either  through  the  whistle  or  the  escape  pipes? 
It  must  have  been  the  result  of  gross  negligence  under  the  circum- 
stances, or  of  wanton  and  wilful  purpose,  in  total  disregard  of  the 
eecurity  of  the  life  and  property  of  appellee. 

^  Several  paragraphs  not  dealing  with  Agency  are  omitted.  —  Ed. 


SECl.  II.]         TOLEDO,    WABASH,    P:TC.    RY.    CO.    V.    IlARxMON.  201 

It  is,  however,  contended  that  if  ihe  engine-driver  did  the  act  wan- 
tonly or  wilful]}',  it  was  outside  of  his  authority,  and  hence  the  company 
are  not  liable  for  the  damages  resulting  from  the  misconduct  of  the 
engineer!  lie  was  their  servant,  was  engaged  in  the  performance  of 
the  duty  assigned  to  him,  and  if,  while  so  engaged,  he  used  the  engine 
put  into  his  possession  and  under  his  control,  to  accomplish  the  wanton 
or  wilful  act  complained  of,  why  should  not  the  company  be  held  lia- 
ble? It  is  said  that  he  was  not  employed  for  the  purpose,  nor  directed 
to  perform  the  act ;  and  it  is  equally  true  that  they  do  not  employ  en- 
gineers to  inflict  injuries  through  negligence  or  incompetency,  and  yet 
these  bodies  are  held  liable  for  such  acts  of  their  servants. 

In  the  case  of  tlie  Chicago,  Burlington  «fe  Quincj'  R.  R.  Co.  v.  Parks,  18 
111.  4G0,  it  was  urged  that  the  conductor,  in  ejecting  Parks  from  the 
train,  did  not  onlv  an  unlawful,  but  an  unautliorized  act,  and  tlie  cora- 
pan}'  were  not  liable  for  damages.  The  law  prohibited  liim  from  re- 
moving or  forcibly  ejecting  a  passenger  for  refusing  to  pay  his  fare, 
except  at  a  usual  stopping  place,  while  he  put  him  off  b}'  force  at  a 
different  place.  In  that  case,  the  agent  of  the  road  did  an  act  pro- 
hibited by  the  statute  and  outside  of  his  authority,  and  yet  the  com- 
pany were  held  liable.  In  the  case  of  the  111.  Cent.  R.  R.  Co.  v.  Reedy, 
17  111.  582,  it  was  said  that  while  trespass  might  be  maintained  against 
the  agents  of  tlie  company  for  their  immediate  acts,  yet  the  corporation 
who  employed  them  would  be  liable  in  case  for  the  damage  inflicted  by 
their  servants  ;  and  if  authority  bv  the  company  to  perform  the  act  were 
to  be  made  the  test  of  liabilit}-,  the}'  would  always  escape,  as  the}'  would 
never  authorize  their  agents  to  do  an  unlawful  act,  or  to  omit  any  duty, 
or  to  carelessly  or  negligently  perform  others,  whereby  injury  would 
result  to  individuals. 

This  court  held,  in  the  case  of  the  St.  Louis,  Alton  &  Chicago  R.  R. 
Co.  V.  Dalby,  19  111.  353,  that  a  railroad  corporation  is  liable,  in  an 
action  of  trespass,  for  an  assault  and  battery  committed  by  an  em- 
ployee of  the  company  on  a  passenger  on  the  train  ;  and  this  rule  was 
fully  approved  in  the  case  of  the  111.  Cent.  R.  R.  Co.  v.  Read,  37  111. 
484.  It  was  there  said,  in  answer  to  the  objection  to  the  want  of 
authority  in  the  agent  to  commit  the  act,  or  that  the  company  had  no 
power  to  order  a  lawful  act  to  be  done  in  an  improper  mode,  or  so  that 
it  will  violate  the  rights  of  others,  and  therefore,  such  act  must  be  re- 
garded as  that  of  the  agent,  and  not  of  tlie  company  ;  that  such  a  rule 
would  release  railway  companies  from  liability  from  all  affirmative  acts 
violating  the  rights  of  others  ;  that  in  all  such  cases  the  ready  answer 
would  be,  that  because  such  act  was  wrongful,  therefore  it  was  unlaw- 
ful, and  not  authorized  by  its  charter,  but  the  individual  act  of  their 
agents,  who  exercise  its  functions.  That  the  result  of  the  position 
would  be,  that  the  company  could  not  be  liable  for  a  trespass,  because 
no  corporation  can  be  empowered  to  commit  a  wrongful  act. 

There  can  be  no  pretence,  that  where  an  agent  commits  an  act  wil- 
fully, or  otherwise,  while  he  is  not  engaged  in  the  performance  of  his 


202        ALDKICH   V.    BOSTON    AND    WORCESTER    RAILROAD.         [CHAP.  II. 

dut^-  to  the  company,  they  would  be  liable  for  the  wrong  ;  or  even 
while  so  engaged,  if  he  were  to  personally  perform  an  act  not  connected 
with  the  business  of  the  corporation,  they  would  be  liable.  But  when 
employed  in  the  discharge  of  his  duty,  or  while  engaged  in  bperating 
their  engines  and  machinery  on  their  road,  if  he  uses  such  agencies  in 
an  unskilful  manner,  or  so  negligently  as  to  occasion  injury  to  another, 
or  even  if,  while  so  engaged,  he  wilfully  perverts  such  agencies  to  the 
purpose  of  wanton  mischief  and  injury,  the  company  should  respond  in 
damages.  They  should  not  be  permitted  to  sa^-,  it  is  true  he  was  an 
agent,  was  authorized  by  us  to  have  the  possession  of  our  engines,  was 
engaged  in  carrying  on  our  business,  and  wiiile  so  engaged,  he  wilfully 
perverted  the  instruments  which  we  placed  in  his  hands  to  something 
more  than  we  designed  or  authorized,  and,  therefore,  we  should  not  be 
liable  for  the  injur}'  thus  inflicted. 

In  this  case,  so  far  as  the  record  discloses,  the  engineer  was  properly 
engaged  in  the  use  of  the  machinery  of  the  company,  and  it  can  make 
no  difference  whether  the  escape  of  steam  was  negligently  permitted, 
or  wilfuU}'  done  bj*  the  engineer,  any  more  than  if  he  had  wilfully  run 
his  engine  against  appellee's  wagon  and  team,  and  thus  produced  the 
injur}'.  The  question,  whether  it  was  negligently  or  intentionally  done, 
can,  we  think,  make  no  difference  in  results.  It  then  follows  that  the 
instructions  were  not  improper,  and  no  error  was  committed  by  telling 
the  jury  that  the  company  were  liable  if  the  act  was  intentional  on  the 
part  of  the  engineer.     The  judgment  of  the  court  below  is  affirmed. 

Judgment  affirmed} 


ALDRICH   V.   BOSTON   and   WORCESTER  RAILROAD 
COMPANY. 

Supreme  Judicial  Court  of  Massachusetts.     1868. 
[100  Mass.  31.] 

Contract  to  charge  the  defendants  as  warehousemen  with  the  value 
of  three  barrels  of  kerosene  oil  and  four  barrels  of  glassware  burned 
between  midnight  and  four  o'clock  in  the  morning  of  November  1,  1866, 
in  their  freight  house  at  Milford. 

At  the  trial  in  the  Superior  Court,  Rockwell,  J.,  refused  a  request 
of  the  defendants  at  the  close  of  the  evidence  to  direct  a  verdict  in  their 
favor,  and  the  jury  found  for  the  plaintiff  for  the  value  of  the  glassware, 
but  not  of  the  oil.     After  this  verdict,  the  judge,  at  the  same  time 

1  Ace. :  C,  B.  &  Q.  Railroad  Co.  v.  Dickson,  63  111.  151  (1872).  Compare  Little 
Miami  Railroad  Co.  v.  Wetmore,  19  Ohio  St.  110  (1869).  See  Harrimaii  v.  Railway 
Co.,  45  id.  11,  36-38  (1887) ;  and  Railway  v.  Shields,  47  id.  387  (1890).  — Ed 


SECT.  II.]         ALDKICH   V.    BOSTON   AND    WORCESTER   RAILROAD.         203 

allowing  a  bill  of  exceptions  taken  by  the  defendants  at  the  trial,  re- 
ported the  case,  by  agreement  of  the  parties,  for  the  determination  of 
this  court,  judgment  to  be  entered  on  the  verdict  if  there  was  evidence 
of  negligence  which  should  have  been  submitted  to  the  jury,  otherwise 
the  verdict  to  be  set  aside.  The  substance  of  the  evidence  is  stated  in 
the  opinion. 

G.  S.  Hale  <S)  F.  P.  Gouldhuj,  for  the  defendants. 

II.  B.  Staples  &  T.  G.  Kent,  for  the  plaintifif. 

HoAK,  J.  The  manner  in  which  this  case  comes  before  us  is  irregu- 
lar, and  not  autiiorized  b}'  statute.  When  the  parties  consent  to  the 
report  of  a  judge  after  verdict,  it  should  contain  a  statement  of  all  the 
questions  of  law  which  it  is  proper  to  present ;  and  a  bill  of  exceptions 
cannot  be  sent  with  it.  The  losing  party  may  have  his  bill  of  excep- 
tions as  a  matter  of  right ;  but  if  the  case  is  reported,  all  the  exceptions 
allowed  should  be  incorporated  in  the  report.  But  as  upon  the  report  we 
are  all  of  opinion  that  the  action  cannot  be  maintained,  there  is  no 
need  to  examine  the  bill  of  exceptions  ;  and  the  parties  lose  no  right  b}' 
disregarding  it. 

The  action  is  brought  to  recover  the  value  of  goods  destroyed  h\  fire, 
which  were  in  the  custodv  of  the  tj«;fendants  as  warehousemen.  The 
goods  were  in  their  freigiit  house  at  Milford,  which  was  burned  in  the 
night-time  with  its  contents.  The  fire,  for  which  it  is  agreed  that  the 
defendants  were  not  responsible,  was  caused  b^-  the  burning  of  another 
building  in  tlie  neighborhood  ;  and  the  only  ground  of  liability  charged 
at  the  trial  was  the  negligence  of  their  agents  in  not  removing  the  goods 
from  the  freight  house  at  the  time  of  the  fire. 

It  appeared  that  different  persons  in  the  defendants'  emplo3'ment 
came  upon  the  ground  from  time  to  time,  and  evidence  was  offered  to 
show  that  with  due  care  and  diligence  they  might  have  saved  the  plain- 
tiff's property.  There  was  no  evidence  that  the  general  agent  who  had 
charge  of  the  freight  house  heard  the  alarm  or  was  present  at  the  fire ; 
or  that  he  was  in  any  fault  for  not  being  there.  The  servants  of  the 
coinpan}'  who  were  present  were,  a  clerk  emploN'ed  to  check  freight  as 
it  was  received,  and  to  help  deliver  it ;  a  baggage-master  and  brake- 
man  ;  a  road-master  and  superintendent  of  the  repairs  of  the  track ; 
another  baggage-master,  who  had  charge  of  the  freight  house  in  the 
day-time,  and  locked  it  at  night,  but  did  not  keep  the  ke}- ;  and  a  clerk 
employed  to  receive  freight. 

The  legal  obligation  of  the  defendants  as  warehousemen  is  w^ell 
settled  1)3'  the  authorities,  and  there  is  no  substantial  difference  be- 
tween the  parties  respecting  its  nature  and  extent.  They  are  respon- 
sible for  due  care  in  storing  the  goods  in  a  place  of  reasonable  safety-, 
and  are  to  be  charged  onh-  upon  proof  of  their  own  negligence,  or  that 
of  their  servants  in  the  course  of  their  employment.  The}'  are  not 
insurers  against  loss  by  an  accidental  fire. 

As  the  defendants  furnished  a  suitable  warehouse,  properly  secured, 
in  which  the  goods  were  deposited,  they  had  done  their  whole  duty,  until 


204  STOREY    V.   ASHTON.  [CHAP.  IL 

the  time  came  when,  upon  reasonable  notice  of  danger,  an  obligation 
should  arise  to  remove  them.  Tobin  r.  Murison,  5  Moore,  P.  C.  110. 
They  were  not  chargeable  with  the  negligence  of  any  of  their  servants, 
unless  it  was  negligence  within  the  scope  of  the  servant's  employment. 
And  a  true  test  of  this  liabilitj'  may  be  found  in  the  question,  Whether 
auy  one  of  the  defendants'  servants  who  were  present  at  the  fire  would 
be  answerable  to  his  euiployers  for  a  neglect  of  his  duty? 

The  answer  to  this  question,  upon  the  evid-ence  reported,  seems  to  us 
perfectly  plain.  It  was  no  part  of  the  service  for  which  either  of  them 
was  engaged,  to  attend  to  the  removal  of  goods  from  the  freight  house 
in  case  of  a  fire  in  the  night.  Neither  of  them  was  under  any  obliga- 
tion, b}-  reason  of  his  employment,  to  rise  in  the  night  and  be  present 
at  the  fire.  Neither  of  them  had  an^'  custod}',  or  responsibility  for  the 
safet}',  of  the  goods  at  that  time.  If  they  were  under  no  obligation  to 
be  present,  their  voluntary-  attendance  imposed  upon  them  no  legal 
liability  for  mere  omission  to  do  anything  when  on  the  spot. 

It  is  a  mere  confusion  of  terms  to  sa^-  that  the  servants  of  the  com- 
pany were  present  and  neglected  to  remove  the  goods.  Thej"  were  not 
then  and  there,  in  an}'  legal  sense,  the  servants  of  the  company.  What- 
ever they  did  was  done  b}'  them  as  volunteers,  as  neighbors  and  citi- 
zens. They  had  the  full  control  of  their  own  time  and  labors.  They  had 
the  right  to  choose  for  themselves  whom  they  would  assist,  and  whose 
goods  they  would  trj'  to  save ;  and,  in  making  the  choice,  they  in 
no  manner  implicated  the  railroad  compan}-,  or  assumed  any  of  its 
obligations. 

As  the  clerks,  brakeman,  and  baggage-master,  and  superintendent  of 
track  repairs,  were  under  no  legal  liability  to  the  defendants  for  their 
omissions  at  the  fire,  it  follows,  therefore,  that  the  defendants  are  not 
chargeable  with  their  neglect,  an}'  more  than  with  the  neglect  or  ineffi- 
cienc}'  of  any  other  persons  who  were  there  ;  and  the  whole  foundation 
of  the  action  fails.  Hew  trial  granted. 


STOREY  V.  ASHTON. 

Queen's  Bench.     1869. 

\L.  R.4  Q.  B.  476.] 

Declaration.  That  the  defendant  was  possessed  of  a  horse  and 
cart  then  being  driven  under  the  control  of  a  servant  of  the  defendant, 
and,  b}'  the  servant's  negligence  in  driving,  the  horse  and  cart  were 
driven  over  the  plaintiflf,  who  was  crossing  a  certain  highway,  to  wit, 
the  City  Road. 

Pleas  :  1 .    Not  guilty. 

2.  That  the  horse  and  cart  were  not  under  the  control  of  the  defend- 
ant's servant. 


SECT.  II.]  STOREY  V.    ASHTON.  205 

Issue  joined. 

At  the  trial  before  Hannen,  J.,  at  the  sittings  in  Middlesex,  during 
Trinity  Term,  1868,  it  appeared  tliat  the  plaintiff,  a  child  of  six  years 
old,  was  on  the  23rd  of  February,  1867,  run  over  in  the  City  Road 
by  a  horse  and  cart  of  the  defendant,  driven  by  a  servant  of  the 
defendant. 

The  defendant  was  a  wine  merchant  having  offices  in  Vine  Street, 
Minories.  On  the  day  in  question,  which  was  a  Saturday,  the  defend- 
ant sent  a  clerk  and  a  carman  with  a  horse  and  cart  to  deliver  wine  at 
Blackheath.  They  delivered  the  wine  and  received  some  empty  bottles, 
and  it  was  then  the  dut}'  of  the  carman  to  have  driven  back  direct  to 
the  defendant's  offices,  left  the  empties  there,  and  taken  the  horse  and 
cart  round  to  the  stables  in  the  neighborhood  ;  instead  of  doing  this, 
it  being  after  business  hours  (3  p.  m.)  on  Saturda}',  the  carman,  after 
he  had  crossed  London  Bridge,  when  about  a  quarter  of  a  mile  from 
home,  instead  of  turning  at  the  statue  in  King  William  Street  to  the 
east  toward  the  Minories,  at  the  persuasion  of  the  clerk  drove  north- 
ward to  the  clerk's  house,  near  the  City  Road,  and  thence  to  fetch  a 
cask  (which  the  clerk  had  sold  to  a  cooper  in  the  cit}'),  from  the  house 
of  the  clerk's  brother-in-law  at  Barnsbur}* ;  and  it  was  while  they  were 
driving  along  the  City  Road  towards  Barnsl)ury  that  the  accident  hap- 
pened to  the  plaintift'. 

There  was  contradictor}'  evidence  as  to  who  was  in  fault ;  but  by 
consent  the  only  question  left  to  the  jur}-  was  the  amount  of  damages ; 
and  a  verdict  was  directed  for  the  defendant,  with  leave  to  move  to 
enter  it  for  the  plaintiff  for  £80,  the  amount  found  by  the  jur}-,  if  the 
Court  should  be  of  opinion,  on  the  evidence,  that  the  defendant  was 
liable  for  the  negligence  of  his  servant. 

A  rule  having  been  obtained  accordingly, 

Prentice^  Q.  C,  and  A.  L.  Smith,  showed  cause. 

Digby  Seymour,  Q.  C,  and  Finlay,  in  support  of  the  rule. 

CoCKBURN,  C.  J.  I  am  of  opinion  that  the  rule  must  be  discharged. 
1  think  the  judgments  of  Maule  and  Cresswell,  JJ.,  in  Mitchell  v.  Crass- 
weller,  13  C.  B.  237;  22  L.  J.  (C.  P.)  100,  express  the  true  view  of 
the  law,  and  the  view  which  we  ought  to  abide  by  ;  and  that  we  cannot 
adopt  the  view  of  Erskine,  J.,  in  Sleath  v.  Wilson,  9  C.  &  P.  607,  612, 
that  it  is  because  the  master  has  intrusted  the  servant  with  the  control  qf 
the  horse  and  cart  that  the  master  is  responsible.  The  true  rule  is  that 
the  master  is  only  responsible  so  long  as  the  servant  can  be  said  to  be 
doing  the  act,  in  the  doing  of  which  he  is  guilty  of  negligence,  in  the 
course  of  his  employment  as  servant.  I  am  ver}-  far  from  saying,  if 
the  servant  when  going  on  his  master's  business  took  a  somewhat  longer 
road,  that  owing  to  this  deviation  he  would  cease  to  be  in  the  employ- 
ment of  the  master,  so  as  to  divest  the  latter  of  all  Uability  ;  in  such 
cases,  it  is  a  question  of  degree  as  to  how  far  the  deviation  could  be 
considered  a  separate  journey.  Such  a  consideration  is  not  applicable 
to  the  present  case,  because  here  the  carman  started  on  an  entirely  new 


206  MURRAY   V.   CUKRIE.  [CHAP.  IL 

and  independent  journe}'  which  had  nothing  at  all  to  do  with  his  em- 
ployment. It  is  true  that  in  Mitchell  i'.  CrassweUer,  13  C.  B.  237; 
22  L.  J.  (C.  F.)  100,  the  servant  had  got  nearly  if  not  quite  home, 
while,  in  the  present  ease,  the  carman  was  a  quarter  of  a  mile  from 
home  ;  but  still  he  started  on  what  may  be  considered  a  new  journey 
entircl}-  for  his  own  business,  as  distinct  from  that  of  his  master  ;  and  it 
would  be  going  a  great  deal  too  far  to  say  that  under  such  circum- 
stances the  master  was  liable. 

Mellor,  J.  I  am  of  the  same  opinion.  Generally  speaking,  the 
master  is  answerable  for  the  negligent  doing  of  what  he  employs  his 
servant  to  do  ;  and  it  is  not,  as  Cresswell,  J.,  says,  because  the  servant 
in  executing  his  master's  orders  does  so  in  a  roundabout  way,  that  the 
master  is  to  be  exonerated  from  liability.  But  here,  though  the  car- 
man started  on  his  master's  business,  and  had  delivered  the  wine  and 
collected  the  empty  bottles,  when  he  had  got  within  a  quarter  of  a 
mile  from  the  defendant's  office,  he  proceeded  in  a  directh'  opposite 
direction,  and  as  soon  as  he  started  in  that  direction  he  was  doing 
nothing  for  his  master  ;  on  the  contrary  every  step  he  drove  was  awaj' 
from  his  duty. 

Lush,  J.  I  am  of  the  same  opinion.  The  question  in  all  such  cases 
as  the  present  is  whether  the  servant  was  doing  that  which  the  master 
employed  him  to  do.  If  he  was,  the  master  is  liable  for  the  negligence 
just  as  if  he  himself  was  guilty  of  it.  Here  the  employment  was  to 
deliver  the  wine,  and  carry  the  empty  bottles  home  ;  and  if  he  had  been 
merely  going  a  roundabout  wa}'  home,  the  master  would  have  been 
liable  ;  but  he  had  started  on  an  entirely  new  journe}'  on  his  own  or  his 
fellow-servant's  account,  and  could  not  in  any  way  be  said  to  be  carry- 
ing out  his  master's  employment. 

Hannen,  J.,  concurred.  Hule  discharged. 


MURRAY   V.   CURRIE. 
Common  Pleas.    1870. 

[L.  R.  6  C.  P.  24.] 

The  declaration  stated  that  the  defendant,  by  his  servants  and 
workmen,  being  engaged  in  the  unloading  of  a  vessel  in  or  near  a 
public  dock  in  Liverpool,  bj'^  his  said  servants  and  workmen  so  neg- 
ligently and  improperly  conducted  himself  about  the  premises  that  by 
means  thereof  certain  machinery  or  cog-wheels  were  set  in  motion, 
whereby  the  hand  of  the  plaintiff,  who  was  lawfully  upon  the  ship,  was 
drawn  in  between  the  said  cog-wheels  and  crushed  and  injured,  &c. 

Pleas,  first,  not  guilt}' ;    secondly,   a  denial  that  the   defendant  by 


SECT.  II.]  MURRAY    V.    CURRIE.  207 

his  servants  and  workmen  was  engaged  in  unloading  the  ship.  Issue 
thereon. 

The  cause  was  tried  before  the  assessor  of  the  Passage  Court,  Liver- 
pool, on  the  20th  of  Jul}-  last.  The  defendant,  it  appeared,  was  the 
owner  of  the  steam-ship  Sutherland,  which  at  the  time  of  the  accident 
in  question  was  alongside  a  quay  in  the  Nelson  Dock.  For  the  i)urpose 
of  facilitating  the  loading  and  unloading  of  cargo  the  vessel  was  pro- 
vided with  a  winch  at  each  of  her  four  hatchways,  worked  by  a  donkc}'- 
engine.  On  the  loth  of  January  last,  whilst  the  plaintiff,  who  was  a 
dock-laborer,  was  engaged  together  with  one  Davis,  one  of  the  Suther- 
land's crew,  in  unloading  the  vessel  by  means  of  one  of  the  winches, 
his  hand  was,  through  the  negligence  of  Davis,  jammed  between  the 
cog-wheel  and  pinion,  and  much  injured.  The  work  of  unloading  the 
vessel  was  being  done  l)y  one  Kennedy,  a  mastei'  stevedore ;  and  all 
the  men  engaged  in  it  were  under  his  direction  and  control. 

Kennedy,  who  was  called  for  the  defendant,  stated  that  he  supplied 
the  labor  for  the  unloading  and  the  working  of  the  steam-engine  ;  that 
Davis  worked  the  winch,  and  was  full}'  competent;  that  the  office 
[i.  e.  the  defendant]  paid  him,  but  deducted  the  sum  paid  from  his 
(Kennedy's)  bills;  that  all  the  unloading  was  under  his  control  and 
that  of  his  foreman  ;  that  he  would  have  had  to  get  labor  elsewhere,  if 
the  sliip  had  not  found  men  ;  that  the  ship-owner  selected  those  of  the 
crew  who  were  employed  in  unloading,  but  he  (Kennedy)  selected  the 
work  for  them,  and  had  control  over  it ;  and  that  he  could  have  refused 
to  employ  Davis  or  an}-  man  whom  he  thouglit  incompetent. 

Tlie  verdict  was  by  consent  entered  for  the  plaintiff,  damages  £50, 
with  leave  to  the  defendant  to  move  to  enter  a  verdict  for  him  if  the 
court  should  be  of  opinion  that  the  defendant  was  not  under  the  circum- 
stances liable  for  the  negligence  of  Davis,  — the  court  to  be  at  liberty 
to  draw  inferences  of  fact. 

('.  linssell  obtained  a  rule  nisi,  citing  Murph}'  v.  Caralli,  3  H.  &  C. 
462:  34  L.  J.  (Ex).  14. 

IlerscheH  showed  cause.  Davis  was  the  servant  of  the  defendant, 
and  not  of  Kenned}',  the  stevedore,  and  the  defendant  was  therefore 
responsible  for  his  negligence.  The  fact  that  Davis  was  at  the  time  of 
the  accident  acting  under  the  direction  of  the  stevedore  makes  no 
difference. 

[BoviLL,  C.  J.  The  question  is,  who  was  working  the  winch,  —  the 
defendant  or  Kennedy? 

Bkett,  J.  If  Davis  by  his  negligence  had  damaged  part  of  the 
cargo,  would  not  Kennedy  have  been  liable  to  the  owner?] 

It  is  submitted  that  he  would  not.  The  true  test  is,  whose  servant 
was  Davis,  not  under  whose  immediate  orders  he  was  working ;  or,  as 
Crompton,  J.,  says  in  Sadler  v.  Henlock,  4  E.  &  B.  570,  578  ;  24  L.  J. 
(Q.  B.)  138,  141  ;  cited  in  Warburton  v.  Great  Western  Railway  Co., 
Law  Rep.  2  Ex.  30  :  "  The  test  is,  whether  the  defendant  retained 
the  power  of  controlling  the  work." 


208  MURRAY   V.   CURRIE.  [CHAP.  II. 

rBRETT,  J.  How  do  you  meet  the  case  of  Murphe}"  v.  Caraili  cited 
by  Mr.  Russell  on  moving?] 

There  the  work  was  being  done  under  the  control  and  superintend- 
ence of  the  warehousekeeper,  and  for  his  benefit ;  the  persons  through 
whose  negligence  the  injury  was  caused  were  not  in  any  sense  acting 
as  the  servants  or  in  pursuance  of  orders  of  the  defendant.  The  case 
is  so  put  by  Bkamwell,  B.,  in  his  judgment. 

C.  Russell,  contra,  was  not  called  upon. 

BoviLL,  C.  J.  Mr.  Herschell  has  put  the  case  very  clearly  before 
us  ;  but  his  argument  has  failed  to  carry  conviction  to  my  mind. 
Kennedv,  the  stevedore,  undertook  to  execute  the  work  of  unloading 
the  Sutherland,  and  for  that  purpose  a  steam-winch  belonging  to  the 
chip  was  placed  at  his  disposal.  The  work  of  unloading  was  done  b}' 
Kennedy  under  a  special  contract.  lie  was  acting  on  his  own  behalf, 
and  did  not  in  any  sense  stand  in  the  relation  of  servant  to  the 
defendant.  He  had  entire  control  over  the  work,  and  employed  such 
persons  as  he  thought  proper  to  act  under  him.  He  had  the  option  of 
using  the  services  of  the  crew  of  the  ship  ;  but  he  was  under  no  obliga- 
tion to  do  so.  Whether  he  selected  independent  laborers  or  part  of 
the  crew,  they  were  all  his  servants,  and  their  acts  were  his  acts, 
and  not  the  acts  of  the  owner.  The  owner  did  not  exercise  any  control 
over  the  work.  All  was  left  to  the  stevedore  and  those  whom  he 
employed.  The  stevedore  paid  for  the  labor  he  engaged,  making  an 
allowance  to  the  owner  of  the  vessel  for  the  pa}'  of  those  of  the  crew 
who  assisted  in  the  work.  Davis  was  employed  in  this  way  by  the 
stevedore,  and  was  doing  his  work,  and  under  his  control  and  superin- 
tendence. In  no  sense,  therefore,  can  it  be  said  that  Davis  was 
working  for  or  under  the  orders  of  the  defendant,  so  as  to  make  the 
maxim  "  Respondeat  superior"  apply.  The  defendant  did  not  stand 
in  the  relation  of  superior.  The  rule  must  be  made  absolute  to  enter 
a  nonsuit. 

WiLLES,  J.  I  am  of  the  same  opinion.  It  is  to  be  observed  that 
this  is  not  a  question  arising  between  ship-owner  and  charterer.  The 
emplo3"ment  of  stevedores  has  grown  out  of  the  duty  of  the  owner  to 
load  and  unload  the  ship.  This  duty  used  formerly  to  be  executed  by 
the  crew ;  but,  in  dealing  with  large  cargoes,  the  exigencies  of  modern 
commerce  have  created  a  necessity  for  the  employment  of  persons 
skilled  in  the  particular  work  of  stowing  cargo.  The  stevedores,  how- 
ever, are  not  the  servants  of  the  owner  of  the  ship  ;  but  they  are  persons 
having  a  special  employment,  with  entire  control  over  the  men  era- 
ployed  in  the  work  of  loading  and  unloading.  They  are  altogether 
independent  of  the  master  or  owner.  In  one  sense,  indeed,  the>'  may 
be  said  to  be  agents  of  the  owner ;  but  the}-  are  not  in  an\-  sense  his 
servants.  The}-  are  not  put  in  his  place  to  do  an  act  which  he  intended 
to  do  for  himself.  I  apprehend  it  to  be  a  clear  rule,  in  ascertaining 
who  is  liable  for  the  act  of  a  wrong-doer,  that  3'ou  must  look  to  the 
wrong-doer  himself  or  to  the  first  person  in  the  ascending  line  who  is 


SECT.  II.]  MURRAY    V.    CUKRIE.  209 

the  employer  and  has  control  over  the  work.  You  cannot  go  further 
back,  and  make  tlie  employer  of  that  person  liable.  Tlie  question 
here  is,  whether  Davis,  who  caused  the  accident,  was  employed  at  the 
time  in  doing  Kennedy's  work  or  the  ship-owner's.  It  is  possible  that 
he  might  have  been  the  servant  of  both  ;  but  the  facts  here  seem  to  me 
to  negative  that.  The  rule,  out  of  which  this  case  forms  an  exception, 
that  a  servant  or  workman  has  no  remedy  against  his  employer  for  an 
Injury  sustained  in  his  emplo}"  through  tlie  negligence  of  a  fellow- 
servant  or  workman,  is  subordinate  to  another  rule,  and  does  not  come 
into  operation  until  a  preliminary  condition  is  fulfilled  ;  it  must  be 
shown  that,  if  the  injur}-  had  been  done  to  a  stranger,  he  would  have 
had  a  remed}'  against  the  person  who  employed  the  wrong-doer.  Here, 
I  apprehend,  the  defendant  would  not  have  been  liable  to  the  charterer 
if  the  wrongful  act  of  Davis  had  caused  damage  to  any  part  of  the 
cargo ;  and  for  this  simple  reason,  that  the  person  doing  the  work 
in  the  performance  of  which  the  damage  was  done  was  not  doing  it  as 
his  servant.  He  was  acting  altogether  independent  of  his  control. 
The  defendant  could  not  have  taken  him  away  from  the  work.  It  was 
Kennedy's  work  that  he  was  eraplo^'ed  upon,  and  under  Kenned^-'s 
control.  The  liability  of  a  master  for  the  acts  of  his  servant  extends 
only  to  such  acts  of  tlie  servant  as  are  done  by  him  in  the  course  of  the 
master's  service.  The  master  is  not  liable  for  acts  done  by  the  servant 
out  of  the  scope  of  his  duty,  even  though  the  master  ma}'  have  entered 
into  a  bargain  that  his  servant  should  be  emplo^'ed  b}-  another,  and  is 
paid  for  such  service,  as  was  done  here.  It  seems  to  me  to  be  quite 
plain  that  the  defendant  incurred  no  liabilitv  for  the  act  of  Davis. 

Montague  Smith,  J.  I  am  of  the  same  opinion.  Applying  all  the 
usual  tests,  the  defendant  was  not  the  master  of  Davis  in  doing  the 
work  in  the  course  of  which  the  injuiT  w'as  received  b^*  the  plaintiff. 
He  was  not  the  immediate  principal  of  Davis,  but  Kenned}',  who  was 
an  independent  contractor  as  stevedore  to  unload  the  vessel,  was. 
In  order  to  perform  his  contract,  it  was  necessary  for  Kennedy  to 
emplo}'  a  number  of  laborers.  He  selected  them.  Some  of  them  were 
persons  unconnected  with  the  ship.  Others  were  part  of  the  crew  of 
the  vessel,  emploj-ed  at  the  request  or  upon  the  recommendation  of  the 
defendant  or  the  master.  But,  though  he  employed  them  upon  that 
recommendation,  it  was  competent  to  Kenned}'  to  reject  their  services. 
It  follows,  therefore,  not  only  that  Kenned}'  was  the  immediate  prin- 
cipal for  whom  the  work  was  done,  but  also  that  he  was  the  employer 
of  Davis,  and  the  entire  controller  of  the  labor  of  those  whom  he  em- 
ployed. An  ambiguity  was  sought  to  be  raised  from  the  circumstance 
of  Davis  being  one  of  the  crew  ;  but  he  was  employed  under  an  arrange- 
ment by  which  his  wages  for  the  time  were  to  be  ultimately  paid  by 
Kennedy.  I  entirely  agree  with  the  rest  of  the  court  that  Davis  was 
the  servant  of  Kennedy  and  not  of  the  defendant,  and  was  subject 
only  to  Kennedy's  orders,  and  consequently  that  the  defendant  is  not 
liable. 

U 


210  LAWRENCE   V.    SHIPMAN.  [CHAP.  II. 

Brett,  J.  The  ordinary  contract  and  liability  of  a  stevedore  is 
well  established  ;  and  the  only  question  here  is  whether  there  was  any- 
thing in  the  evidence  to  take  the  case  out  of  the  ordinary  rule.  The 
only  circumstance  relied  on  for  that  purpose  is  that  the  defendant 
placed  the  services  of  Davis  at  the  disposal  of  the  stevedore.  But  I 
apprehend  it  to  be  a  true  principle  of  law  that,  if  I  lend  ray  servant  to 
a  contractor,  who  is  to  have  the  sole  control  and  superintendence  of  the 
work  contracted  for,  the  independent  contractor  is  alone  liable  for  any 
wrongful  act  done  by  the  servant  while  so  employed.  The  servant  is 
doing,  not  my  work,  but  the  work  of  the  independent  contractor. 

Mule  absolute. 


LAWRENCE  v.  SHIPMAN. 
LUX  V.  SHIPMAN. 

Superior  Court  op  Hartford  County,  Connecticut.     1873. 

[39   Conn.  586.] 

The  following  opinion  was  given  by  Hon.  O,  S.  Seymour,  Judge  of 
the  Supreme  Court,  in  two  cases  in  the  Superior  Court  in  Hartford 
County,  submitted  to  him  as  an  arbitrator,  under  a  rule  of  court,  by 
William  T.  Lawrence,  plaintiff  in  the  one,  and  Peter  Lux,  plaintiff  in 
the  other,  and  Nathaniel  Shipraan  and  George  M.  Bartholomew,  defend- 
ants in  both  cases,  the  defendants  being  trustees.  The  questions  of 
law  considered  and  decided  make  the  opinion  one  of  interest  to  the 
profession  and  the  public.  The  facts  are  sufficiently  stated  b}'  the 
judge. 

H.  S.  Barbour  and  Merrill^  for  the  plaintiffs. 

Robinson  for  the  defendants. 

JUDGE  Seymour's  opinion. 

These  two  cases  have  been  submitted  to  me  as  arbitrator  under  a 
rule  of  court.  The  two  are  substantially  alike.  The  plaintiffs  were 
respectively  tenants  of  the  defendants,  occupying  a  brick  building 
called  the  Russ  Place,  which  the  defendants  owned  as  trustees  in  fee, 
situate  on  the  west  side  of  Main  street,  in  the  cit}'  of  Hartford.  The 
plaintiffs  aver  that  while  thej-  were  thus  occupying  the  tenement  on  the 
13th  day  of  July,  1869,  and  for  several  days  next  previous  thereto, 
the  defendants  carelessly  and  negligently'  excavated  and  removed,  and 
caused  to  be  excavated  and  removed,  the  earth  and  foundation  from 
under  the  south  wall  of  said  tenement,  and  did  thereb}'  remove  the 
necessary  support  of  said  wall,  and  on  said  daj'  had  negligentl}'  and 
carelessl}'  made  and  caused  to  be  made  the  excavation  and  removal 
aforesaid,  without  providing  other  necessar}'  support  of  said  wall,  and 
had  negligently  omitted  to  shore  up  said  wall  as  aforesaid,  although 


SECT.  II.]  LAWRENCE   V.    SIIIl'MAN.  211 

wanietl  b}-  the  plaintiffs  of  the  danger,  whereby  the  wall  sank  aiul  fell 
and  the  whole  building  was  demolished,  and  the  plaintiffs'  goods  of 
great  value  were  destroyed, 

There  is  no  serious  eonlliet  of  testiraon}*.  Indeed  most  of  the  facts 
are  agreed  to.  The  relation  of  the  parties  to  each  other  is  as  stated  in 
the  writ.  One  Duffy  owned  the  premises  south  of  and  adjoining  those 
of  the  defendants,  and  he  had  pulled  down  a  tenement  on  his  lot  in 
order  to  rebuild.  Neither  building  had  a  cellar.  Duffy  had  n)ade  con- 
siderable progress  in  digging  a  cellar  on  bis  lot,  when  he  had  a 
comnuinication  with  the  defendants  proposing  that  they  should  join 
him  in  building  a  party  wall  of  stone  under  the  south  wall  of  the 
defendants'  tenement.  Duffy's  proposition  was  favorably  entertained, 
and  resulted  in  a  verbal  contract  with  a  builder  and  mason  by  trade,  to 
remove  the  earth  from  under  the  south  wall  of  the  defendants'  tenement 
and  underpin  it  with  stone.  He  was  to  furnish  everything  needed  for 
the  job.  The  stone  structure  was  to  be  laid  eight  feet  below  the  side- 
walk, and  was  to  extend  the  depth  of  the  defendants'  building,  and 
was  to  be  two  and  a  half  feet  in  thickness,  nine  inches  being  on  Duffy's 
land  and  one  foot  nine  inches  on  the  defendants'  land.  The  price  agreed 
on  was  $500,  one  half  to  be  paid  by  Mr.  Duff}'  and  one  half  b}-  the 
defendants.  The  defendants  and  Duffy  were  the  contracting  parties  on 
one  side  and  the  mason  on  the  other.  The  defendants  did  not  have, 
nor  were  they  by  the  terms  of  the  contract  to  have,  anj'  oversight  or 
direction  of  the  job.  The}'  relied  on  the  skill  and  experience  of  the 
mason  to  do  the  work  properly,  carefully,  and  according  to  his  contract. 

The  contractor  commenced  his  work  about  the  12th  of  July,  under- 
mining at  first  about  nine  feet  of  the  defendants'  wall  and  immediately 
began  tilling  up  the  gap  with  stone.  On  the  13th  he  continued  his 
stone  work,  but  unfortunately  and  unadvisedly  he  undermined  the  wall 
at  another  place  before  the  first  gap  was  filled  and  thus  weakened  the 
foundation,  so  that  at  about  half-past  three  o'clock  in  the  afternoon  of 
the  13th  of  July,  the  whole  building  tumbled  into  a  mass  of  shapeless 
ruins.  The  occupants  bare!}'  escaped  with  their  lives,  saving  none  of 
their  property. 

The  principal  question  of  law  raised  in  the  case  arises  out  of  the  fore- 
going facts.  Some  other  facts,  however,  appeared  in  evidence  which 
will  be  hereafter  noticed,  as  bearing  upon  the  question  of  the  defend- 
ants' liability.  The  first  question  suggested  is,  whether  this  negligence 
of  the  mason  can  in  law  be  imputed  to  the  defendants.  If  he  was  their 
servant  his  carelessness  is  in  law  theirs.  If,  on  the  other  hand,  he  was 
mereh'  a  contractor,  acting  as  such  in  an  independent  business,  the}- 
are  not  under  the  general  rule  of  law  liable,  though  the}-  ma}'  even  then 
under  certain  circumstances  be  held  responsible.  Whatever  obscurity 
may  heretofore  have  rested  upon  the  distinction  between  servant  and 
contractor,  it  is  now  established  law  that  such  a  distinction  exists,  and 
the  elements  which  distinguish  the  one  from  the  other  by  the  modern 
decisions  have  been  determined  with  considerable  approach  to  exact- 


212  LAWRENCE   V.    SHIPMAN.  [CHAP.  II. 

ness  and  accurac\",  though  it  must  be  admitted  that  in  some  uistances 
the  distinction  is  nice  and  difficult.     In  this  case  it  is  to  be  noticed : 

1.  That  the  mason  was  employed  in  a  single  transaction  at  a  specified 
price  for  the  job. 

2.  By  the  terms  of  the  contract  he  was  to  accomplish  a  certain 
specified  result,  the  choice  of  means  and  methods  and  details  being 
left  wholly  to  him. 

3.  The  employment  was  of  a  mechanic  in  his  regular  business,  recog- 
nized as  a  distinct  trade,  requiring  skill  and  experience,  and  to  which 
apprenticeslups  are  served. 

4.  The  contractor's  duty  was  to  conform  himself  to  the  terms  of  the 
contract,  and  he  was  not  subject  to  the  immediate  direction  and  control 
of  his  employers. 

These  circumstances  bj'  all  the  authorities  indicate  a  contractor  in 
contradistinction  from  a  mere  servant,  and  the  defendants  cannot  in 
mj'  judgment  be  subjected  for  the  negligence  of  the  contractor,  upon 
the  basis  of  the  relation  of  master  and  servant.  But  it  was  suggested 
in  the  argument  that  as  the  contractor  was  at  work  on  the  defendants' 
propert}^,  by  their  procurement  and  for  their  benefit,  and  being  selected 
by  them,  natural  justice  requires  that  they  should  bear  the  consequences 
of  his  negligence  rather  than  the  plaintiffs,  who  are  innocent  sufferers, 
having  had  no  agency  whatever  in  the  transaction  which  caused  the 
loss. 

These  suggestions  are  not  without  a  show  of  reason,  and  their  force 
is  fully  admitted  in  the  law  as  applicable  to  a  certain  class  of  cases. 

1.  If  a  contractor  faithfully  performs  his  contract,  and  a  third  person 
is  injured  by  the  contractor,  in  the  course  of  its  due  performance,  or  by 
its  result,  the  employer  is  liable,  for  he  causes  the  precise  act  to  be  done 
which  occasions  the  injury  ;  but  for  negligences  of  the  contractor,  not 
done  under  the  contract  but  in  violation  of  it,  the  employer  is  in  general 
not  liable.  It  is  not  claimed  here  that  the  injury  to  the  plaintiffs  arose 
from  the  due  performance  of  the  contract.  On  the  contraiy,  it  resulted 
from  the  breach  of  the  contract,  by  the  contractor  not  doing  his  work 
with  suitable  care. 

2.  If  I  emplo}'  a  contractor  to  do  a  job  of  work  for  me  which  in  the 
progress  of  its  execution  obviously  exposes  others  to  unusual  peril,  I 
ought,  I  think,  to  be  responsible  upon  the  same  principle  as  in  the  last 
case,  for  I  cause  acts  to  be  done  which  naturally  expose  others  to  injury. 
The  case  now  before  me  could  not,  however,  I  think,  come  under  this 
head.  The  peril,  whatever  it  was,  was  mainly  to  the  defendants'  own 
tenement,  and  cannot  be  treated,  notwithstanding  the  unfortunate  event, 
as  one  at  all  imminent  to  the  plaintiffs. 

3.  If  I  employ  as  a  contractor  a  person  incompetent  and  untrust- 
worthy, I  may  be  liable  for  injuries  done  to  third  persons  by  his  care- 
lessness in  the  execution  of  his  contract.  This,  too,  has  no  application 
to  the  case  before  me.  But  the  plaintiffs  claim  that  the  same  principle 
is  ap[)licable  to  the  employment  of  a  person  pecuniarily  irresponsible, 


SECT.  II.]  LAWKENCE   V.    SHIPMAN.  213 

and  evidence  was  received,  subject  to  objection,  that  the  contractor  was 
destitute  of  propert}' ;  and  I  am  called  upon  to  decide  the  efTect  of  this 
fact.  I  am  not  prepared  to  say  that  this  fact  may  not  be  of  some  weight 
where  the  work  to  be  done  is  hazardous  to  others.  If  a  person  having 
an  interest  in  a  job  which  naturally  exposes  others  to  peril,  should 
attempt  to  shield  himself  from  responsibility  by  contracting  with  a 
bankrupt  mechanic,  I  think  the  employers  might  be  subjected  for  dam- 
ages done  b}'  the  contractor,  but,  as  before  stated,  the  work  to  be  done 
by  the  contractor  involved  no  peril  in  its  usual  performance,  and  I 
cannot  hold  the  defendants  liable  under  this  claim. 

4.  The  employers  may  be  guilty  of  personal  neglect,  connecting  itself 
with  the  negligence  of  the  contractor  in  such  manner  as  to  render  both 
liable.  I  find  no  precedents  to  guide  me  under  this  head,  but  the  prin- 
ciples of  the  law  lead  inevitably  to  this  conclusion. 

[Here  follows  an  examination  of  the  evidence  on  this  point,  which  is 
omitted  by  the  reporter;  the  conclusion  of  the  judge  being  that  the 
defendants  had  not  been  guilt}'  of  any  personal  negligence.] 

I  therefore  award  that  the  defendants  are  not  guilt}'  in  manner  and 
form  as  alleged. 

There  are  other  cases  than  those  mentioned  in  which  the  employer  is 
liable  for  the  negligence  of  his  contractor,  but  they  have  no  special 
application  to  the  matter  before  me.  I  will  barely  allude  to  them.  It 
has  always  been  understood  that  if  the  negligence  creates  a  nuisance 
the  employer  is  liable,  though  in  a  late  English  case  this  seems  to  be 
somewhat  doubted.  Overton  r.  Freeman,  11  C.  B.  867.  So  if  the 
contract  is  to  do  an  unlawful  thing,  the  employer  as  well  as  the  con- 
tractor is  liable  for  the  damage  done  in  the  execution  of  the  contract. 
There  was  formerly  a  doubt  whether  the  owner  of  real  propert}'  could 
be  protected  from  liabilit}'  caused  b}-  work  upon  it  by  a  contractor,  but 
it  is  now  settled  that  real  and  personal  property-  stand  upon  the  same 
footing  in  this  respect. 

These  cases  are  submitted  to  me  as  an  arbitrator,  with  full  power,  as 
I  understand,  upon  questions  of  law  and  fact.  The  plaintiffs  are  inno- 
cent sufferers  to  a  large  amount  b}'  the  fall  of  this  building.  The  suits 
have  been  very  fairh'  conducted  with  a  view  to  a  full  investigation  of 
the  facts  and  the  law  applicable  to  the  facts.  There  are  circumstances 
connected  with  the  case  which  I  think  justifj'  me  in  making  the  matter 
so  far  a  mere  matter  of  arbitration  as  to  award  that  no  costs  be  taxed 
against  the  plaintiffs,  and  that  the  arbitrator's  fees  be  paid  half  b}'  the 
plaintiffs  and  half  by  the  defendants. 

O.  S.  Setmour.  * 

*  On  the  distinction  between  servants  and  independent  contractors,  and  on  the 
responsibility  for  the  acts  and  omissions  of  the  latter,  see  further :  Blake  v.  Ferris, 
5  N.  Y.  48  (1851)  Hilliard  v.  Richardson,  3  Gray,  349  (1855) ;  Boswell  v.  Ladd,  8  Cal. 
469  (1857);  Storrs  i-.  City  of  Utica,  17  N.  Y  104  (1858);  Hole  v.  Sittingbourue  & 
Sheerness  Ry.  Co.,  6  H.  &  N.  488  (1861);  Pickard  v.  Smith,  10  C.  B.  n.  s.  470 
(1861);    McCafferty  v.   Spuyten  Duyvil  &  Port  Morris  Railroad  Co.,  61   N.  Y.  178 


214  BURNS   V.    POULSOM.  [CHAP.  IL 


BURNS   V.   POULSOM. 
Common  Pleas.     1873. 

[L.  R.  8  C.  P.  563.] 

Action  against  the  defendant  for  an  injuiy  to  the  plaintiff  tlirougli 
the  negligence  of  the  defendant's  servant.^ 

Gully  showed  cause.  Malone,  in  throwing  the  iron  out  of  the  cart, 
was  not  acting  within  the  scope  of  his  employment.  His  duly  com- 
menced only  when  the  iron  rails  had  been  placed  on  the  ground  ;  and, 
in  anything  done  by  him  beyond  taking  them  from  the  ground  to  the 
ship,  and  there  stowing  them,  he  was  a  mere  volunteer.  A  master  is 
not  responsible  for  acts  done  by  his  servant  which  do  not  fall  within 
the  ordinary  scope  of  his  authority.  It  is  only  for  the  negligent  exer- 
cise by  the  servant  of  his  dut}'  to  his  master  that  the  latter  is  liable. 

[Grove,  J.  Where  the  act  is  closely  connected  with  the  employ- 
ment, must  it  not  be  a  question  for  the  jury?  Can  we  say  that  this 
act  of  Malone  was  so  wholly  unconnected  with  the  scope  of  his  employ- 
ment that  it  could  not  have  been  his  duty  to  help  the  carter  to  unload 
the  iron?] 

Tlie  only  question  of  fact  for  the  jury  was  whether  or  not  Malone 
had  been  guilty  of  culpable  negligence. 

[Denman,  J.,  referred  to  AVhatman  v.  Pearson,  Law  Rep.  3  C.  P. 
422,  and  Storey  v.  Ashton,  Law  Rep.  4  Q.  B.  476.] 

[The  following  cases  were  cited,  —  Limpus  v.  London  General  Omni- 
bus Co.,  1  H.  &  C.  526  ;  32  L.  J.  (Ex.)  34  ;  Seymour  u  Greenwood,  7 
H.  &  N.  355  ;  30  L.  J.  (Ex.)  189  ;  and  Page  v.  Defries,  7  B.  «&  S.  137.] 

Crompton,  in  support  of  the  rule.  The  plaintiff  is  entitled  to  a  ver- 
dict, if  there  was  any  evidence  which  could  properly  have  been  sub- 
mitted to  the  jury  that  Malone  was  acting  within  the  scope  of  his 
employment ;  and  that  question  ought  to  have  been  left  to  them. 
[The  following  cases  were  cited,  —  Poulton  v.  London  and  South  Wes- 
tern Railway  Co.,  Law  Rep.  2  Q.  B.  534;  Barwick  v.  English  Joint 
Stock  Bank,"^  Law  Rep.  3  Ex.  259  ;  The  Thetis,  Law  Rep.  2  A.  &  E. 
365  ;  Bay  ley  v.  Manchester,  Sheffield,  and  Lincolnshire  Railway  Co., 
Law  Rep^  7  C.  P.  415  ;  in  error.  Law  Rep.  8  C.  P.  148.] 

[Denman,  J.  Is  it  not  a  question  of  fact  whether  this  was  anything 
more  than  a  slight  deviation  from  the  strict  line  of  Malone's  duty?  I 
think  it  was  held  by  the  Court  of  Queen's  Bench  in  a  recent  case  of 
Woolley  V.  Curling,  not  reported,  that  the  question  whether  or  not  an 
act  was  within  the  scope  of  the  servant's  authoritj'  ought  to  be  sub- 
mitted to  the  juiy.]  Cur.  adv.  vidt. 

(1874) ;  Tarry  v.  Ashton,  1  Q.  B.  D.  314  (1876)  ;  Hughes  v.  Percival,  8  App.  Cas.  443 
(1883);  Circleville  v.  Neuding,  41  Ohio  St.  465  (1885);  Hexanier  v.  Wehb,  101 
N.  Y.  377  (1886)  ;  Norwalk  Gaslight  Co.  v.  Borough  of  Norwalk,  63  Coun.  495,  528- 
529  (1893).  — Ed. 

1  The  reporter's  statement  is  omitted.  —  Ed. 


SECT.  II.]  BUKNS   V.    I'OULSOM.  215 

Tlie  judges  differing  iu  opinion,  the  following  judgments  were 
delivered  :  — 

Denman,  J.  In  tliis  case  which  was  tried  before  the  judge  of  the 
Passage  Court  at  Liverpool,  who  nonsuited  the  plaintiff,  a  rule  was 
obtained  to  set  aside  that  nonsuit,  and  to  enter  a  verdict  for  the  plain- 
tiff for  £30  damages,  if  this  court  sliould  tliinlc  fit. 

It  was  assumed,  upon  the  argument  of  the  rule,  b}'  the  counsel  on 
both  sides,  and  I  tliink  we  are  also  bound  to  assume,  that  this  reserva- 
tion means  tliat  the  plaintiff  is  to  be  entitled  to  the  verdict  for  £30  if 
this  court  should  be  of  opinion  that  there  was  evidence  upon  which 
the  jury  might  not  unreasonably  have  found  for  the  plaintiif.  I  am  of 
opinion  that  lliere  was  such  evidence. 

Tlie  material  facts  proved  at  the  trial  were  as  follows  :  The  de- 
fendant was  a  stevedore  who  was  employed  to  ship  some  iron  rails 
which  were  to  go  by  a  ship  h  ing  in  the  Iluskisson  Dock  at  Liverpool. 
He  had  a  foreman  named  ISLiloiio,  who  on  the  day  in  question  was  act- 
ing for  him  at  the  dock.  Tlie  iron  rails  were  being  unloaded  from  a 
cart  which  belonged  to  one  Wood,  and  was  standing  at  a  small  distance 
from  the  ship  on  board  of  which  the  rails  were  in  course  of  being 
loaded.  The  carter,  in  unloading  the  rails,  was  putting  them  down  on 
one  side  of  the  cart,  when  Malone,  —  for  what  purpose  is  not  stated, 
but,  1  think  it  may  be  inferred,  in  order  to  assist  his  own  operations 
in  some  way,  —  told  him  to  put  them  on  the  other  side,  and,  upon  his 
refusal,  got  Into  the  cart  and  threw  out  some  rails,  one  of  which  injured 
the  plaintiif,  a  passer-by. 

The  only  evidence  in  relation  to  Poulsom's  or  Malone's  duty  in 
respect  of  the  iron  rails  in  question  was  as  follows :  Tlie  second  wit- 
ness, a  warehouseman  in  the  service  of  the  plaintiff's  emplo3"ers,  on  his 
cross-examination,  said:  ''Poulsom  is  a  stevedore.  lie  receives  the 
iron  rails  after  they  are  thrown  out  of  the  cart  on  to  the  ground,  and 
takes  them  to  the  ship."  The  carter  on  his  cross-examination  said: 
*'  It  is  our  dutj'  to  put  the  rails  down  out  of  the  cart  on  the  ground  ; 
and  then  the  stevedore  takes  them  to  the  ship." 

It  was  contended  for  the  defendant  that,  upon  these  facts,  there  was 
no  evidence  upon  which  a  jury  could  have  found  a  verdict  for  the  plain- 
tiff ;  and  upon  this  ground  the  learned  judge  nonsuited  the  plaintiff. 

The  contention  before  us  on  the  part  of  the  defendant  was,  that, 
inasmuch  as  the  duty  of  the  stevedore  did  not  commence,  in  relation 
to  any  particular  portion  of  the  rails  in  question,  until  they  were  on 
the  ground,  it  was  impossible  to  hold  the  defendant  liable  for  the  act  of 
Malone  in  throwing  the  rail  in  question  from  the  cart ;  that  that  act 
could  not  be  within  the  scope  of  his  employment  or  duty,  being  an  act 
done  at  a  period  antecedent  to  that  at  which  his  duty  in  relation  to  the 
iron  commenced,  and  at  a  place  where  he  had  no  business  to  be  med- 
dling with  it  at  all. 

In  m}'  opinion,  this  contention  of  the  defendant  proceeds  upon  too 
narrow  a  view  of  the  duty  or  employment  of  Malone  ;  and  I  think  that 


216  BUENS   V.    POULSOM.  [CHAP.  II. 

tlie  cases  applicable  to  the  subject  establish  tliat,  even  though  in  the 
ordinary  course  of  his  employment,  it  would  not  be  a  part  of  Malone's 
duty  to  assist  in  moving  the  rails  from  the  cart,  it  was  still  a  question 
for  the  jur}',  and  not  for  the  judge,  whether  in  this  particular  case  he 
was  acting  within  the  scope  of  his  employment. 

It  cannot,  1  think,  be  contended  in  this  case  that  the  judge  or  jury 
were  bound  to  hold  that  Malone  was  acting  for  any  purpose  of  his  own, 
as  distinguished  from  his  master's  service,  as  was  the  case  in  Storey  v. 
Ashton,  Law  Rep.  4  Q.  B.  47G,  where  the  carman  through  whose  neg- 
ligence the  plaintiff  was  injured  had  been  induced  by  a  clerk  of  the 
defendant's  to  drive  him  in  a  wrong  direction,  after  business  hours,  on 
business  of  the  clerk's  ;  nor,  as  it  appears  to  me,  if  it  was  a  question 
for  the  jur}',  would  it  be  unreasonable  for  them  to  have  found  that  he 
was  acting  witlun  the  scope  of  his  employment,  inasmuch  as  they  might 
not  unreasonably  have  thought  that  the  act  was  one  done  for  his  mas- 
ter's benefit,  and  with  a  zealous  desire  to  expedite  the  work,  and,  for 
aught  I  know,  in  a  manner  proper  and  even  usual  under  the  circum- 
stances for  a  person  emploj-ed  as  Malone  was  at  the  time. 

In  Joel  V.  Morison,  6  C.  &  P.  501,  which,  though  a  nisi  prius  case, 
is  cited  with  approval  in  many  other  cases  decided  by  the  courts,  — 
Parke,  B.,  says:  "The  master  is  onl}'  liable  where  the  servant  is  act- 
ing in  tlie  course  of  his  employment :  "  but  he  immediately  adds  :  "  If 
he  was  going  out  of  his  way,  against  his  master's  implied  commands, 
when  driving  on  his  master's  business,  he  will  make  his  master  liable." 
And  earlier  in  the  same  summing-up  the  learned  Baron  says  :  "  If  the 
servant,  being  on  his  master's  business,  took  a  detour  to  call  upon  a 
friend,  the  master  will  be  responsible."  And  this  view  of  the  law  is 
entirely  in  accordance  with  the  judgments  in  Whatman  v.  Pearson, 
Law  Kep.  3  C.  P.  422,  cited  for  the  plaintiff,  which  indeed  is  a  stronger 
case,  inasmuch  as  there  the  servant  acted  in  violation  of  his  instructions. 
No  doubt,  cases  ma^'  be  put  in  which  a  servant  may  so  conduct  himself, 
about  goods  of  his  master  with  which  he  is  dealing  as  servant,  as  to 
make  it  clear  that  the  master  is  not  responsible  for  his  negligence  in 
the  course  of  such  conduct.  Storey  v.  Ashton,  Law  Rep.  4  Q.  B.  476, 
mentioned  above,  and  Mitchell  v.  Crassweller,  13  C.  B.  237  ;  22  L.  J. 
(C.  P.)  100,  were  such  cases.  But  can  it  be  said  that,  in  the  present 
case,  it  would  have  been  unreasonable  for  a  jury  to  find  that  the  act  of 
the  foreman  in  getting  into  the  cart  and  throwing  the  iron  down  was 
an  act  bona  fide  and  not  unreasonably  done  in  the  zealous  dis- 
charge of  his  duty  to  his  master,  in  the  course  of  the  business  he  was 
employed  upon  ?  And,  if  they  were  of  that  opinion,  might  they  not 
also  properh'  find  that  he  was  acting  within  the  scope  of  his  employ- 
ment? I  think  the}'  might,  and  therefore  that  this  nonsuit  was  wrong, 
and  that,  by  vii'tue  of  the  understanding  at  the  trial,  the  rule  should  be 
made  absolute  to  enter  the  verdict  for  £30. 

My  Brother  Grove  agrees  with  me  that  in  this  case  there  was  evi' 
dence  for  the  jury,  and  that  the  nonsuit  was  therefore  wrong. 


SECT.  II.  J  BURNS   V.   POULSOM.  217 

Bkett,  J.*  The  question  was  stated  in  argument  on  both  sides  to 
be,  whether  there  was  evidence  that  Malone  was  acting  within  the 
scope  of  his  authority.  If  there  was,  it  was  admitted  bj-  the  defend- 
ant's counsel  that  the  judgment  should  be  for  the  plaintiff.  If  there 
was  not,  it  was  admitted  by  the  plaintiff's  counsel  tliat  the  judgment 
should  be  for  the  defendant. 

The  arguments  raise  the  question,  what  is  the  proper  application  in 
point  of  law  in  this  case  of  the  phrase  or  doctrine  "that  the  servant 
must  be  acting  within  the  scope  of  his  authoritj."  Some  cases  have 
raised  the  question  whether  the  servant  in  what  he  did  was  intending 
to  act  for  his  master  or  for  purposes  of  his  own.  That  does  not  seem 
to  me  to  be  the  point  in  this  case.  Malone  ma}-  be  considered  to  have 
been  intending  to  act  in  performance  of  the  dut\-  delegated  to  him.  In 
this  case  the  question  is  whether  the  time  had  arrived  or  the  circum- 
stances had  arisen  for  doing  anything  which  the  servant  was  employed 
to  do.  Had  his  employment  commenced?  ''The  question,"  says 
Lush,  J,,  in  Storey  v.  Ashton,  Law  Rep.  4  Q.  B.  at  p.  480,  "  in  all 
such  cases  is,  whether  the  servant  was  doing  that  which  the  master 
emplo^-ed  him  to  do."  "  Where  the  servant,  instead  of  doing  that 
which  he  is  employed  to  do,  does  something  which  he  is  not  employed 
to  do  at  all,  the  master  cannot  be  said  to  do  it  by  his  servant : "  per 
Maule,  J.,  in  Mitchell  v.  Crassweller,  13  C.  B.  237,  247 ;  12  L.  J. 
(C.  P.)  100.  "  It  is  not  sufficient  that  the  act  should  be  done  with 
intent  to  benefit  or  intent  to  serve  the  master.  It  must  be  something 
done  in  doing  what  the  master  has  employed  the  servant  to  do  :  "  per 
Blackburn,  J.,  in  Limpus  v.  London  General  Omnibus  Co.,  1  H.  &  C. 
526  ;  32  L.  J.  (Ex.)  34.  In  Whatman  v.  Pearson,  Law  Rep.  3  C.  P. 
422,  the  servant  was  held  to  be  acting  in  the  course  of  his  employ- 
ment, because  he  was  emploved  to  manage  the  horse  and  cart  during 
the  day  :  per  Byles,  J..  Law  Rep.  3  C.  P.  at  p.  425. 

Now,  in  the  present  case,  Brocksop,  who  was  the  warehouseman  of 
Davis  &  Co.,  the  shippers  of  the  iron  rails,  stated  that  the  defendant's 
employment  was  to  receive  the  rails  after  they  were  thrown  out  of  the 
cart  on  to  the  ground,  and  take  them  to  the  ship.  It  was,  therefore, 
obviousl}'  the  business  of  Davis  &  Co.,  by  their  own  servants  or  some 
other  agent  of  theirs,  to  carrj'  the  rails  to  the  quay  and  place  them  on 
it,  i.  e.,  on  to  the  ground  there,  for  the  defendant  to  carry  them  thence 
into  the  ship  and  there  stow  them.  And  it  is  obvious  that  Davis  & 
Co.  employed  Wood,  a  master  carter,  to  carr}'  the  rails  to  the  quay  and 
deliver  them  there.  Strongfellow,  who  was  Wood's  carter,  stated,  "It 
is  our  dut}'  to  put  the  rails  down  out  of  the  cart  on  the  ground,  and 
then  the  stevedore  takes  them  to  the  ship."  The  joint  employers  of 
Wood  and  the  defendant,  therefore,  limit  the  commencement  of  the 
defendant's  employment  to  a  time  after  the  rails  were  on  the  ground. 
And   the  person  employed  on  the  previous  and  antecedent  operation, 

1  After  statintr  the  case. —  Ed. 


218  ROUNDS   V.    DELAWARE,   ETC.    RAILROAD   CO.         [CHAP.  IL 

viz.,  that  of  cnrning  the  rails  fi-om  tlie  wareliouse  and  tlelivoring  them 
out  of  tlie  cart  on  to  tlie  quay,  equally  limits  the  conimencenient  of  the 
defendant's  employment  to  the  time  after  the  rails  are  on  the  ground. 

Now,  what  the  defendant  was  employed  to  do,  what  he  might  accord- 
ing to  that  employment  have  done  himself,  he  employed  Mtilone  to  do. 
He  employed  Malone  to  carry  the  iron  rails,  after  they  were  on  the 
ground  at  the  quay,  thence  into  the  ship,  and  there  stow  them.  For 
anything  done  by  Malone  in  canying  or  stowing  the  rails,  or  anything 
done  by  Malone  with  the  rails  after  they  were  on  the  ground,  with 
intent  to  carr}'  out  his  orders  to  take  them  into  the  ship  and  stow  tliem 
there,  the  defendant  would  have  been  liable.  But  it  seems  to  me  that 
the  defendant  had  not  employed  Malone  to  do  anything  with  regard  to 
the  rails  before  they  were  on  the  ground.  The  defendant  himself  was 
not  employed  to  do  anything  with  the  rails  before  they  were  on  the 
ground.  Anything  voluntarily  done  by  Malone,  therefore,  before  the 
rails  were  on  the  ground,  though  done  wath  intent  to  serve  the  defend- 
ant, was  not  a  thing  done  which  the  defendant  had  employed  Malone 
to  do.  The  evidence  which  described  and  limited  the  employment  of 
the  defendant  and  of  Malone  was  given  on  behalf  of  the  plaintiff,  and 
there  was  no  evidence  to  vary  or  render  doubtful  the  limitation  of  the 
commencement  of  that  employment.  There  was  no  question  which  the 
jury  would  have  been  entitled  to  entertain  about  it.  The  judge  was,  in 
my  opinion,  bound  to  sa}'  that  what  was  done  b}'  Malone  was  done 
before  his  employment  by  the  defendant  was  called  into  pla^',  that  is  to 
sa}-,  it  was  a  thing  which  the  defendant  had  not  emploj'ed  Malone 
to  do. 

I  am  of  opinion,  therefore,  that  the  learned  judge  was  right  in  non- 
suiting the  plaintiff,  and  that  this  rule  ought  to  be  discharged. 

The  majority  of  the  court,  however,  being  of  a  different  opinion,  the 
rule  will  be  made  absolute  to  set  aside  the  nonsuit  and  enter  a  verdict 
for  the  plaintifT  for  £30,  the  damages  agreed  upon  at  the  trial. 

Mule  absolute. 


BOUNDS,    BY    Guardian,    Respondent,    v.    THE     DELAWARE, 
LACKAWANNA,  AND  WESTERN  RAILROAD  COMPANY, 

Appellant. 

Court  of  Appeals  of  New  York.     1876 
[64  N.  Y.  129.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court  in 
the  third  judicial  department,  in  favor  of  plaintiff,  entered  upon  an 
order  denying  a  motion  for  a  new  trial  and  directing  judgment  on  a 
verdict.     ^Reported  below,  3  Hun,  329  ;  5  T.  &  C.  475.) 

This  action  was  brought  to  recover  damages  for  injuries  sustained  by 


SECT.  II.]  ROUNDS   V.    DKLAWARE,    ETC.    RAILROAD    CO.  219 

plaintiff  in  consequence  of  being  kicJied  off  of  one  of  defendant's  l)ag- 
gage  cars  by  the  baggagouian. 

The  transaction  resulting  in  the  injury  occurred  at  Norwich,  May  3, 
1872.  The  defendant  operated  a  broad-gauge  railroad  from  Bing- 
hamton  to  Norwich,  and  a  narrow-gauge  road  from  Norwich  to  Utica. 
The  passenger  train  from  Binghamton  on  this  occasion  as  usual  ran 
to  the  depot  at  Norwich  and  transferred  the  passengers  and  freight 
to  the  Utica  train  and  then  backed  south  on  a  switch,  a  distance  of 
about  sixty  rods,  to  the  round-house,  to  make  up  the  new  train  which 
was  to  run  back  to  Binghamton.  The  train  consisted  of  the  engine,  an 
express  car,  a  baggage  and  smoking  car,  one  car  divided  into  two  com* 
partments,  and  one  passenger  car.  The  conductor  of  the  train  got  off 
with  the  passengers  at  the  depot  and  left  it  in  charge  of  the  baggage- 
man to  run  back  on  the  switch  and  make  up  the  new  train.  While  the 
train  was  unloading  and  transferring  the  passengers  at  the  depot  the 
plaintiff,  a  bo}'  twelve  years  old,  living  near  the  depot,  got  on  the  plat- 
form of  the  baggage  and  smoking  car,  at  the  rear  end,  to  ride  down  to 
the  round-house.  A  quantity  of  wood  was  piled  at  one  point  along 
near  the  west  side  of  the  track  for  a  distance  of  over  100  feet.  While 
the  train  was  backing  down  the  track,  and  when  it  arrived  at  the  wood 
pile,  the  baggageman  in  charge  of  the  train  discovered  the  plaintiff  on 
the  platform  and  ordered  him  off.  According  to  the  plaintiff's  testi- 
mony, he  replied:  ''  I  can't,  the  wood  is  right  here;  I  want  you  to 
help  me ; "  and  thereupon  the  baggageman  kicked  him  off.  He  fell 
against  the  wood  and  rolled  under  the  car,  the  wheel  of  which  passed 
over  and  crushed  his  leg.  A  printed  notice  was  posted  up  in  the  bag- 
gage car  and  another  one  near  where  the  plaintiff  was  standing  on  the 
platform,  as  follows :  "  No  person  will  be  allowed  to  ride  on  this  bag- 
gage car  except  the  regular  train  men  employed  thereon.  Conductor 
and  baggageman  must  see  this  order  strictly  enforced.''  Another 
printed  notice  was  contained  in  the  posted  time  cards  as  follows : 
"  Train  baggagemen  must  not  permit  an}-  person  to  ride  in  the  bag- 
gage car,  except  the  conductor  and  news  agent  connected  with  the 
train.  Conductor  and  baggageman  will  be  held  alike  accountable  for  a 
rigid  enforcement  of  this  rule." 

At  the  close  of  the  plaintiff's  evidence  the  defendant's  counsel  moved 
for  a  nonsuit  on  the  grounds:  1.  The  plaintiff  was  a  trespas.ser,  or 
wrongfully  on  tlie  cars  of  the  defendant,  and  is  not  entitled  to  recover. 

2.  The  plaintiff,  b}'  his  own  negligence,  contributed  to  the  accident. 

3.  Upon  the  evidence  the  defendant  was  not  guilt}'  of  any  negligence 
or  wrongful  act  in  reference  to  the  plaintiff;  that  the  acts  of  Gow  (bag- 
gageman), which  caused  the  injur}-,  were  not  authorized  by  the  defend- 
ant, but  were  a  wilful  and  wanton  assault  by  Gow  upon  the  plaintiff, 
and  for  these  acts  and  their  consequences  the  defendant  is  not  respon- 
sible to  the  plaintiff.  The  court  denied  the  motion  and  ruled  that  it 
was  a  question  for  the  jury  whether  the  baggageman  was  there  acting 
within  the  authority  of  the  company  in  putting  the  boy  off,  and  whether 


220  ROUNDS   V.   DELAWARE,    ETC.    KAILROAD   CO.         [CHAP.  II. 

he  acted  wilfully  and  wrongfully  ;  to  which  the  defendant  excepted. 
After  the  defendant  had  given  evidence  contradicting  the  plaintiff's 
testimony,  and  at  the  close  of  the  case,  the  defendant's  counsel  renewed 
his  motion  for  a  nonsuit  on  the  same  grounds,  and  also  on  the  ground 
that  no  right  of  action  is  made  against  the  defendant,  and  that  the  evL 
dence  does  not  warrant  a  submission  of  any  question  of  fact  to  the  jury 
which  could  authorize  a  recovery.  The  motion  was  denied  and  the  de- 
fendant excepted.  The  court  then  submitted  the  following  questions  to 
the  jury,  to  which  the  defendant  also  excepted:  1.  Did  Gow  put  the 
boy  off  the  cars  ?  2.  Was  he  acting  within  the  authority  given  him  by 
the  defendant?  3.  Was  lie  acting  maliciously  and  in  excess  of  his 
authority  ? 

The  court  then  charged  the  jury,  among  other  things,  that  the  plain- 
tiff was  a  trespasser  on  the  car,  but  if  the  baggageman,  nevertheless,  in 
the  discliarge  of  his  dut}^  pushed  him  off  the  train  in  an  improper  man- 
ner, and  at  a  dangerous  place,  tlie  defendant  was  liable  ;  to  which  the 
defendant  excepted.  The  coiu't  also  charged  the  jur}-  that  if  the  bag- 
gageman pushed  the  bo}'  off  the  train,  and  in  doing  so  was  acting  as 
the  employee  of  the  defendant  in  good  faith  in  the  discharge  of  a  duty 
he  owed  the  compan}',  the  defendant  would  be  liable  for  the  careless 
and  negligent  discharge  of  his  duty  ;  but  if  he  was  acting  wilfully  and 
maliciously  toward  the  plaintiff,  outside  of  and  in  excess  of  his  dut}', 
then  the  baggageman  alone  would  be  responsible  in  law  for  the  conse- 
quences ;  to  which  the  defendant  excepted  and  requested  the  court  to 
modify  the  charge  or  to  charge  that  defendant  was  not  liable  if  the  bag- 
gageman acted  wilfully  and  wantonl}'  without  authority  from  defendant. 
This  the  court  refused. 

Fi^ancis  Kernan,  for  the  appellant. 

E.  H.  Prindle^  for  the  respondent. 

Andrews,  J.  There  is,  at  this  time,  but  little  conflict  of  judicial 
opinion  in  respect  to  the  general  rule  by  which  the  liabilit}'  of  a  master 
for  the  misconduct  of  his  servant,  resulting  in  injury  to  third  persons, 
is  to  be  tested  and  ascertained.  In  Higgins  v.  The  Watervliet  Turn- 
pike Company,  46  N.  Y.  23,  this  subject  was  considered  by  this  court, 
and  the  rule  was  declared  to  be,  that  the  master  was  responsible, 
civiliter,  for  the  wrongful  act  of  the  servant  causing  injur}'  to  a  third 
person,  whether  the  act  was  one  of  negligence  or  positive  misfeasance, 
provided  the  servant  was  at  the  time  acting  for  the  master,  and  within 
the  scope  of  the  business  intrusted  to  him.  The  master  is  liable  only 
for  the  authorized  acts  of  the  servant,  and  the  root  of  his  liability  for 
the  servant's  acts  is  his  consent,  express  or  implied,  thereto.  When  the 
master  is  to  be  considered  as  having  authorized  the  wrongful  act  of  the 
servant,  so  as  to  make  him  liable  for  his  misconduct,  is  the  point  of 
difficulty.  Where  authority  is  conferred  to  act  for  another,  without 
special  limitation,  it  carries  with  it,  b}'  implication,  anthorit}'  to  do  all 
things  necessar}'  to  its  execution  ;  and  when  it  involves  the  exercise  of 
the  discretion  of  the  servant,  or  the  use  of  force  towards  or  against 


SECT.  II.]         ROUNDS   V.    DELAWARE,    ETC.    RAILROAD   CO.  221 

another,  the  use  of  such  discretion  or  force  is  a  part  of  the  thing 
authorized,  and  when  exercised  becomes,  as  to  third  persons,  the  dis- 
cretion and  act  of  tlie  master,  and  this,  although  the  servant  departed 
from  the  private  instructions  of  the  master,  provided  he  was  engaged 
at  the  time  in  doing  his  master's  business,  and  was  acting  within  the 
general  scope  of  his  employment.  It  is  not  the  test  of  the  master's 
liabilit}-  for  the  wrongful  act  of  the  servant,  from  which  injury  to  a 
third  person  has  resulted,  that  he  expi'essly  authorized  the  particular 
act  and  conduct  which  occasioned  it.  In  most  cases  where  the  master 
has  been  held  liable  for  the  negligent  or  tortious  act  of  the  servant,  the 
servant  acted  not  only  without  express  authority  to  do  the  wrong,  but 
in  violation  of  his  dut}'  to  the  master. 

It  is,  in  general,  sufficient  to  make  the  master  responsible  that  he 
gave  to  the  servant  an  authority,  or  made  it  his  dut}-  to  act  in  respect 
to  the  business  in  which  he  was  engaged  when  the  wrong  was  com- 
mitted, and  that  the  act  complained  of  was  done  in  the  course  of  his 
employment.  The  master  in  that  case  will  be  deemed  to  have  consented 
to  and  authorized  the  act  of  the  servant,  and  he  will  not  be  excused 
from  liability,  although  the  servant  abused  his  authority,  or  was  reck- 
less in  the  performance  of  his  duty,  or  inflicted  an  unnecessary  injury 
in  executing  his  master's  orders.  The  master  who  puts  the  servant  in 
a  place  of  trust  or  responsibility,  or  commits  to  him  the  management  of 
his  business  or  the  care  of  his  property,  is  justly  held  responsil)le  when 
the  servant,  through  lack  of  judgment  or  discretion,  or  from  infirmity 
of  temper,  or  under  the  inlluence  of  passion  aroused  by  the  circum- 
stances and  the  occasion,  goes  beyond  the  strict  line  of  his  duty  or 
authority  and  inflicts  an  unjustifiable  injur}-  upon  another.  But  it  is 
said  that  the  master  is  not  responsible  for  the  wilful  act  of  the  servant. 
This  is  the  language  of  some  of  the  cases,  and  it  becomes  necessary  to 
ascertain  its  meaning  when  used  in  defining  the  master's  responsibility. 

The  case  of  McManus  v.  Crickett,  1  East,  106,  turned  upon  the  form 
of  the  action  and  the  distinction  between  trespass  and  case,  but  Lord 
Kenyon,  in  pronouncing  the  judgment  of  the  court,  said  :  "  Where  a 
servant  quits  sight  of  the  object  for  which  he  was  employed,  and,  with- 
out having  in  view  his  master's  orders,  pursues  that  which  his  own 
malice  suggests,  his  master  will  not  be  liable  for  such  acts."  This 
language  was  cited  with  approval  in  Wright  v.  Wilcox,  19  Wend.  343, 
and  the  master  was  held  not  to  be  responsible  where  the  servant,  in 
driving  his  master's  wagon  along  the  highway,  wilfully  whipped  up  his 
horses  while  the  plaintiff's  son,  a  3'oung  lad,  was  standing  between  the 
front  and  back  wheels,  attempting,  with  the  implied  permission  of  the 
servant,  to  get  into  the  wagon,  in  consequence  of  which  the  boy  was 
thrown  down,  run  over,  and  injured.  The  servant  was  cautioned  bj-  a 
bystander  that  if  he  did  not  stop  he  would  kill  the  bo}'.  The  court,  in 
the  opinion  delivered,  assumed  that  the  evidence  showed  that  the  ser- 
vant w^iipped  up  the  horses  with  a  wilful  design  to  throw  the  bo)'  off. 
The  act  of  the  servant  was  imminently  dangerous,  and  it  might  reason- 


222  KOUNDS   V.   DELAWARE,    ETC.    RAILROAD    CO.  [CHAP.  IL 

ably  be  inferred  from  the  evidence  tliat  he  designed  the  injury  which 
resulted  from  it.  "The  law,"  said  Cowen,  J.,  "holds  such  a  wilful 
act  a  departure  from  the  master's  business."  So  in  Vanderbilt  v.  The 
Richmond  Turnpike  Company,  2  Comst.,  479,  the  master  of  the  de- 
fendant's boat  intentionally  ran  into  the  boat  of  the  plaintiff,  and  the 
court  held  that  this  was  a  wilful  trespass  of  the  master  for  which  the 
defendant  was  not  liable.  In  Lyons  v.  Martin,  8  Ad.  &  El.  512,  it  was 
held  that  where  a  servant  merely  authorized  to  distrain  cattle  damage- 
feasant,  drives  cattle  from  the  highway  into  his  master's  close,  and 
there  distrains  them,  the  master  is  not  liable.  In  Mali  v.  Lord,  39  N. 
Y,,  381,  the  act  complained  of  was  an  illegal  imprisonment  of  the 
plaintiff  b}'  the  servant  of  the  defendant,  and  the  court  held  that  the 
authority  to  do  the  act  could  not  be  implied  from  the  general  employ- 
ment of  the  servant.  The  imprisonment,  assuming  that  the  suspicion 
upon  which  it  was  made  was  well  founded,  was  illegal.  The  master 
could  not  lawfully  have  detained  the  plaintiff  if  he  had  been  present, 
and  the  court  were  of  the  opinion  that  the  servant  could  not  be  said  to 
be  engaged  in  his  master's  business  when  he  assumed  to  do  what  the 
master  could  not  have  done  himself.  See,  also,  Bolingbroke  v.  The 
Local  Board,  etc.,  L.  R.  9  C.  P.  575.  It  is  quite  useless  to  attempt  to 
reconcile  all  the  cases.  The  discrepancy  between  them  arises  not  so 
much  from  a  difference  of  opinion  as  to  the  rule  of  law  on  the  subject 
as  from  its  application  to  the  facts  of  a  given  case. 

It  seems  to  be  clear  enough  from  the  cases  in  this  State  that  the  act 
of  the  servant  causing  actionable  injur}'  to  a  third  person  does  not  sub- 
ject the  master  to  civil  responsibility  in  all  cases  where  it  appears  that 
the  servant  was  at  the  time  in  the  use  of  his  master's  property-,  or  be- 
cause the  act,  in  some  general  sense,  was  done  while  he  was  doing  his 
master's  business,  irrespective  of  the  real  nature  and  motive  of  the 
transaction.  On  the  other  hand,  the  master  is  not  exempt  from  respon- 
sibility in  all  cases  on  showing  that  the  servant,  without  express 
authority,  designed  to  do  the  act  or  the  injury  complained  of.  If  he  is 
authorized  to  use  force  against  another  when  necessary  in  executing 
his  master's  orders,  the  master  commits  it  to  him  to  decide  what  de- 
gree of  force  he  shall  use  ;  and  if,  through  misjudgment  or  violence  of 
temper,  he  goes  beyond  the  necessity  of  the  occasion,  and  gives  a  right 
of  action  to  another,  he  cannot,  as  to  third  persons,  be  said  to  have 
been  acting  without  the  line  of  his  duty,  or  to  have  departed  from  his 
master's  business.  If,  however,  the  servant,  under  guise  and  cover  of 
executing  his  master's  orders,  and  exercising  the  authority-  conferred 
upon  him,  wilfully  and  designedly,  for  the  purpose  of  accomplishing  his 
own  independent  malicious  or  wicked  purposes,  does  an  injur}-  to  an- 
other, then  the  master  is  not  liable.  The  relation  of  master  and  ser- 
vant, as  to  that  transaction,  does  not  exist  between  them.  It  is  a 
wilful  and  wanton  wrong  and  trespass,  for  which  the  master  cannot  be 
held  responsible.  And  when  it  is  said  that  the  master  is  not  respon- 
sible for  the  wilful  wrong  of  the  servant,  the  language  is  to  be  under- 


SECT.   II.]  ItOUNDS    V.    DELAWARE,    ETC.    KAILHOAL)    CO.  223 

stood  a.s  referring  to  an  act  of  po.sitive  and  designed  injnry,  not  done 
with  a  view  to  the  master's  service,  or  for  the  purpose  of  executing  his 
orders.  Jn  this  view,  the  judge  at  tlie  trial  correetl}'  refused  to  qualify 
his  charge,  or  to  charge  tliat  it  was  sufficient  to  exempt  the  defendant 
from  liability  that  the  act  of  the  brakeman  in  putting  the  plaintiff  olf 
the  car  was  wilful.  He  had  ahead}-  chaiged  that  if  the  brakeman  acted 
"  wilfully  an'l  maliciously  towards  the  plaintiff,  outside  of  and  in  excess 
of  liis  duty,"  in  putting  him  off  tlie  car,  the  defendant  was  not  liable. 
If  tlte  counsel  intended  to  claim  that  the  defendant  was  exempt  from 
resi)on.sibility  if  the  brakeman  acted  wilfully,  although  without  malice, 
the  i)oint  was  not  well  taken.  That  the  brakeman  designed  to  put  the 
plaintiff  off  the  car  was  not  disputed,  and  this  was  consistent  with  the 
authority  and  duty  intrusted  to  him.  But  a  wilful  act  wdiich  will  exempt 
a  master  from  liability  for  the  tort  of  his  servant,  must  be  done  outside 
of  his  duty  and  his  masters  business.  The  chaige  was,  therefore, 
strictly  correct,  and  the  exception  was  not  well  taken. 

Neither  was  the  defendant  entitled  to  have  the  court  rule,  as  matter 
of  law,  that,  upon  the  circumstances  as  shown  by  the  evidence  on  the 
part  of  the  plaintiff,  the  defendant  was  not  responsible.  It  is  conceded 
that  the  removal  of  the  plaintiff  from  the  car  was  within  the  scope  of 
the  authority  conferred  upon  the  baggageman.  The  plaintiff  had  no 
right  to  be  there.  He  was  not  a  passenger  or  servant,  and  had  no 
express  or  implied  permission  to  be  upon  the  car.  The  brakeman, 
in  kicking  the  boy  from  the  platform,  acted  violently  and  unreasonably^, 
and  to  do  tb^s  while  the  car  was  in  motion,  and  when  the  space  between 
it  and  the  wood-pile  was  so  small,  was  dangerous  in  the  extreme.  But 
the  court  could  not  say  from  the  evidence  that  the  brakeman  was  acting 
outside  of  and  without  regard  to  his  employment,  or  designed  to  do  the 
injury  which  resulted,  or  that  the  act  was  wilful  within  the  rule  we  have 
stated.  If  the  master,  when  sued  for  an  injury  resulting  from  the 
tortious  act  of  his  servant  while  apparentl}-  engaged  in  executing  his 
orders,  claims  exemption  upon  the  ground  that  the  servant  was,  in  fact, 
pursuing  his  own  purposes,  without  reference  to  his  master's  business, 
and  was  acting  maliciously  and  wilfulh-,  it  must,  ordinarilv,  be  left  to 
the  jury  to  determine  this  issue  upon  a  consideration  of  all  the  facts 
and  circumstances  proved.  See  Jackson  v.  The  Second  Ave.  R.  R. 
Co.,  47  N.  Y.  274.  There  may  be  cases  where  this  rule  does  not  ap- 
ply, and  where  the  court  would  be  justified  in  taking  the  case  from  the 
jury ;  but  where  different  inferences  may  be  drawn  from  the  facts 
proved,  and  when,  in  one  view,  they  may  be  consistent  with  the  liability 
of  the  master,  the  case  must  be  left  to  the  jury.  The  fact  that  the 
plaintiff  was  a  trespasser  on  the  cars  is  not  a  defence.  The  lad  did  not 
forfeit  his  life,  or  subject  himself  to  the  loss  of  his  limbs,  because  he 
was  wrongfully  on  the  car.  The  defendant  owed  him  no  duty  of  care 
by  reason  of  any  special  relation  assumed  or  existing  between  the  com- 
pany and  him,  but  he  was  entitled  to  be  protected  against  unnecessary 
injury  b}'  the  defendant  or  its  servants  in  exercising  the  right  of  remov- 


224  PHELON    V.    STILES.  [CHAP.  II. 

Ing  him,  and  especially  from  the  unnecessary  and  unjustifiable  act  of 
the  brakeman  by  which  his  life  was  put  in  peril,  and  which  resulted  in 
his  losing  his  limb.  Sanford  v.  Eighth  Ave.  R.  R.  Co.,  23  N.  Y.  343  ; 
Lovett  V.  Salem,  etc.,  R.  R.  Co.,  9  Allen,  557;  Holmes  v.  Wakefield, 
12  id.  580. 

No  error  of  law  was  committed  on  the  trial,  and  the  judgment  of  the 
General  Term  should  be  affirmed,  with  costs. 

All  concur.  Judy  meat  affirmed. 


PHELON   AND   Wife   v.   STILES. 
ELLEN    PHELON   v.  STILES. 

Supreme  Court  of  Connecticut.     1876. 

[43  Conn.  426.] 

Actions  of  trespass  on  the  case,  for  injuries  from  the  negligent  acts 
of  the  servant  of  the  defendant ;  brought  to  the  Superior  Court  in 
Hartford  Count}-.  The  two  cases  involved  the  same  facts  and  were 
tried  together.     The  court  made  the  following  finding  of  facts  :  — 

On  the  first  day  of  November,  1872,  Stiles  was,  and  had  for  a  long 
time  been,  engaged  in  selling  flour  and  feed  in  Suffield.  He  then  had, 
and  for  more  than  a  year  before  had  had,  in  his  employ  one  George  H. 
Babcock,  whose  principal  employment  was  to  deliver  the  goods  so  sold 
by  Stiles  to  his  customers.  On  that  da}',  in  the  afternoon,  Babcock 
took  a  load  of  twenty  bags  of  flour  and  six  of  bran,  the  former  to  be 
delivered  at  a  Mr.  King's  and  the  latter  at  a  Mr.  Smith's.  Smith 
lived  on  a  side  road  branching  off  from  the  road  leading  to  King's, 
and  when  Babcock  came  to  this  side  road  he  took  off  from  his  load  the 
bags  destined  for  Smith's  and  piled  them  up  on  the  side  of  the  road 
within  the  limits  of  the  highway,  and  left  them  there  while  he  went  on 
to  King's  with  the  remainder.  While  these  bags  were  so  remaining 
there  Mrs.  Samuel  C.  Phelon  and  Mrs.  Ellen  Phelon  were  driving  along 
the  road,  and  their  horse  being  frightened  at  the  bags  ran  away  and 
threw  them  both  out  and  injured  them. 

•  I  find  that  the  bags  so  left  were  an  object  calculated  to  frighten 
horses  of  ordinaiy  gentleness;  that  the  horse  driven  b}'  the  plaintiffs 
was  of  ordinal'}'  gentleness  ;  and  that  the  plaintiffs  were  not  guilty  of 
any  negligence  which  contributed  to  the  injury. 

I  find  that  Babcock  placed  the  bags  in  the  highway  without  the 
knowledge  or  express  authority  of  the  defendant,  and  for  the  purpose 
of  so  shortening  the  time  to  be  occupied  by  him  in  delivering  the  goods 
as  to  enable  him  to  return  to  Suffield  in  time  to  take  a  train  for  Hart- 
ford on  the  same  day  on  his  own  private  business. 

If  the  defendant  was  liable  to  pay  the  damages  so  happening  to  the 
plaintiffs,  I  assess  the  damages  at  the  sum  of  three  hundred  dollars  in 


SECT.  II.]  PHELON    V.    STILES.  225 

each  case,  and  I  reserve  for  the  advice  of  the  Supreme  Court  the 
question  wiiether  Stiles  is  liable  for  the  damages  so  caused  by  the  acts 
of  Babcock. 

(\  E.  PerMna  and  J.  W.  Johnson,  for  the  plaintiffs. 

W.  C.  Case  and  S.  A.   York,  for  the  defendant. 

Park,  C  J.  The  same  principles  of  law  appl}-  to  both  of  these 
cases,  and  therefoi'e  they  will  be  considered  together. 

The  defendant  claims  that  the  court  below  has  not  found  that  Bab- 
cock was  the  servant  of  the  defendant.  We  think  there  is  no  founda- 
tion for  this  claim.  We  construe  the  phrase,  "  had  in  his  employ  one 
George  H.  Babcock,"  is  meaning  that  Babcock  was  in  the  emplo}'  of 
the  defendant  as  a  hired  servant. 

The  principal  question  in  the  case  is,  whether  Babcock  in  deposit- 
ing the  bags  of  bran  intended  for  INIr.  Smith  by  the  side  of  the  highway, 
and  leaving  them  there  until  his  return  from  Mr.  King's,  where  he 
went  to  deliver  the  bags  of  flour,  was  engaged  in  the  business  of  the 
defendant  in  the  the  regular  course  of  his  employment. 

The  defendant  was  a  flour  and  feed  merchant,  and  it  was  his  practice 
to  deliver  his  merchandise  at  the  residence  of  his  customers.  Babcock 
was  employed  to  make  delivery,  and,  on  the  occasion  in  question, 
started  with  his  bags  of  flour  and  bran,  sold  by  the  defendant  to  King 
and  Smith,  to  deliver  them  to  these  parties  in  the  regular  course  of 
his  employment. 

The  question  then  is,  was  Babcock  engaged  in  the  defendant's 
business  while  depositing  and  leaving  the  bags  by  the  side  of  the 
road  ? 

The  defendant  claims  that  those  acts  were  performed  by  him  on  his 
own  account ;  that  he  was  desirous  to  take  a  train  for  Hartford  later  in 
the  dav,  on  his  own  private  business,  and  that  he  left  the  bags  by  the 
roadside  to  enable  him  to  make  his  deliver}-  more  rapidh'  and  return 
earlier,  so  that  he  could  accomplish  his  purpose. 

But  what  business  of  his  own  was  he  then  doing?  He  was  not  then 
attending  to  private  business  in  going  to  Hartford.  That  was  to  be 
undertaken  later  in  the  day.  He  left  the  bags  to  expedite  the  deliver}'. 
Did  it  make  the  business  his  own  because  he  despatched  it  more 
speedily  than  it  would  naturally  have  been  done?  He  was  sent  by  the 
defendant  to  deliver  the  flour  and  bran.  Did  he  do  anything  else  than 
deliver  them?  His  whole  object  in  leaving  the  bran  by  the  side  of  the 
road  was  to  gain  time.  Suppose  he  had  driven  the  horse  with  such 
speed  as  amounted  to  carelessness  in  order  to  gain  time,  and  had 
injured  a  person  by  so  doing,  would  he  be  transacting  his  own  business 
while  driving  so  rapidly,  so  that  the  defendant  would  not  be  hable? 
Suppose  he  had  left  the  bran  out  of  consideration  for  his  horse,  and  the 
same  result  had  followed,  would  the  defendant  be  excused?  He  was 
under  the  necessity  of  taking  the  bran  to  Mr.  King's,  or  of  leaving  it  by 
the  side  of  the  road  until  his  return  ;  suppose  he  had  taken  the  latter 
course  without  any  special  object  in  view,  would  it  make  any  difference 

15 


226  CASWELL    V.   CROSS.  [CHAP.  IL 

in  the  case?  We  think  all  that  can  be  said  of  the  matter  is,  that 
Babcock  performed  the  defendant's  business  in  delivering  the  bran  in  a 
shorter  time  than  he  would  have  done  had  he  not  intended  to  go  to 
Hartford  later  in  the  day  ;  and  certainly  the  rapidity  with  which  the 
business  was  transacted  cannot  operate  to  excuse  the  defendant. 

Tlie  defendant  further  claims  that  the  bags,  left  as  they  were  bj-  the 
side  of  the  road,  became  a  public  nuisance,  and  that  the  leaving  of 
them  was  therefore  a  public  offence,  and  that  he  cannot  be  liable  for 
such  an  act  of  his  servant.  But  Babcock  did  not  intend  to  create  a 
nuisance.  The  case  does  not  find  that  he  intended  any  harm.  All 
that  can  be  said  is,  that  he  negligently  left  them  while  performing  the 
business  of  the  defendant,  and  for  such  negligence  the  defendant  is  of 
course  liable.     We  think  there  is  nothing  in  this  claim. 

We  advise  judgment  for  the  plaintiffs. 

In  this  opinion  the  other  judges  concurred ;  except  Foster,  J.,  who 
dissented. 


CASWELL  V.  CROSS. 
Supreme  Judicial  Court  of  Massachusetts.     1876. 

[120  Mass.  545.] 

Tort  for  an  arrest  and  false  imprisonment.  The  case  was  submitted 
to  the  Superior  Court,  and,  after  judgment  for  the  defendant,  to  this 
court  on  appeal,  on  an  agreed  statement  of  facts,  in  substance  as 
follows :  — 

The  defendant  emplo3'ed  J.  E.  Cupples  &  Co.  to  collect  a  bill  in  his 
favor  against  the  plaintiff,  amounting  to  twelve  dollars  and  accrued 
interest.  Cupples  &  Co.  advertise  and  hold  themselves  out  to  the 
public  as  a  "  Law  and  Collection  Bureau,"  and  have  their  place  of 
business  on  School  Street,  in  Boston.  They  are  not  regularly  admitted 
attorneys,  but  they  sue  out  writs  upon  claims  placed  in  their  hands  for 
collection,  sometimes  appearing  in  court  as  the  attorneys  of  record  in 
their  cases,  and  sometimes  using  the  names  of  regularly  admitted  at- 
torneys. 

In  all  courts  in  the  vicinity  of  Boston,  where  they  are  permitted  to 
do  so,  they  enter  their  own  appearance  only,  and  always  retain  the 
exclusive  control  and  management  of  their  cases  in  and  out  of  court, 
whenever  an  attorney's  name  is  entered  of  record.  They  use  the  name 
of  a  regularly  admitted  attorney  for  the  mere  purpose  of  complying  with 
the  rules  of  court.  In  addition  to  appearing  in  court  in  their  own  cases, 
they  examine  poor  debtors  arrested  by  them,  and  do  the  general  busi- 
ness of  regular  attorneys,  in  making  writs  and  declarations,  levying  and 
collecting  executions,  &c. 


SECT.  II.]  CASWELL    V.    CROSS.  227 

Upon  the  claim  placed  in  their  hands  b}-  the  defendant  they  brought 
an  action  against  the  plaintiff  in  the  Municipal  Court  of  Boston,  using 
the  name  of  a  regularly  admitted  attorney,  and  recovered  judgment  on 
September  1,  1874,  on  default,  for  the  amount  of  $1.").12  debt  and 
$<S.I'J  costs,  and  took  out  an  execution  in  favor  of  the  plaintiff  on  said 
judgment,  which  execution  was  duly  returned  in  no  part  satisfied. 

Cu[)ples  &  Co.  then  brought  another  action  upon  said  judgment  in 
the  I'olice  Court  of  Charlestown,  and  recovered  a  new  judgment,  in- 
cluding the  full  amount  of  the  prior  judgment  and  costs.  They  then 
took  out  an  execution  on  this  last  judgment,  with  the  usual  diivctions 
for  the  arrest  of  the  defendant  in  said  action  ;  and  one  Perkins,  who 
was  a  clerk  in  the  employ  of  Cupplcs  &  Co.,  and  who  had  the  general 
management  of  their  cases  in  and  out  of  court,  made  an  affidavit  as 
required  b}-  law  for  the  arrest  of  poor  debtors,  which  affidavit  was  duly 
attached  to  said  execution.  Perkins  then  gave  said  execution  to  an  offi- 
cer with  instructions  to  arrest  the  judgment  debtor.  The  officer  arrested 
him  ;  he  recognized  with  suret3'  to  take  the  oath  for  the  relief  of  poor 
debtors,  gave  the  required  notice,  submitted  himself  to  be  examined, 
was  examined  by  Perkins  in  behalf  of  the  judgment  creditors,  and  was 
finalh'  discharged  from  arrest,  upon  taking  said  oath. 

The  judgment  upon  which  execution  was  issued,  and  upon  which 
the  plaintiff  was  thus  arrested,  was  for  less  than  twenty  dollars,  exclud- 
ing the  costs  in  that  and  the  prior  action  ;  but  this  fact  was  unknown 
to  the  plaintiff  or  his  attorney  until  after  the  oath  had  been  adminis- 
tered to  him,  — both  judgments  having  been  upon  default  and  without 
his  actual  knowledge. 

The  defendant  gave  Cupples  &  Co.  no  special  instruction  as  to  the 
manner  in  which  they  were  to  proceed,  or  the  proceedings  they  were  to 
adopt  in  collecting  said  bill.  He  called  upon  them  in  answer  to  their 
advertising  card  sent  to  him,  a  copy  of  which  is  printed  in  the  margin.'' 
He  had  no  knowledge  of  the  manner  in  which  they  collected  bills  and 
conducted  their  business,  except  such  as  he  derived  from  this  advertise- 
ment, and  he  had  no  actual  knowledge  of  an\-  of  the  proceedings  of 
Cupples  &  Co.  and  Perkins,  in  trying  to  collect  his  claims  against  the 
plaintiff,  or  in  making  said  affidavit,  or  in  causing  the  plaintiff  to  be 

1  "  OiEce  of  '  The  New  England  Collecting  Agency '  for  the  Special  Collection  of 
Physicians'  Accounts.  3  School  Street,  Room  15.  Boston,  Mass.,  Dec.  1873.  Sir: 
As  the  close  of  the  year  is  now  at  hand  when  it  is  customary  for  books  to  be  made  up 
and  accounts  sent  out,  we  would  again  direct  your  attention  to  our  agency  for  the  col- 
lection of  physicians'  accounts.  We  have  made  complete  arrangements  for  systemati- 
cally and  promptly  collecting  all  such,  throughout  the  city  and  neighborhood.  Every 
effort  is  made  to  trace  parties  who  have  moved,  and  most  energetic  steps  are  taken  to 
compel  reluctant  and  dilatory  debtors  to  settle.  Should  you  intrust  us  with  your  col- 
lections we  shall  take  your  instructions  as  to  the  manner  in  which  you  wish  your  debtors 
treated,  whether  with  delicacy,  so  as  not  to  offend  them,  or  with  such  severity  as  to 
show  that  no  trifling  is  intended.  Our  terms  are  ten  per  cent,  commission  on  the 
amount  we  collect.  Settlements  made  as  often  as  wished.  Yours  obediently,  J.  E. 
Cupples  &  Co  "  —  Rep. 


228  CASWELL   V.    CROSS.  [CHAP.  IL 

arrested,  until  after  the  bringing  of  this  suit.  He  left  with  tlieni  sev- 
eral other  claims  against  oilier  parties  for  collection,  at  the  same  time, 
Cupples  &  Co.  agreeing  with  him  to  make  no  charge  against  him  or 
any  of  his  claims  unless  the}'  were  successful  in  making  tlie  collections. 

Upon  the  foregoing  facts,  if  the  plaintiff  was  entitled  to  recover,  a 
default  was  to  be  entered  against  the  defendant,  and  the  case  stand 
for  the  assessment  of  damages  only  ;  otherwise,  judgment  for  the  de- 
fendant. 

P.  IT.  Coojiey,  for  the  plaintiff. 

C.   W.  Twner,  for  the  defendant. 

Loud,  J.  It  is  not  necessary  in  this  case  to  consider  whether  the 
relation  of  attorney  and  client  existed  between  Cupples  &  Co.  and  the 
defendant,  nor  whether  the  defendant  understood  Cupples  &  Co.  to  hold 
themselves  out  as  attorneys  at  law.  The  card  sent  by  them  to  the  de- 
fendant, which  he  received  and  to  which  he  responded,  contains  ample 
notice  of  the  character  of  the  firm  and  of  the  business  pursued  by  them. 
They  held  themselves  out  as  professional  duns  ;  a  character  quite  well 
enough  known.  Their  card  contains  full  notice  of  the  mode  in  which 
they  did  business.  They  announced  that  they  would  act  under  instruc- 
tions ;  that  they  had  modes  of  doing  business,  either  with  delicacy  which 
could  not  offend,  or  with  a  severity  which  indicated  that  there  was  to  be 
no  trifling.  We  think  any  person  who  employs  such  agents  with  such 
knowledge  on  his  part,  giving  no  special  instructions,  authorizes  the 
agents  to  use,  and  becomes  responsible  for  injuries  caused  by  the  use 
of,  such  means  as  they  see  fit  to  adopt  in  the  prosecution  of  his  busi- 
ness for  his  benefit,  whether  those  means  be  honorable  and  proper  or 
whether  resort  is  had  to  insolence  and  insult  or  to  misuse  or  abuse  of 
legal  process.  They  are  his  servants  to  do  his  work  in  their  own  man- 
ner, though  that  manner  ma^'  be  unjustifiable  or  illegal.  This  view  of 
the  case  renders  it  unnecessarv  to  inquire  whether  the  mere  fact  that  the 
present  defendant  was  the  plaintiff  in  the  proceedings  against  Caswell, 
and  that  the  execution  upon  which  Caswell  was  arrested  was  in  his 
name  and  prosecuted  for  his  benefit  would  be  of  itself  sufficient  to  hold 
the  defendant  responsible  for  the  illegal  arrest  and  imprisonment  of  the 
plaintiff.  Upon  the  agreed  statement,  therefore,  the  defendant  is  to  be 
defaulted,  and  the  case  is  to  stand  for 

Assessmetit  of  damages} 

1  Compare  Smith  v.  Keal,  9  Q.  B.  D.  340,  349-354  (C.  A.,  1882).— Ed. 


SECT.  II.]  ROURKE    V.    WHITE    MOSS   COLLIERY   CO.  229 


ROURKE   V.    THE  WHITE    MOSS   COLLIERY    CO. 
CouKT  OF  Appeal.     1«77. 

[2  C.  P.  D.  205.] 

Appeal  from  the  decision  of  the  Common  Pleas  Division,  making 
absolute  an  order  to  enter  judgment  for  defendants,  1  C.  P.  D.  556. 

The  action  was  for  injuries  caused  to  plaintiff  b}'  the  negligence  of 
defendants'  servants;  and  was  tried  before  Lush,  J.,  at  the  Liverpool 
winter  assizes,  1875. 

The  defendants  were  the  owners  of  a  colliery,  and  had  begun  sink- 
ing a  pit  or  shaft,  for  which  purpose  they  employed  workmen  (among 
whom  was  the  plaintiff) ,  and  had  erected  a  steam  engine  near  the  mouth 
of  the  shaft,  and  employed  men  to  drive  it.  Having  sunk  some  depth, 
they  entered  into  an  agreement  with  Roger  Whittle  to  carry  on  the  work 
for  them.  The  following  were  the  terms  of  the  agreement,  &c.,  de- 
tailed b}-  the  managing  director  of  the  defendant  companj'  in  answer 
to  interrogatories  :  — 

"■3.  The  sinking  and  excavating  were  executed  b}'  Roger  Whittle, 
contractor,  under  a  verbal  contract,  at  a  certain  price  per  j'ard.  Whit- 
tle to  find  and  provide  all  labor  necessary  for  such  sinking,  and  the 
company  to  pro»ide  and  place  at  the  disposal  of  Whittle  the  necessary 
engine  power,  ropes,  and  hoppets,  with  two  engineers  to  work  the  en- 
gine, one  for  the  day  and  one  for  the  night,  such  engineers,  engine, 
and  hoppets  being  under  the  control  of  the  contractor, 

"  4.  The  engine,  pulley,  and  hoppet  which  were  used  to  bring  to  the 
surface  the  stuff  excavated  in  the  shaft  were  the  propert\'  of  the  defend- 
ants, but  were  at  the  time  of  the  accident  under  the  control  of  the 
contractor. 

"  5.  Ellis  Lawrence,  engineer,  was  in  charge  of  the  engine,  pulley, 
and  hoppet  on  the  27th  of  October,  1874,  under  the  control  of  Whit- 
tle. Lawrence  was  employed  by  the  defendant  company,  who  on  the 
7th  of  November  paid  him  for  his  work  from  the  21st  of  October  to 
the  3d  of  November." 

On  the  27th  of  October,  1874,  the  plaintiff,  being  one  of  the  men 
employed  and  paid  by  Whittle,  was  working  at  the  l)ottom  of  the  shaft, 
when,  owing  to  Lawrence,  the  engineer,  falling  asleep,  the  engine  was 
not  stopped  at  the  proper  time,  and  the  hoppet  was  overturned,  and 
fell  with  its  contents  on  the  plaintiff  below,  and  injured  him  severelv. 

A  verdict  was  found  for  the  plaintiff  for  £300,  with  leave  to  move 
to  enter  judgment  for  the  defendants,  if  the  court  should  be  of  opinion 
that  the  def'^ndants  were  not  liable  to  the  [)laintiff  for  Lawrence's 
negligence. 

The  Com-non  Pleas  Division  ordered  judgment  to  be  entered  for  the 
defendants. 

The  plaintiff  appealed. 


230  KOUKKE    V.    WHITE    MOSS    COLLIKKY    CO.  [CHAP.  IL 

X.  Temple^  Q.  C,  and  Galley,  for  tlie  pluiiiUff. 

Herschell,  Q.  C,  ai:d  McConnell,  for  Ihe  dcfciidants. 

L.  Temple,  Q.  C,  in  reply. 

CocKBUiiN,  C.  J.  I  am  of  opinion  that  the  judgnient  of  the  Common 
Pleas  division  should  be  atllrmed.  My  mind  has  thictnated  during  tlie 
argument;  but  I  have  been  led  to  the  opinion  I  have  formed  l«y  the 
answers  given  to  the  interrogatories  by  the  managing  director  of  tlie  de- 
fendant company.  It  is  quite  unnecessary  to  say  whether  the  case  of 
Wiggett  V.  Fox,  11  Ex.  83 2  ;  25  L.  J.  (Ex.)  188,  which  was  relied  on 
for  the  defendants,  was  rightly  decided.  INIy  own  view  is  tliat  it  was 
not;  though  it  might  agree  with  the  decision  if  1  could  come  to  the 
conclusion  that  the  facts  were  what  Baron  Channell  appears  to  have 
thought  they  were,  in  the  explanation  he  gives  of  that  case  in  Abra- 
ham V.  Reynohls,  5  H.  &  N.  at  pp.  149-150.  But  I  cannot  agree  that 
the  facts  were  as  the  learned  Baron  states  them.  It  is,  however,  un- 
necessary to  express  any  decided  opinion  on  that  case,  because  it  does 
not  apply  to  the  present,  the  facts  being  different.  I  regret  that  our 
decision  must  be  against  the  plaintiff,  for  he  has  sustained  a  serious 
injury  owing  to  the  negligence  of  a  man  who  undoubtedly  was  at  the 
time  of  the  accident  the  general  servant  of  the  defendants,  and  who 
had  been  placed  by  them  in  the  position  he  occupied.  But  these  cir- 
cumstances afford  no  ground,  in  point  of  law,  for  visiting  the  defend- 
ants with  the  result  of  the  man's  negligence,  if  he  was  not  in  point  of 
fact  their  servant  at  the  time,  in  the  sense  of  being  actually  employed 
to  do  their  work.  If  the  agreement  had  been  that,  whereas  Whittle 
was  to  sink  the  shaft  and  get  away  the  soil,  and  do  all  the  necessary 
work  to  make  a  proper  shaft,  yet  that  incidentally  to  this  work  the  de- 
fendants had  undertaken  to  do  part  of  it  themselves  by  means  of  their 
machinery  and  servants  —  so  that  this  part  of  the  work  would  have 
been  carried  on  independently  of  Whittle  and  not  under  his  control,  — 
then  the  defendants  would  have  been  liable.  For  in  that  case  Lawrence, 
the  engineman,  would  have  continued  to  be  the  servant  of  the  company, 
and  would  have  been  working  as  their  servant  at  their  work.  But  when 
we  look  at  the  answers  to  the  interrogatories  the  facts  amount  to  no 
more  or  less  than  this :  Whereas  Whittle  would  have  been  obliged  to 
hire  an  engine  and  engineers  in  order  to  carry  out  the  excavation  which 
he  had  undertaken,  the  company,  having  already  an  engine  and  at- 
tendants on  the  spot,  say  to  the  contractor,  "  We  have  got  an  engine 
and  enginemen  already,  and  it  shall  be  part  of  the  contract  that  we 
will  let  you  have  them  to  do  your  work  and  to  be  under  your  control,  and 
we  will  pay  you  so  much  the  less  per  yard  than  we  should  have  done 
had  you  been  obHged  to  find  the  engine  and  pay  the  engineer  yourself." 
It  appears  to  me  that  the  defendants  put  the  engine  and  this  man  Law- 
rence at  Whittle's  disposal  just  as  much  as  if  they  had  lent  both  to 
him.  But  when  one  person  lends  his  servant  to  another  for  a  particular 
employment,  the  servant  for  anything  done  in  that  particular  employ- 
ment must  be  dealt  with  as  the  servant  of  the  man  to  whom  he  is  lent, 


SECT.  II.]  EVANS   V.    DAVIDSON.  231 

altlioiigli  he  remains  the  general  servant  of  the  person  who  lent  him. 
Looking  at  the  present  case,  I  think  we  must  arrive  at  the  conclusion 
that  Lawrence  was  practically  in  Whittle's  service  at  the  time  he  was 
guiltv  of  the  negligence  complained  of;  and  this  being  so,  it  follows 
that  Lawrence  became  the  fellow-servant  of  the  plaiulitf;  and  it  is  set- 
tled law,  which  it  is  now  too  late  to  disturb,  that  a  servant  cannot  re- 
cover damages  from  his  employer  for  any  injury  he  may  have  sustained 
through  the  negligence  of  a  fellow-servant.  Therefore,  Lawrence  and 
the  plaintiff,  being  fellow-servants  in  the  employ  of  Whittle,  it  follows 
that  the  plaintilT  cannot  maintain  an  action  against  the  defendants. 
The  judgment  must,  therefore,  be  affirmed.'^ 

Judgment  affirmed^ 


EVANS    y.  DAVIDSON. 
Court  of  Appeals  of  Maryland.     1880. 

[53  .!/(/.  245.] 

Appeal  from  the  Circuit  Court  for  Cecil  County. 

The  case  is  stated  in  the  opinion  of  the  court. 

Exception. —  At  the  trial  the  plaintiff  offered  the  following  praN'ers  :  — 

1.  If  the  jury  believe  that  the  defendant's  servant,  in  the  course  of 
his  master's  service,  negligently  killed  the  plaintiffs  cow,  the  plaintiff 
is  entitled  to  recover  the  value  of  said  cow. 

2.  That  if  the  jury  find  that  the  servant  of  the  defendant  killed  the 
plaintiff's  cow,  by  negligently  knocking  it  on  the  head  with  a  stone 
while  driving  said  cow  out  of  defendant's  field,  and  shall  also  find  that 
said  cow  was  at  the  time  eating  up  the  corn  of  the  defendant,  and  had 
escaped  into  said  field  through  a  defect  in  defendant's  fences,  which  he 
was  bound  to  repair,  and  that  at  the  time  the  said  servant  was  in  the 
defendant's  employ,  hired  for  a  period  of  nine  months  to  do  general 
farm  work,  and  had,  on  the  day  of  the  injury  complained  of,  been  sent 
into  said  corn-field  to  cultivate  said  corn,  and  that  the  defendant  was 
absent  at  said  time,  that  tlien  the  plaintiff  is  entitled  to  recover ;  pro- 
vided the  jury  shall  believe  that  the  servant  was  acting  in  the  course 
of  his  employment,  at  the  time  of  the  killing,  and  that  it  was  part  of 

1  Concurring  opinions  were  pronounced  by  Mellish,  L.  J.,  Baggall.\y,  J.  A.,  and 
Bramwell,  J.  A.  —  Ed. 

2  Ace:  Miller  i-.  M.  &  N.  W.  Railway  Co.,  76  Iowa,  655  (1888) ;  PoweU  v.  Con- 
struction Co.,  88  Tenn.  692  (1890)  ;  Wyllie  i'.  Palmer,  137  N.  Y.  248  (1893)  ;  Donovan 
V.  Laing,  &c  ,  Construction  Syndicate,  [1893]  1  Q.  B.  629  (C.  A.) ;  BjTne  v.  K.  C,  Ft. 
S.  &  M.  R.  Co.,  61  Fed.  R.  605  (C.  C.  A.,  Sixth  Circuit,  1894). 

Contra:  Burton  v.  G.,  H.  &  S.  A.  Ry.  Co.,  61  Tex.  526  (1884)  ;  New  Orleans,  &c., 
Railroad  Co.  v.  Norwood,  62  Miss.  565  (1885).  Compare  Omoa  Coal  &  Iron  Co.  » 
Huntley,  2  C.  P.  D.  464  (1877).  —  Ed. 


232  EVANS    V.   DAVIDSON.  [CHAP.  IL 

said  servant's  duty  to  protect  his  said  master's  corn  by  driving  cattle 
from  said  field. 

3.  That  it  is  not  necessary,  to  establish  the  master's  liabilit}-  for  the 
acts  of  his  servant,  that  he  should  direct  the  particular  act,  but  if 
the  jur}'  believe  that  he  was  placed  by  his  master,  in  his  stead,  to  do 
the  class  of  acts  necessary  to  be  done  to  protect  his  master's  property', 
it  will  be  sufficient  authority  from  the  master  to  authorize  the  servant 
to  do  an  act  within  such  class  ;  and  if  the  jur}-  believe  that  the  defend- 
ant's servant  was  sent  in  this  case  to  cultivate  his  master's  corn,  in  his 
master's  absence,  and  that  the  plaintiffs  cow,  together  with  about 
thirt}'  other  cattle,  broke  into  said  corn-field,  and  were  eating  up 
said  corn  of  the  defendant,  and  shall  find  that  the  said  servant  of 
the  defendant  was  employed  at  the  time  b}-  the  nine  months,  to  do 
general  farm  work  for  the  defendant,  that  then  there  is  evidence  in  the 
case  from  which  the  jury  may  find  that  in  driving  said  cow  of  the  plain- 
tiff from  defendant's  corn-field,  and  protecting  his  corn,  the  servant 
was  acting  in  the  service  of  his  master,   with  his  master's  authority. 

The  defendant  prayed  the  court  to  instruct  the  jur^' :  — 

That  there  is  no  evidence  in  this  case  legally  sufficient  to  entitle  the 
plaintiff  to  recover. 

The  court  (Robinson  and  Stump,  JJ.)  granted  the  defendant's 
prayer,  but  rejected  the  plaintiff's  prayers ;  the  plaintiff  excepted, 
and  the  verdict  and  judgment  being  for  the  defendant,  the  plaintiff 
appealed. 

The  cause  was  argued  before  Bartol,  C.  J.,  Miller,  Alvey,  and 
Irving,  JJ. 

Albert  Constable  and  Heyiry  W.  Archer,  for  the  appellant. 

George  A.  Blake  and  W.  E.  Evans,  for  the  appellee. 

Alvey,  J.,  delivered  the  opinion  of  the  court. 

The  only  substantial  question  in  this  case  is  whether  the  defendant, 
the  present  appellee,  is  liable  for  the  wrongful  act  of  his  servant  in 
killing  the  plaintiff's  cow  while  driving  her  out  of  the  defendant's 
corn-field. 

It  appears  in  proof  tliat  the  defendant  was  a  farmer,  and  that  his 
farm  adjoined  that  of  one  Boulden  ;  that  he  had  emplo3'ed  on  his  farm 
negro  Lewis  and  two  other  negro  hands,  and  that  thej*  were  emploj'ed 
for  a  period  of  nine  months  to  do  general  farm  work  on  the  farm  ;  that 
on  the  day  the  plaintiff's  cow  was  killed  the  defendant  w^as  awav  from 
home,  and  that  the  three  negro  servants  or  hirelings  were  at  work  in 
the  corn-field,  cultivating  the  corn,  when  a  herd  of  cattle,  consisting  of 
about  tbirt}'  head,  among  which  was  the  plaintiff's  cow,  broke  into  the 
defendant's  corn-field,  where  his  hirelings  were  at  work,  from  the  ad- 
joining farm  belonging  to  Boulden  ;  and  that  upon  discovering  the  cattle 
among  the  corn  the  servants  "  immediately  started  to  drive  them  out, 
and  in  doing  so  the  said  negro  Lewis  negligently  struck  the  plaintiff's 
cow  with  a  stone  and  killed  her  before  she  had  left  the  field."  There 
was  also  proof  on  the  part  of  the  defendant  that  he  had  given  no  orders 


SECT.  II.]  EVANS    V.    DAVIDSON.  23-3 

in  regard  to  driving  cattle  out  of  tlie  field,  and  that  he  did  not  know 
that  the  cattle  were  in  the  corn  until  after  the  cow  had  been  killed. 

The  court  below,  at  the  instance  of  the  defendant,  instructed  the  jury 
that  there  was  no  evidence  in  the  cause  legally  sufficient  to  entitle  the 
plaintiff  to  recover.  To  this  ruling  and  the  rejection  of  the  prayers 
offered  by  the  plaintiff  the  latter  excepted. 

There  is  no  question  as  to  whether  the  relation  of  master  and  servant 
existed  between  the  defendant  and  the  party  doing  the  wrongful  act 
complained  of;  that  is  conceded.  But  the  question  is  whether  the  act 
of  driving  the  cow  out  of  the  corn-field  was  within  the  scope  of  the 
servant's  employment  under  the  circumstances  of  the  case. 

If  that  act  was,  either  expressly  or  by  fair  implication,  embraced 
within  the  employment  to  do  general  farm  work  on  the  defendant's 
farm,  then  it  is  clear  the  latter  is  liable  for  any  wrong  or  negligence 
committed  by  the  servant  in  doing  the  act  authorized  to  be  done. 
In  one  sense,  where  there  is  no  express  command  by  the  master,  all 
wrongful  acts  done  by  the  servant  may  be  said  to  be  beyond  the  scope 
of  the  authority  given  ;  but  the  liability  of  the  master  is  not  determined 
upon  any  such  restricted  interpretation  of  the  authority  and  duty  of  the 
servant.  If  the  servant  be  acting  at  the  time  in  the  course  of  his 
master's  service  and  for  his  master's  benefit,  within  the  scope  of  his 
employment,  then  his  act,  though  wrongful  or  negligent,  is  to  be  treated 
as  that  of  the  master,  although  no  express  command  or  privity  of  the 
master  be  shown.  This  general  principle  is  sanctioned  by  all  the 
authorities.  Baltimore  &  Ohio  R.  Co.  v.  Blocher,  27  Md.  277  ;  B.  «& 
Y.  Turnpike  Co.  v.  Boone,  45  id.  344  ;  Turberville  v.  Stanipe,  1  Ld. 
Raym.  265  ;  Huzzey  v.  Field,  2  C.  M.  &  R.  439  ;  Seymour  v.  Green- 
wood, 7  H.  &  N.  354  ,  Limpus  v.  London  Gen.  Omnibus  Co.,  1  H.  & 
Colt.  526  ;  Barwick  v.  English  Joint  Stock  Bank,  L.  R.,  2  Exch.  262  ; 
Wood  Mast.  &  Servt.,  §  307,  and  the  authorities  there  collected. 
Therefore  the  fact  that  the  master  gave  no  express  direction  in 
regard  to  driving  the  cattle  out  of  the  corn-field  and  did  not  know 
of  their  being  in  it  until  after  the  doing  the  injury  complained  of,  will 
not  avail  to  exonerate  the  master,  if  the  servant  was  acting  in  the 
course  of  his  employment. 

Was  then  the  servant  acting  in  the  course  of  his  employment? 
What  is  embraced,  as  commonly  understood,  in  general  farm  work? 
In  the  ver}'  nature  of  the  employment  there  must  be  some  implied 
authorit}'  and  duties  belonging  to  it ;  and  this  as  well  for  the  protection 
of  the  master  as  third  parties.  If,  for  instance,  a  servant  thus  em- 
ployed should  see  a  gate  open  or  a  panel  or  fence  down,  through  which 
a  herd  of  cattle  might  or  would  likely  enter  and  destroy  his  master's 
grain,  we  suppose  all  would  sa}'  that  it  would  be  the  positive  duty  of 
the  servant  to  close  the  gate  or  put  up  the  fence,  to  prevent  the  de- 
struction of  the  grain  ;  and  if  he  should  pass  by  and  wilfully  neglect 
such  duty,  it  would  constitute  cause  and  a  sufficient  justification  for  the 
discharge  of  the  servant.     If  that  be  so,  how  much  more  imperative 


234  STEVENS    V.    WOODWARD.  [CHAP.  II. 

the  dut}'  where,  as  in  this  case,  in  the  absence  of  tlie  master,  the  ser- 
vant being  in  the  field  at  vvorlc,  and  seeing  a  herd  of  cattle  break  into 
the  field,  and  in  the  act  of  destroying  the  corn,  to  drive  out  the  cattle 
and  thus  to  save  the  corn  from  destruction?  To  do  such  act,  for  the 
preservation  of  the  growing  crop,  must  be  regarded  as  ordinary  farm 
work,  and  such  as  every  farmer,  employing  a  servant  to  do  general 
farm  work,  would  reasonabh'  contemplate  and  have  a  right  to  expect 
as  matter  of  duty  from  the  servant.  The  servant,  therefore,  was  acting 
in  the  course  of  his  employment  in  driving  out  the  cattle,  and  if  he  did, 
while  driving  them  out,  commit  the  wrong  complained  of,  the  master  is 
hable  therefor. 

It  follows  that  we  cannot  concur  with  the  court  below  in  tlie  instruc- 
tion given  to  the  jury  ;  and  for  the  reasons  already  stated,  we  think 
the  first  and  second  prayers  offered  by  the  plaintiff  should  have  been 
granted.  The  plaintiff's  third  prayer  seems  to  have  been  intended,  not 
so  much  as  an  instruction  upon  the  law  of  the  case,  as  an  instruction 
as  to  the  conclusion  of  fact  at  which  the  jury  were  at  liberty  to  arrive 
upon  finding  certain  other  facts.  This  form  of  prayer  is  not  free  from 
objection,  and  there  was  no  error  in  rejecting  it. 

Judgment  reversed,  and  neiv  trial  awarded. 


STEVENS  AND  Another  v.  WOODWARD  and  Others. 

Queen's  Bench  Division.     1881. 

[6  Q.  B.  D.  318.] 

Appeal  from  the  Lord  Mayor's  Court. 

Action  for  negligence.  At  the  trial  before  the  Recorder  it  appeared 
that  the  plaintiffs  occupied  premises  beneath  the  offices  of  the  defend- 
ants, who  were  solicitors.  Evidence  was  given  for  the  plaintiffs  that  a 
quantity  of  water  had  come  from  the  offices  of  the  defendants,  and  it 
was  found  to  have  escaped  from  a  tap  left  open  in  a  lavatory  there.  It 
damaged  the  property  of  the  plaintiffs.  At  the  close  of  the  plaintiffs' 
case,  counsel  for  the  defendants  submitted  that  there  should  be  a  non- 
suit as  there  was  no  evidence  that  the  defendants  or  any  servant  of 
them  had  been  guilty  of  negligence,  and  he  cited  Ross  v.  Fedden,  Law 
Rep.,  7  Q.  B.  661.  The  learned  judge  declined  to  nonsuit,  whereupon 
evidence  for  the  defendants  was  given,  and  one  of  them  said  :  "  The 
lavatory  is  in  my  room,  and  is  for  my  own  use  exclusiveh',  and  m}' 
orders  are  that  no  clerk  shall  come  into  my  room  after  I  have  left.  I 
left  the  oflfice  on  the  12th  of  August,  at  5.45,  after  washing  my  hands 
and  turning  off  the  tap."  A  clerk  of  the  defendants  said,  "  I  went  into 
the  room  of  the  last  witness  to  wash  m}'  hands.  I  turned  the  tap  and 
the  water  did  not  flow,  and  then  I  went  out."  The  jur}'  found  a  ver- 
dict for  the  plaintiffs  for  £15,  and  leave  was  reserved  to  the  defendants 


SECT.  II.]  STEVENS   V.    WOODWARD.  235 

to  move  for  a  nonsuit  if  tlie  court  should  be  of  opinion  that  there  was 
no  evidence  of  negligence,  or  that  under  the  circumstances  the  defend- 
ants were  not  liable. 

A  rule  having  been  obtained  accordingly, 

Candy  showed  cause.  The  learned  Recorder  was  right  in  refusing 
to  nonsuit,  and  also  in  leaving  the  case  to  the  jury.  They  have  decided 
the  question.  If  the  master  himself  had  left  the  tap  open  he  would 
have  been  undoubtedly  liable.  The  clerk  to  a  solicitor  is  more  than  a 
servant,  he  acts  for  his  employer  in  his  absence.  Here  the  clerk  was  in 
the  office  during  working  hours,  and  it  was  part  of  the  routine  of  the 
day's  work  to  wash  his  hands.  It  is  the  general  practice  for  such  clerks 
to  wash  their  hands  in  the  offices  where  they  are  emploj'ed.  Here  the 
clerks'  room  contained  a  lavatory  for  their  use,  but  the  water  failed 
there,  and  so  the  clerk  went  to  the  other  room.  That  he  was  forbidden 
to  do  so  is  irrelevant.  Whatman  v.  Pearson,  Law  Rep.  3  C.  P.  422. 
He  was  acting  within  the  scope  of  his  employment.  Venables  v.  Smith, 
2  Q.  B.  D.  279.  This  case  is  not  like  Storey  r.  Ashton,  Law  Rep.  4 
Q.  B.  47G,  where  the  defendant's  carman  after  business  hours  drove  a 
clerk  out  on  business  of  his  own,  and  was  negligent  while  on  the  inde- 
pendent journey.  In  such  cases  no  doubt  the  master  is  not  liable : 
Mitchell  V.  Crassweller,  13  C.  B.  237.  The  question  is  whether  the 
subordinate  is  acting  within  the  scope  of  his  authority  if  he  be  an  agent, 
or  in  the  course  of  his  employment  if  he  be  a  servant.  The  clerk  here 
was  so  acting. 

Petheram^  Q.  C.  {De  Witt  and  G.  G.  Kennedy  with  him),  in  support 
of  the  rule.  The  principle  is  well  stated  in  Whatman  v.  Pearson, 
by  Montague  Smith,  J.  Here  the  clerk  was  acting  for  himself,  and  on 
his  own  responsibility.  His  duty  was  clearly  to  keep  in  his  own  room, 
and  not  to  wash  his  hands  in  the  room  of  his  master.  Could  it  be  said 
that  the  master  would  have  been  liable  if  the  clerk  had  washed  his 
hands  at  some  tavern  near  during  office  hours  and  had  left  the  tap  there 
running?  His  negligent  act  was  not  in  the  scope  of  his  employment, 
and  the  defendants  are  not  answerable  for  the  consequences.  If  the 
contention  for  the  plaintiffs  were  right,  a  master  would  be  liable  for  an}' 
independent  and  wrongful  act  of  the  servant  done  on  the  employer's 
premises. 

Grove,  J.  I  am  of  opinion  that  the  verdict  should  be  entered  for 
the  defendants.  No  doubt  this  question  is  a  very  nice  one,  and  there 
may  be  cases  close  to  the  line  between  the  liability  and  non-liability  of 
a  master  for  the  act  of  another  person  done  in  the  "  course  of  his  em- 
ployment" if  he  is  servant,  or  within  the  "scope  of  his  authority" 
when  he  is  an  agent,  for  as  Mr.  Candy  well  says,  such  is  the  mode  in 
which  those  terms  have  been  applied  by  the  courts,  although  the  words 
"scope  of  authority "  may  cover  both  cases.  The  facts  are  simple. 
The  defendants  were  solicitors,  with  a  clerk  who  had  an  office  or  some 
room  in  which  he  was  entitled  to  be,  and  where,  if  he  wished  to  wash 
his  hands  he  could,  as  the  learned  counsel  admits,  wash  them.     The 


236  STEVENS   V.    WOODWARD.  [CHAP.  II. 

master  left  the  premises,  whether  hnally  for  the  evening  or  not  does  not 
distinctl}-  appear,  nor  is  it,  I  think,  material.  He  had  left,  and  he  says, 
"  The  lavatory-  is  in  mj'  room,  and  is  for  ra}'  own  use  exclusively,  and 
my  orders  are  that  no  clerk  shall  come  into  my  room  after  I  have  left." 
The  clerk  therefore  would  have  no  right  to  enter  contrary  to  this  par- 
ticular prohibition,  prima  /acie  at  least  he  would  not  be  entitled  to  do 
so,  and  the  onus  would  lie  on  the  plaintiffs  to  show  that  the  clerk  had 
permission  to  use  his  master's  room.  The  case  is  a  little  stronger  by 
reason  of  the  prohibition,  but  I  quite  agree  with  Mr.  Candy  that  there 
are  cases  where  a  prohibition  would  have  no  effect,  and  I  cannot  put  a 
nearer  one  than  that  I  suggested  during  argument :  suppose  this  were  not 
a  clerk,  but  a  housemaid,  whose  diit\'  it  was  to  clean  up  the  room  and  at- 
tend to  the  lavatory  and  wipe  out  the  basin  ;  then  I  think  that,  although 
she  was  expresslj'  prohibited  from  using  the  basin,  and  was  told  not  to 
leave  the  tap  open,  3'et,  notwithstanding  the  prohibition,  her  act  of 
using  the  basin  and  omitting  to  turn  off  the  water  would  be  so  incident 
to  her  employment  that  the  master  would  be  liable.  Although  a  defi- 
nition is  difficult,  I  should  sa}'  that  the  act  for  which  the  master  is  to  be 
held  liable  must  be  something  incident  to  the  employment  for  which  the 
sei'vant  is  hired,  and  which  it  is  his  duty  to  perform.  All  the  cases 
tend  to  show,  and  Mitchell  i\  Crassweller  and  Storey*  t\  Ashton, 
point  out  clearly  that  line  of  distinction ;  in  one  case  a  servant  was 
employed  to  drive  his  master's  cart,  and  after  coming  home  to  the 
stable  started  off  on  a  fresh  journej'  for  his  own  purposes,  and  during 
that  second  journev,  which  was  not  incident  in  any  wa}'  to  his  employ- 
ment, an  accident  happened  ;  in  the  other  case,  which  goes  a  little  fur- 
ther, before  the  servant  put  up  the  cart  he  turned  off  and  went  in  an- 
other direction,  making  a  detour,  and  an  accident  happened  ;  in  both 
those  cases  the  master  was  held  not  liable.  I  think  I  should  have  come 
to  the  same  conclusion  as  that  I  have  arrived  at  if  there  had  been  no 
express  prohibition  in  the  case,  and  it  had  merel}'  been  shown  that  the 
clerks  had  a  room  of  their  own  and  a  lavatory  where  they  could  wash 
their  hands.  Then  what  possible  part  of  the  clerk's  employment  could 
it  be  for  him  to  go  into  his  master's  room  to  use  his  master's  lavatory, 
and  not  only  the  water  but  probably  his  soap  and  towels,  solely  for  his, 
the  clerk's  own  purposes?  What  is  there  in  any  way  incident  to  his 
employment  as  a  clerk?  I  see  nothing.  The  case  seems  to  me  just  the 
same  as  if  he  had  gone  up  two  or  three  flights  of  stairs  and  washed  his 
hands  in  his  master's  bedroom.  It  is  a  voluntar}'  trespass  on  the  por- 
tion of  the  house  private  to  his  master.  I  do  not  use  the  word  trespass 
in  the  sense  of  anything  seriously  wrong,  but  he  had  no  business  there 
at  all.  In  doing  that  which  his  employment  did  not  in  any  way  authorize 
him  to  do  he  negligently  left  the  stop-cock  open,  and  the  water  escaped 
and  did  damage.  I  think  there  was  nothing  in  this  within  the  scope  of 
his  authority  or  incident  to  the  ordinar}'  duties  of  his  employment. 
Then  it  is  said  tliat  is  a  question  for  the  jur}',  and  that  if  there  is  evi- 
dence on  both  sides  the  court  is  bound  to  accept  the  finding  of  fact 


SECT.  II.]  STEVENS   V.    WOODWARD.  237 

That  is  so  where  there  is  a  conflict  of  evidence,  but  there  is  no  conflict 
here.  The  plaintiffs'  case  was  one  of  apparent  probability,  that  the 
water  came  from  premises  in  which  a  stop-cock  was  left  open.  That 
might  ha[)pen  in  various  ways,  but  the  learned  Recorder  seemed  to 
think  he  must  assume,  until  the  contrary  was  shown,  that  there  was  an 
implied  liability  on  the  defendants.  If,  however,  that  was  removed  b^' 
uncontradicted  evidence,  showing  the  implication  to  be  a  mistake,  as  it 
would  have  been  if  the  defendants  had  shown  that  a  stranger,  some 
friend  of  one  of  the  clerks,  had  come  in  and  washed  his  hands  in  the 
lavatory  and  had  left  the  stop-cock  open,  surely  those  facts  would  dis- 
pose of  the  prima  fade  liability.  The  prohibition  is  material  as  show- 
ing the  local  limit  of  the  clerk's  duties.  The  case  is  wholly  free  from 
any  conflict  of  evidence,  for  the  jury  believed  the  evidence  given  both 
for  the  plaintiifs  and  the  defendants,  it  being  quite  consistent.  The 
evidence  for  the  plaintiffs  made  out  a  ground  of  liability,  and  the  evi- 
dence for  the  defendants  limited  it,  by  showing  that  the  clerk  was  not 
in  the  relation  of  servant  to  the  master  in  respect  of  this  particular  act 
of  neglect.     I  think  the  judgment  should  be  for  the  defendants. 

LiNDLEY,  J.  I  am  of  the  same  opinion,  and  I  agree  for  much  the 
same  reasons.  I  do  not  see  on  what  principle  the  defendants  are  to  be 
held  liable  for  a  negligent  act  of  a  man  who  trespasses  in  their  room 
and  leaves  their  tap  nnining.  The  facts  show  that  the  clerk  was  a  tres- 
passer after  his  master  had  left.  I  think  this  a  plain  case,  and  that  our 
judgment  should  be  for  the  defendants,  with  costs. 

Bale  absolute} 

1  Compare  Ruddiman  v.  Smith,  CO  L.  T.  Rep.  n.  s.  708  (Q.  B.  D.,  1889).  There 
the  defendauts,  mauufacturiug  statioucrs,  supplied  in  their  apartments  a  lavatory  for 
the  use  of  their  clerks.  A  few  minutes  after  the  close  of  business,  the  foreman  went 
to  the  lavatory  to  wash  liis  hands,  found  the  water  had  been  turned  off,  and  negligently 
left  the  tap  open.  When  the  water  was  turned  on,  damage  was  done  to  the  premises 
and  goods  of  the  plaintiffs,  wiio  sublet  from  the  defendants  the  floor  below.  In  the 
Lord  Mayor's  Court  of  London  the  Recorder  gave  judgment  for  the  plaintiffs.  The 
defendauts  appealed.  The  Queen's  Bench  Division  dismissed  the  appeal.  Lord 
Colekid(;e,  C.  J.,  said  :  "  The  master  is  liable  if  the  act  of  negligence  was  done  by  the 
servant,  either  within  the  scope  of  his  authority  or  as  an  incident  to  his  employment. 
I  say,  with  some  doubt,  on  the  variety  of  cases  decided,  that  it  might  have  been  within 
the  scope  of  his  employment  to  wash  his  hands  ;  I  should  say  it  was,  though  I  do  not 
desire  to  place  my  judgment  upon  that,  as  I  am  clearly  of  opinion  that  it  was  an  inci- 
dent to  bis  employment.  In  such  houses  there  is  generally  some  place  for  the  clerks 
to  hang  up  their  hats,  and  a  lavatory,  and  so  on  ;  all  these  things  are  incident  to  the 
employment.  .  .  .  Stevens  v.  Woodward,  as  far  as  the  decision  goes,  is  a  decision  by 
which  the  master  was  held  not  liable,  but  held  not  liable  by  both  judges  on  the  ground 
that  the  clerk  had  been  forbidden  to  do  what  he  had  done.  .  .  .  The  ground  on  which 
that  case  was  decided  was,  that  there  was  an  act  of  trespass  committed,  and  that  it 
would  be  monstrous  to  make  the  person  against  whom  that  trespass  was  committed 
liable  for  the  damage  thereby  caused.  ...  I  do  not  wish  to  place  my  judgment  on  the 
case  of  Rylands  v.  Fletcher,  L.  R.  .3  H.  L.  3.30."  Hawkins,  J.,  said :  "  I  rest  my 
judgment  entirely  on  the  ground  that  it  was  intended  that  the  clerks  should  use  this 
tap  in  the  course  of  their  employment ;  that  this  clerk  did  use  it  in  the  course  of  his 
employment,  and  for  tlie  negligent  use  of  the  tap  the  master  is  liable.  .  .  .  Here  there 
is  a  lavatory  provided  for  the  use  ol  the  clerks,  the  clerk  uses  it,  and  it  is  as  a  cler)^ 
and  because  he  is  a  clerk,  that  he  uses  it." —  Ed. 


233  MOEIER   V.    ST.    PAUL,   MINNEAPOLIS,    ETC.    RY.    CO.       [CHAP.  IL 


MORIER   y.   ST.   PAUL,   MINNEAPOLIS,   &  MANITOBA 
RAILWAY   COMPANY. 

Supreme  Court  of  Minnesota.     1884. 

[31   Minn.  351.] 

Appeal  b}-  defendant  from  an  order  of  the  District  Court  for  Polk 
Connt\-,  Stearns,  J.,  presiding,  refusing  a  new  trial. 

Ji.  B.  Gahisha  and  -P.  A.  Dufour,  for  appellant. 

JR.  Beynolds,  for  respondent. 

Mitchell,  J.  All  the  evidence  in  this  case  tends  to  prove  that 
some  section  men,  under  the  charge  of  a  section  foreman,  were,  in  the 
employment  of  defendant,  engaged  in  repairing  its  railroad  near 
defendant's  farm,  on  the  21st  of  October,  1882.  While  engaged  in 
such  work,  they  usually  returned  to  their  boarding-house  for  dinner, 
but  on  this  day,  their  work  being  at  some  distance,  they  took  their  din- 
ner with  them.  At  noon,  when  they  quit  work  to  eat,  they  built  a  fire, 
or  rekindled  one  which  some  other  person  had  kindled,  on  defendant's 
right  of  way,  for  the  purpose  of  warming  their  coffee.  After  eating 
dinner  they  resumed  their  work,  negligently  leaving  the  fire  unex- 
tinguished, which  spread  in  the  grass  and  ran  on  to  plaintiff's  land  and 
burned  his  ha3\  There  is  no  evidence  that  the  defendant  was  boarding 
these  men,  or  that  it  was  any  part  of  its  duty  to  prepare  or  cook  their 
meals.  Neither  is  there  anythini,'  tending  to  show  that  the  defendant 
either  knew  or  authorized  the  kindling  of  a  fire  for  any  such  purpose, 
either  on  this  or  any  other  occasion.  Nor  is  their  any  evidence  that 
it  was  the  duty  of  these  section  men  to  exercise  any  supervision  over 
the  right  of  wa}',  or  to  extinguish  fires  that  might  be  ignited  on  it.  So 
far  as  the  evidence  goes,  their  employment  was  exclusively  in  repairing 
the  railroad  track. 

The  doctrine  of  the  liability  of  the  master  for  the  wrongful  acts  of 
his  servant  is  predicated  upon  the  maxims,  respondeat  superior  and 
qui  facit  per  alium  facit  per  se.  In  fact,  it  rests  upon  the  doctrine 
of  agency.  Therefore,  the  universal  test  of  the  master's  liabihty  is 
whether  there  was  authority,  express  or  implied,  for  doing  the  act ; 
that  is,  was  it  one  done  in  the  course  and  within  the  scope  of  the 
servant's  employment?  If  it  be  done  in  the  course  of  and  within  the 
scope  of  the  employment,  the  master  will  be  liable  for  the  act,  whether 
negligent,  fraudulent,  deceitful,  or  an  act  of  positive  malfeasance. 
Smith  on  Master  «fe  Servant,  151.  But  a  master  is  not  liable  for 
every  wrong  which  the  servant  may  commit  during  the  continuance  of 
the  employment.  The  liability  can  only  occur  when  that  which  is  done 
is  within  the  real  or  apparent  scope  of  the  master's  business.  It  does 
not  arise  when  the  servant  steps  outside  of  his  emplo^-ment  to  do  an 


SECT.  II.]       MORIEll   V.    ST.    PAUL,   MINNEAPOLIS,   ETC.    KY.    CO.  239 

act  for  himself,  not  connected  with  his  master's  business.  Beyond  the 
scope  of  his  employment  the  servant  is  as  much  a  stranger  to  his 
master  as  any  third  person.  The  master  is  only  responsible  so  long  as 
the  servant  can  be  said  to  be  doing  the  act,  in  the  doing  of  which  he  is 
guilty  of  negligence,  in  the  course  of  his  employment.  A  master  is 
not  responsible  for  an}'  act  or  omission  of  his  servant  which  is  not  con-, 
nected  with  the  business  in  which  he  serves  him,  and  does  not  happen 
in  the  course  of  his  employment.  And  in  determining  whether  a  par- 
ticular act  is  done  in  the  course  of  the  servant's  employment,  it  is 
proper  first  to  inquire  whether  the  servant  was  at  the  time  engaged  in 
serving  his  master.  If  the  act  be  done  while  the  servant  is  at  liberty 
from  the  service,  and  pursuing  his  own  ends  exclusively,  the  master  is 
not  responsible.  If  the  servant  was,  at  the  time  when  the  injury  was 
inflicted,  acting  for  himself,  and  as  his  own  master,  pro  tem2)ore,  the 
master  is  not  liable.  If  the  servant  step  aside  from  his  master's  busi- 
ness, for  however  short  a  time,  to  do  an  act  not  connected  with  such 
business,  the  relation  of  master  and  servant  is  for  the  time  suspended. 
Such,  variously  expressed,  is  the  uniform  doctrine  laid  down  by  all 
authorities.  2  Thompson  on  Negligence,  885,  886  ;  Shearman  &  Redf. 
on  Negligence,  §§  62,  63  ;  Cooley  on  Torts,  533  et  seq.  ;  Little  Miami 
R.  Co.  y.  Wetmore,  20  Ohio  St.  110 ;  Storey  v.  Ashton,  L.  R.  4  Q.  B. 
476  ;  Mitchell  v.  Crass weller,  13  Com.  B.  237  ;  McClcnaghan  v.  Brock, 
5  Rich.  (Law)  17. 

It  would  seem  to  follow,  as  an  inevitable  conclusion,  from  this,  that 
on  the  facts  of  this  case  the  act  of  these  section  men  in  building  a  fire 
to  warm  their  own  dinner  was  in  no  sense  an  act  done  in  the  course  of 
and  within  the  scope  of  their  employment,  or  in  the  execution  of  de- 
fendant's business.  F'or  the  time  being  they  had  stepped  aside  from  that 
business,  and  in  building  this  fire  the}"  were  engaged  exclusiveh'  in  their 
own  business,  as  much  as  the}'  were  when  eating  their  dinner  ;  and  were 
for  the  time  being  their  own  masters,  as  much  as  when  they  ate  their 
breakfast  that  morning,  or  went  to  bed  the  night  before.  The  fact  that 
the}'  did  it  on  defendant's  right  of  way  is  wholly  immaterial,  in  the 
absence  of  any  evidence  that  defendant  knew  of  or  authorized  the  act. 
Had  they  gone  upon  the  plaintiff's  farm  and  built  the  fire,  the  case 
would  have  been  precisely  the  same.  It  can  no  more  be  said  that  this 
act  was  done  in  the  defendant's  business,  and  within  the  scope  of  their 
employment,  than  would  the  act  of  one  of  these  men  in  lighting  his 
pipe,  after  eating  his  dinner,  and  carelessly  throwing  the  burning  match 
into  the  grass.  See  Williams  v.  Jones,  3  Hurl.  &  C.  2.56.  The  fact 
that  the  section  foreman  assisted  in  or  even  directed  the  act  does  not 
alter  the  case.  In  doing  so  he  was  as  much  his  own  master,  and  doing 
his  own  business  as  were  the  section  men.  Had  it  appeared  that  it 
was  a  part  of  his  duty  to  look  after  the  premises  generally,  and  ex- 
tinguish fires  that  might  be  ignited  on  them,  his  omission  to  put 
out  the  fire  might  possibly,  within  the  case  of  Chapman  v.  N.  Y.  C. 
R.  Co.,  33  N.  Y.  369,  be  considered  tlie  negligence  of  the  defendant. 


240  SINGER    MANUFACTURING    CO.    V.    RAHN.  [CHAP.  II. 

But  nothing  of  the  kind  appears,  and  the  burden  is  upon  plaintiff  to 
prove  afflrmativel}'  every  fact  necessary  to  establish  defendant's  liability. 

Order  reversed,  and  neic  trial  granted} 


SINGER  MANUFACTURING  CO.  v.  RAHN. 

Supreme    Court    of    the    United    States.     1889. 
[132  U.  S.  518.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Minnesota. 

The  original  action  was  brought  by  Katie  Rahn,  a  citizen  of  Minne- 
sota, against  the  Singer  Manufacturing  Company,  a  corporation  of 
New  Jersey,  for  personal  injuries  done  to  the  plaintiff  by  carelessly 
driving  a  horse  and  wagon  against  her  when  crossing  a  street  in 
Minneapolis.  The  complaint  alleged  that  the  driver  of  the  wagon  was 
the  defendant's  servant  and  engaged  in  its  business.  The  answer  de- 
nied this,  and  alleged  that  the  driver,  one  Corbett,  was  engaged  in 
selling  sewing-machines  on  commission,  and  not  otherwise,  for  the 
defendant.     The  replication  denied  the  allegations  of  the  answer. 

At  the  trial  before  a  jury,  after  the  plaintiff  had  introduced  evidence 
to  maintain  the  issues  on  her  part,  the  defendant  put  in  evidence  the 
contract  between  itself  and  Corbett,  headed  "Canvasser's  Salary  and 
Commission  Contract,"  the  material  provisions  of  which  were  as 
follows  :  — 

"  1st.  The  party  of  the  first  part  agrees  to  pay  unto  the  party  of 
the  second  part,  for  his  services  in  selling  and  leasing  the  Singer  sew- 
ing-machines, five  dollars  for  each  and  every  acceptable  sale  of  a  new 
machine  sold  by  him  ;  and  in  addition  to  said  five  dollars  a  further  sura 
of  ten  per  cent  of  the  gross  price  realized  for  said  sales  so  made  shall 
be  paid  to  said  second  party,  which,  in  addition  to  the  five  dollars  on 
each  acceptable  sale,  shall  be  deemed  a  selling  commission. 

"  2d.  The  part}'  of  the  first  part  shall  pay  unto  the  second  party, 
for  his  further  services,  a  collecting  commission  of  ten  per  cent  on  the 
amounts  or  balances  due  from  customers  having  purchased  machines 
from  him,  pa^'able  as  the  cash  shall  be  collected  and  paid  over  to  the 
said  first  part}'  or  its  authorized  representative  at  Minneapolis ;  and 
the  said  per  centum  so  paid  shall  be  in  full  for  the  services  of  said 
second  party  in  collecting  or  other  service  rendered  to  date  thereof." 

"  7th.  The  said  first  party  agrees  to  furnish  a  wagon,  and  any 
damage  to  said  wagon  through  negligence  shall  be  at  the  cost  and  ex- 
pense of  said   second  party ;  and  the  said  second  party  agrees  to  fur- 

1  See  Williams  v.  Jones,  3  H.  &  C.  256  (1864),  s.  c.  in  Excheqiuer  Chamber,  3  H.  & 
C  602  (1865). —  Ed. 


SECT.  II.]  SINGER    MANUFACTUKIXG   CO.    V.    RAIIN.         .  241 

nisli  a  horse  and  liurncss,  to  be  used  exclusively  in  canvassing  for  the 
sale  of  said  machines  and  the  general  prosecution  of  said  business  ; 
and  said  second  part}'  agrees  to  give  his  exclusive  time  and  best  ener- 
gies to  said  business,  and  paj'  all  expenses  attending  same. 

"8th,  The  said  second  partv  agrees  to  employ  himself  under  the 
direction  of  the  said  Singer  Manufacturing  Company,  and  under  such 
rules  and  instructions  as  it  or  its  manager  at  Minneapolis  shall  pre- 
scribe, and  in  all  respects  to  comport  himself  to  the  best  interests  of 
the  business  of  the  said  first  party,  and  to  neither  sign  nor  to  make 
use  of  the  name  of  the  said  company  in  any  manner  whereby  the  pub- 
lie  or  any  individual  may  be  led  to  believe  that  the  said  company  is 
responsible  for  his  actions,  said  party's  power  being  simply  to  make 
sales  and  turn  over  the  proceeds  to  the  said  first  party.  If  any  special 
acts  are  required  of  said  second  part}-,  the  power  to  perform  the  same 
will  be  specially'  delegated." 

"  10th.  It  is  further  agreed  that  if  said  second  party  sells  an}-  other 
than  the  machines  furnished  to  hira  by  said  first  party,  it  shall  work  a 
forfeiture  of  any  commissions  that  accrue  under  this  agreement,  if 
violated  prior  to  the  termination  of  the  same." 

'•  12th.  This  agreement  may  be  terminated  by  the  first  party  at  any 
time,  and  by  said  second  party  by  giving  first  party  ten  days'  notice  in 
writing." 

The  defendant  requested  the  court  to  instruct  the  jury  "that  the 
contract  under  which  Corbett,  the  driver  of  the  horse  causing  the  acci- 
dent, was  operating  made  him  an  independent  contractor,  and  the  de- 
fendant could  not  be  liable  for  any  damage  done  through  his  negligence, 
if  he  was  negligent."  The  court  declined  to  give  the  instruction  re- 
quested, and  instructed  the  jury  that  the  contract  established  the  rela- 
tion of  servant  and  master  between  Corbett  and  the  defendant,  and 
that  the  defendant  was  answerable  for  Corbett's  negligence  while 
engaged  in  its  service. 

The  jury  returned  a  verdict  for  the  plaintiff  in  the  sum  of  610,000, 
upon  which  judgment  was  rendered  ;  and  the  defendant  tendered  a  bill 
of  exceptions,  and  sued  out  this  writ  of  error. 

Mr.  Grosveyior  Lowrey  and  Mr.  Joseph  S.  Auerbach,  for  plaintiff 
in  error. 

Mr.  W.  P.  Clottgh,  Mr.  John  W.  Willis,  and  Mr.  Charles  A.  Ehert^ 
for  defendant  in  error. 

Mr.  Justice  Gray,  after  stating  the  case  as  above  reported,  deliv- 
ered the  opinion  of  the  court. 

The  general  rules  that  must  govern  this  case  are  undisputed,  and 
the  only  controversy  is  as  to  their  application  to  the  contract  between 
the  defendant  company  and  Corbett,  the  driver,  by  whose  negligence 
the  plaintiff  was  injured. 

A  master  is  liable  to  third  persons  injured  by  negligent  acts  done  b}' 
his  servant  in  the  course  of  his  employment,  although  the  master  did 
not  authorize  or  know  of  the  servant's  act  or  neglect,  or  even  if  he  dia- 
ls 


242  .        SINGER   MANUFACTURING    GO.    V.    RAHN.  [CHAP.  II. 

approved  or  forbade  it.  Philadelphia  &  Reading  Railroad  v.  Derby, 
14  How.  468,  486.  And  the  relation  of  master  and  servant  exists 
whenever  the  employer  retains  the  right  to  direct  the  manner  in  which 
the  business  shall  be  done,  as  well  as  the  result  to  be  accomplished,  or 
in  other  words  "  not  only  wliat  shall  be  done,  but  how  it  shall  be  done." 
Railroad  Co.  v.  Hanning,  15  Wall.  649,  656. 

The  contract  between  the  defendant  and  Corbett,  upon  the  construc- 
tion and  effect  of  which  this  case  turns,  is  entitled  "  Canvasser's 
Salary  and  Commission  Contract."  The  compensation  to  be  paid  by 
tlie  company  to  Corbett,  for  selling  its  machines,  consisting  of  "  a  sell- 
ing commission  "  on  tlie  price  of  machines  sold  by  him,  and  "  a  collect- 
ing commission"  on  the  sums  collected  of  the  purchasers,  is  uniformly 
and  repeatedly  spoken  of  as  made  for  his  "  services."  The  company  may 
discharge  him  by  terminating  the  contract  at  any  time,  whereas  he  can 
terminate  it  only  upon  ten  days'  notice.  The  company  is  to  furnish 
him  with  a  wagon  ;  and  the  horse  and  harness  to  be  furnished  b}'  him 
are  "  to  be  used  exclusivelj-  in  canvassing  for  the  sale  of  said  machines 
and  the  general  prosecution  of  said  business." 

But  what  is  more  significant,  Corbett  "  agrees  to  give  his  exclusive 
time  and  best  energies  to  said  business,"  and  is  to  forfeit  all  his  com- 
missions under  the  contract,  if  while  it  is  in  force  he  sells  any  machines 
other  than  those  furnislied  to  him  b}'  the  company' ;  and  he  further 
"  agrees  to  employ  himself  under  the  direction  of  the  said  Singer 
Manufacturing  Compan}',  and  under  such  rules  and  instructions  as  it 
or  its  manager  at  Minneapolis  shall  prescribe." 

In  short,  Corbett,  for  the  commissions  to  be  paid  him,  agrees  to  give 
his  whole  time  and  services  to  the  business  of  the  compan\' ;  and  the 
company  reserves  to  itself  the  right  of  prescribing  and  regulating  not 
only  what  business  lie  shall  do,  but  the  manner  in  which  he  shall  do  it ; 
and  might,  if  it  saw  fit,  instruct  him  what  route  to  take,  or  even  at 
what  speed  to  drive. 

The  provision  of  the  contract,  that  Corbett  shall  not  use  the  name  of 
the  company  in  an}'  manner  whereby  the  public  or  an}'  individual  may 
be  led  to  believe  that  it  is  responsible  for  his  actions  does  not  and  can- 
not affect  its  responsibility  to  third  persons  injured  b}'  his  negligence 
in  the  course  of  his  employment. 

The  Circuit  Court  therefore  rightly  held  that  Corbett  was  the  defend- 
ant's servant,  for  whose  negligence  in  the  course  of  his  employment, 
the  defendant  was  responsible  to  the  plaintiff.  Railroad  Co.  v.  ITan- 
ning,  above  cited ;  Linnehan  v.  Rollins,  137  Mass.  123 ;  Regina  v. 
Turner,   11  Cox  Crim.  Cas.    551. 

Judgment  affirmed} 

1  See  Pickens  v.  Diecker,  21  Ohio  St.  212  (1871).  — Ed. 


SECT.  II.]  STAPLES   V.    SCHMID.  243 


STAPLES   V.   SCHMID. 
Supreme  Court  of  Rhode  Island.     1893. 

[26  Atl.  R.    193.] 

Action  by  Phoebe  A.  Staples  against  John  M.  Schniid  and  another 
to  recover  I'or  her  wrongful  arrest,  caused  by  defendants.  There  was 
judgment  for  plaintiff,  and  defendants  petition  for  a  new  trial.  New 
trial  granted,  provided  plaintiff  refused  to  remit  all  damages  in  excess 
of  $1U0. 

George  J.  West,  for  plaintiff. 

Frederick  Jiueckert,  for  defendants. 

Douglas,  J.  The  jury  have  substantially  found  in  this  case  that 
the  defendants'  salesman,  erroneously  suspecting  the  plaintiff  of  having 
stolen  a  package  of  spoons  from  the  store,  which  was  in  his  charge, 
detained  her,  sent  for  a  police  officer,  and  caused  her  to  be  sent  to  the 
police  station,  and  there  searched,  and  they  assessed  the  damages  to 
the  plaintiff  in  the  sum  ofS750.  The  defendants  bring  their  petition 
for  a  new  trial,  alleging  that  the  verdict  is  against  the  evidence  ;  that, 
if  the  facts  were  as  found,  the  defendants  are  not  liable;  and  that  the 
damages  are  excessive.  The  questions  of  law  involved  are  raised  by 
exceptions  to  the  refusal  of  the  presiding  judge  to  rule  as  requested  by 
the  defendants,  and  by  exceptions  to  the  charge  as  given.  The  propo- 
sition upon  which  these  exceptions  are  based,  and  wliich  the  defendants 
contend  is  established  b\-  the  cases  he  cites,  is  that,  as  matter  of  law, 
it  is  not  within  the  scope  of  the  employment  of  a  salesman  left  in 
charge  of  a  store  to  cause  the  arrest  and  search  of  a  person  whom  he 
believes  to  have  stolen  property  from  his  custod}-.  The  general  rule 
defining  the  liability  of  a  master  for  the  acts  of  his  servant  is  thus  laid 
down  in  Wood  on  Master  and  Servant  (section  279)  :  "  For  all  acts 
done  by  the  servant  under  the  express  orders  or  direction  of  the  mas- 
ter, as  well  as  for  all  acts  done  in  the  execution  of  his  master's  bus'  ■ 
ness  within  the  scope  of  his  emplovment,  the  master  is  responsible; 
but  when  tlie  act  is  not  within  the  scope  of  his  employment,  or  in  obe- 
dience to  the  master's  orders,  it  is  the  act  of  the  servant,  and  not  of 
the  master,  and  the  servant  alone  is  responsible  therefor."  The  prin- 
ciple of  the  rule  is  stated  by  Andrews,  J.,  in  Rounds  v.  Railroad  Co.> 
64N.  Y.  129.1  .   .   . 

It  is  not  contended  that  this  general  rule  is  not  settled  by  reason 
and  authority,  but  the  defendants  say  that  the  acts  here  complained  of 
were  not  within  the  scope  of  their  agent's  employment.  It  is  obvious 
that  in  most  cases  the  question  is  one  of  fact.  What  are  the  limita- 
tions of  an  agent's  or  a  servant's  authority  depends  generally  upon  the 
things  he  is  to  do,  the  object  he  is  set  to  accomplish,  the  degree  of  dis- 

1  A  quotation  from  Rounds  v.  D.  L.  &  W.  Railroad  Co.,  avte,  pp.  218,  220-221,  la 
omitted.  —  Ed. 


244  STAPLES    V.    SCHMID.  [CHAP.  IL 

cretion  wbich  the  position  where  he  is  placed  and  the  exigencies  of  the 
occasion  reasonably  call  for.  These  are  matters  of  common  knowledge 
when  they  pertain  to  the  ordinary  occupations  of  men,  matters  of  fact, 
as  well  known  to  the  jur}'  as  to  the  court,  or  inferences  of  fact  from 
well-known  or  proven  facts,  which  it  is  as  much  the  province  of  the 
jur}-  to  draw  as  it  is  the  province  of  the  court  to  carry  out  a  principle 
of  law  to  particular  deductions.  It  is  only  when  the  act  under  consid- 
eration is  elearl}-  foreign  to  the  scope  of  the  employment  that  the  court 
can  exclude  it  as  a  matter  of  law.  Opinion  of  Deuman,  J.,  for  a 
majority  of  the  court  in  Burns  v.  Poulson,  42  Law  J.  C.  P.  302,  L.  R. 
8  C.  P.  563.  "  What  is  or  is  not  within  the  course  of  the  servant's 
employment  or  the  course  of  his  authorit}'  is,  within  certain  limits,  a 
question  of  fact ;  and  the  decisions  of  the  courts  on  the  subject  are  not 
altogether  consistent,  or  easily  to  be  reconciled."  Add.  Torts  (6th  ed. 
by  H.  G.  Wood),  *  107.  Some  of  these  inconsistencies  have  evidently 
arisen  from  attempts  to  ascertain  sharp  legal  distinctions  where  the 
cases  presented  legitimately  only  questions  of  fact.  Bearing  in  mind 
these  considerations,  we  may  now  consider  the  cases  cited  by  counsel 
as  settling  principles  by  which  this  case  should  be  decided. 

Two  principles  seem  to  be  recognized  bj-  the  English  cases  cited : 
First,  that,  when  a  servant  not  speciall}'  appointed  to  protect  property 
arrests  a  person  whom  he  supposes  to  have  stolen  his  master's  goods, 
the  servant  must  be  presumed  to  have  acted  in  pursuance  of  his  duty 
as  a  good  citizen,  and  not  in  the  scope  of  his  employment  as  a  servant. 
This  was  strenuously  urged  by  counsel  in  Edwards  v.  Railway  Co.,  L. 
R.  5  C.  P.  445,  and  was  adopted  by  the  court  as  the  rule  for  that  case. 
We  doubt  its  cogency  as  a  rule  of  universal  application.  The  arrest  of 
a  thief  is  not  an  ordinary  necessity-  of  commercial  business.  An  at- 
tempt to  steal  is  an  extraordinar}'  event  which  puts  the  guardian  of  the 
property-  to  an  instantaneous  election  of  means  to  frustrate  it.  A  clerk 
or  salesman  in  such  a  case  may  ex  necessitate  be  invested  with  duties 
and  powers  which  are  more  germane  to  the  scope  of  employment  of  an 
officer.  The  opinions  of  the  judges,  however,  are  instructive  in  this 
connection  as  showing  assent  to  the  converse  of  the  proposition,  which 
is  nearer  the  case  at  bar.  Keating,  J.  (page  448),  saA-s  :  ''  If  there  is 
any  evidence  to  6x  the  defendants,  it  must  be  upon  an  implied  author- 
ity resulting  from  Holmes'  position  as  their  servant,  and  that  raises 
broadly,  the  question  whether  a  person  in  the  position  of  Holmes  has 
implied  authority  to  give  into  custod}'  an}'  one  whom  he  suspects  to 
have  stolen  his  master's  goods.  I  think  there  is  no  such  implied 
authority.  It  is  admitted  that  the  point  is  new,  and  that  there  is  no 
case  in  which  such  an  authorit}'  has  been  assumed  to  exist.  .  .  .  There 
seems  no  grounds  for  saying  that  what  was  done  was  in  the  ordinary 
course  of  the  business  of  the  company,  nor  that  it  was  for  their  benefit, 
except  in  so  far  as  it  is  for  the  benefit  of  all  the  queen's  subjects  that  a 
criminal  should  be  convicted.  If  Holmes  acted  from  a  sense  of  the 
duty  which  rests  on  every  one  to  give  in  charge  a  person  whom  he 


SECT.  II.]  STAPLES   V.    SCHMID.  245 

thinks  is  committing  u  felony,  his  conduct  would  in  no  wjjy  be  con- 
nected with  the  defendants."  Montague  Smith,  J.,  saj-s:  "  No  doubt, 
if  in  furtherance  of  the  particular  business  of  the  company  it  is  neces- 
sary to  arrest  a  person,  the  servants  of  the  company  have  an  implied 
authorit}'  to  do  it.  .  .  .  Here,  however,  the  cause  of  the  arrest  was  not 
at  all  connected  with  the  company's  business,  and  it  cannot,  I  think, 
be  presumed  that  the  company-  gave  authorit}^  to  their  servants  gen- 
erally to  apprehend  any  person  whom  the  servants  think  is  committing 
a  felony,  even  though  on  the  company's  property."  Brett,  J.,  "  It  is 
not  enough  that  the  act  should  be  for  the  benefit  of  the  master,  but  it 
must  be  in  the  ordinarj-  course  of  business,  in  order  that  an  authority 
to  do  it  may  be  implied.  In  the  case  of  a  person  being  arrested  for 
breaking  the  company's  by-laws,  it  may  well  be  said  that  this  is  the 
way  in  which  the  company-  carr}-  on  their  business  ;  and  similarly  if  an 
officer  be  appointed  expressl3'  to  watch  the  company's  property.  I 
should  think,  if  he  took  an  innocent  person  into  custody-  on  the  charge 
of  stealing,  it  might  well  be  said  that  the  company  were  liable."  In 
Allen  V.  Railway  Co.,  L.  R.  6  Q.  B.  65,  a  booking  clerk  for  the  railway- 
company  caused  the  arrest  of  a  person  who  had  apparentl}-  attempted 
to  rob  the  till  in  his  charge.  The  attempt  was  unsuccessful,  and  had 
ceased  at  the  time  of  the  arrest.  It  was  held  that  such  an  arrest  was 
not  in  the  scope  of  the  clerk's  emplo3ment,  its  object  being  the  punish- 
ment of  the  offence,  not  the  protection  of  the  property,  but,  in  the 
course  of  his  opinion,  Blackburn,  J.,  says  (page  68)  :  "  I  am  inclined 
to  think  that  if  a  man  in  charge  of  a  till  were  to  find  that  a  person  was 
attempting  to  rob  it,  and  he  could  not  prevent  him  from  stealing  the 
propert}'  otherwise  than  by  taking  him  into  custody,  the  person  in 
charge  of  the  till  might  have  an  implied  authority  to  arrest  the  offender  ; 
or  if  the  clerk  had  reason  to  believe  that  the  money  had  been  actuall}' 
stolen,  and  he  could  get  it  back  b3-  taking  the  thief  into  custod}-,  and 
he  took  him  into  custody  with  a  view  of  recovering  the  propertv  taken 
away,  it  might  be  that  that  also  might  be  within  the  authority'  of  a  per- 
son in  charge  of  a  till.  I  am  not,  however,  prepared  to  pronounce  a 
a  decided  opinion  on  these  supposed  cases.  The  present  case  is  alto- 
gether different.  There  is  a  marked  distinction  between  an  act  done 
for  the  purpose  of  protecting  the  property  by  preventing  a  felon}-,  or  of 
recovering  it  back,  and  an  act  done  for  the  purpose  of  punishing  the 
offender  for  that  which  has  already  been  done."  Second,  that  it  cannot 
be  inferred  as  matter  of  law  that  a  master  has  authorized  his  servant 
to  do  an  act  which  he  could  not  lawfull}-  do  himself  in  tho  circum- 
stances supposed  by  the  servant  to  exist.  In  Poulton  v.  Railwa}-  Co., 
L.  R.  2  Q.  B.  534,  this  proposition  is  thus  expressed  by  Mr.  Justice 
Shee  (page  541):  "An  authority  cannot  be  implied  to  have  been 
given  to  a  servant  to  do  an  act  which,  if  his  master  were  on  the  spot, 
the  master  would  not  be  justified  in  doing  on  the  assumption  of  a  par- 
ticular state  of  facts."  The  servant  in  this  case  caused  the  arrest  of  a 
passenger  because  he  supposed  the  freight  due  for  transportation  of  the 


246  STAPLES  V.  scnMiD.  [chap.  II. 

passenger's  horse  had  not  been  paid.  If  the  supposition  had  been  true, 
the  arrest  would  have  been  unlawful,  and  there  could  be  no  implied 
authority,  because  the  limit  of  the  servant's  powers  was  defined  by  act 
of  parliament.  In  the  same  case,  Blackburn,  J.,  says  (page  538)  : 
"  There  can  be  no  question  that  where  a  railway  company,  or  any 
other  body,  have  upon  the  spot  a  person  acting  as  their  agent,  that 
is  evidence  to  go  to  the  jury  that  that  person  has  authority  to  do  all 
those  things  on  their  behalf  which  are  right  and  proper  in  the  exi- 
gencies of  their  business,  —  all  such  things,  as  somebody  must  make 
up  his  mind,  on  behalf  of  the  company,  whether  they  should  be  done 
or  not ;  and  the  fact  that  the  company  are  absent,  and  the  person  is 
there  to  manage  their  affairs,  is  prima  facie  evidence  that  he  was  clothed 
with  authority  to  do  all  that  was  right  and  proper  ;  and  if  he  happens 
to  make  a  mistake,  or  commit  an  excess,  while  acting  within  the  scope 
of  his  authority,  his  employers  are  responsible   for  it." 

In  applying  the  principle  of  this  case,  its  limitations  must  not  be 
forgotten. 

1.  It  is  a  rule  for  the  court,  in  the  absence  of  evidence  bearing  upon 
the  issue.  It  does  not  prevent  a  logical  inference  of  fact  from  proven 
facts,  even  when  that  inference  is  that  the  master  has  directed  a  wrong. 
The  court  of  appeals  of  New  York,  in  Lynch  v.  Railroad  Co.,  90  N.  Y. 
77,  found  that  the  jury  were  justified  in  believing  from  the  evidence 
that  the  gate-keeper  was  expected  hy  the  company  to  detain  persons 
who  refused  to  present  tickets  or  to  pay  their  fares.  The  scope  of  the 
employment  being  thus  ascertained,  they  say  (page  86)  :  "  In  any- 
thing that  he  did  he  did  not  act  for  any  purpose  of  his  own,  but  to 
discharge  what  he  believed  to  be  his  duty  to  bis  principal.  It  matters 
not  that  he  exceeded  the  powers  conferred  upon  him  by  his  principal, 
and  that  he  did  an  act  which  the  principal  was  not  authorized  to  do,  so 
long  as  he  acted  in  the  line  of  his  duty,  or,  being  engaged  in  the  ser- 
vice of  the  defendant,  attempted  to  perform  a  duty  pertaining,  or 
which  he  believed  to  pertain,  to  that  service.  He  detained  the  plaintiff 
at  the  [railroad]  station,  caused  his  arrest,  went  with  the  police  officer 
to  the  police  station,  there  made  a  complaint,  and  then  the  next  morn- 
ing appeared  before  the  police  magistrate,  and  renewed  his  complaint. 
These  were  successive  steps  taken  bj*  the  gate-keeper  to  enforce  the 
payment  of  the  fare  b}'  the  plaintiff,  or  to  punish  him  for  refusing  to 
pay  it,  and  for  all  that  he  did  the  defendant  is  responsible."  See,  also, 
Smith  V.  Webster,  23  Mich.  298  ;  Barden  v.  Felch,  109  Mass.  154. 

2.  Neither  does  this  principle  forbid  the  court  to  imply  the  responsi- 
bility^ of  the  master  for  the  wrongful  or  excessive  exercise  of  the  ser- 
vant's discretion  in  a  case  where  the  act  done  would  have  been  lawful 
if  the  supposed  circumstances  had  been  real.  This  limitation,  care- 
fully made  by  Mr.  Justice  Shee,  seems  to  have  been  ignored  in  the 
case  of  Mali  v.  Lord,  39  N.  Y.  381,  which  is  cited  by  counsel  as  deci- 
sive of  the  case  at  bar.  The  opinion  delivered  by  Judge  Grover,  rests 
the  case  upon  the  reasoning  of  Poulton  v.  Railway  Co.,  but  makes,  as 


SECT.  II.]  STAPLES   V.   SCHMID.  247 

we  think,  an  unwarranted  extension  of  it.  The  court  say  (page  384)  ; 
"It  cannot  be  presumed  that  a  master,  by  intrusting  his  servant  with 
his  property,  and  conferring  power  upon  him  to  transact  his  business, 
thereby  authorizes  him  to  do  any  act  for  its  protection  that  he  could 
not  lawfully  do  himself  if  present.  The  master  would  not,  if  present,  be 
justified  in  arresting,  detaining,  and  searching  a  person  upon  suspicion, 
however  strong,  of  having  stolen  his  goods,  and  secreted  them  upon 
his  person.  The  authority  of  the  superintendent  could  not,  therefore, 
be  implied  from  his  employment."  It  is  quite  true  that  the  master 
would  have  had  no  right  to  arrest  and  search  an  innocent  person  ; 
but  it  is  equal]}'  true  that  he  would  have  had  the  right  to  detain  a 
thief,  and  to  recapture  his  property  from  him.  The  case,  therefore, 
was  one  where  the  act,  aside  from  any  excessive  force,  might  be  law- 
ful or  unlawful  according  to  whether  the  supposed  circumstances  were 
real  or  unreal.  The  servant  was  left  in  a  situation  where  he  was 
obliged  to  determine  the  fact,  and  where  his  duty  to  his  master  depended 
upon  his  decision.  The  decision  was  his,  as  the  substitute  of  the  mas- 
ter, and  the  act  was  one  intended  by  him  to  be  for  his  master's  benefit, 
and  which  his  duty  required  if  the  facts  were  as  supposed  ;  hence,  as 
to  third  persons,  it  was  the  master's  act.  The  criterion  of  the  mas- 
ter's liabilit.y  can  never  be  whether  the  act  would  have  been  lawful  for 
the  master  to  have  done  in  the  circumstances  as  the}-  actually  existed. 
It  remains  to  apply  these  principles  to  the  case  at  bar.  The  servant 
in  this  case  was  left  with  an  assistant  in  charge  of  his  master's  store. 
His  ordinar}-  duties  undoubtedly  were  to  show  goods,  and  to  sell  them 
to  customers.  It  was,  however,  equally  his  duty  to  protect  his  mas- 
ter's property  from  pilfering.  Tlie  acts  complained  of  were  evidentlv 
done  with  that  intention.  The  arrest  was  for  the  purpose  of  searching 
for  and  recovering  the  master's  property,  not  with  the  object  of  pun- 
ishing crime  against  the  public.  The  establishment  was  not  a  railroad 
station  where  the  multiplicit}'  of  employees  confines  each  one  to  a  nar- 
row round  of  duties,  where  special  officers  are  stationed  to  preserve 
order  and  detain  criminals  ;  nor  a  large  diy  goods  emporium,  where 
detectives  and  watchmen  are  employed  to  guard  against  thieves.  The 
servant  here  was  salesman  and  custodian  in  one.  Whatever  the  mas- 
ter might  do  in  the  protection  of  liis  property  he  expected  his  servant 
to  do  in  his  absence.  If  the  servant  had  seen  the  plaintiff  take  up  and 
secrete  the  package  of  spoons  in  question,  and  had  allowed  her  to  walk 
away  with  them  unmolested,  could  an}'  one  say  that  he  had  not  been 
derelict  in  his  duty  to  his  master?  If,  in  the  performance  of  this  duty, 
he  mistook  the  occasion  for  it,  or  exceeded  his  powers,  or  employed  an 
improper  degree  of  compulsion,  the  mistake  and  the  excess  must  be 
answered  for  by  the  master.  We  conclude,  therefore,  that  the  direc- 
tions asked  by  the  defendants  were  rightly  refused,  and  that  the  charge 
correctly  stated  the  law  of  the  case.  We  are  not  convinced  by  an 
examination  of  the  testimony  that  the  preponderance  of  evidence  is  so 
strongly  against  the  verdict  as  to  warrant  us   in  disturbing  it.     If  the 


248  BOWLER   V.    O'CONNELL.  [CHAP.  11. 

jur}'  believed  the  plaintiff  instead  of  the  clerk  and  the  police  officer, 
they  were  justified  in  finding  the  verdict  of  guilt}'.  The  damages,  how- 
ever, which  were  awarded  are  grossly  excessive  as  compensation  for 
the  wrong  which  the  plaintiff  suffered.  They  must  have  been  estimated 
on  the  supposition  that  exemplary  or  punitive  damages  were  allowable 
in  a  case  of  this  kind.  The  law  upon  this  point  was  settled  at  an  early 
da}'  by  this  court  in  the  case  of  Hagan  v.  Railroad  Co.,  3  R.  I.  88, 
where  the  late  Chief  Justice  Brayton  clearly  shows  that,  unless  the 
principal  participates  in  or  approves  the  wrong  of  his  servant,  he  can 
be  held  only  for  the  actual  damages  occasioned  thereby.  The  opinion 
of  Judge  Brayton  is  quoted  with  approval  by  the  supreme  court  of  the 
United  States  in  the  recent  case  of  Lake  Shore  &  M.  S.  Railway  Co. 
V.  Prentice,  147  U.  S.  101.  For  this  reason  we  think  a  new  trial  should 
be  granted,  unless  the  plain tiif  will  consent  to  remit  the  damages  in 
excess  of  the  sum  of  $100.^ 


BOWLER  V.   O'CONNELL. 
Supreme  Judicial  Court  of  Massachusetts.     1894. 

[162  Mass.  319]. 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  being 
kicked  by  a  colt  belonging  to  the  defendants.  At  the  trial  in  the 
Superior  Court,  before  Mason,  C.  J.,  the  jury  returned  a  verdict  for 
the  plaintiflT;  and  the  defendants  alleged  exceptions.  The  material 
facts  appear  in  the  opinion. 

O.  D.  Robinson,  (  T.  B.  O'Bonnell  with  him) ,  for  the  defendants. 

W.  H.  Brooks,  for  the  plaintiff. 

Allen,  J.  In  determining  the  legal  question  which  is  presented, 
we  must  assume  that  the  jury  adopted  the  plaintiff's  view  as  to  the 
circumstances  attending  the  accident,  and  the  testimon}'  in  contradic- 
tion thereof  may  be  disregarded.  With  reference  to  this  aspect  of  the 
case,  the  defendants  asked  an  instruction  to  the  jury  that  they  were 
not  responsible  for  the  acts  of  Frank  O'Connell,  who  was  thirteen 
years  of  age  and  the  son  of  one  of  the  defendants,  in  his  invitation  to 
the  plaintiff  to  take  a  ride  upon  the  colt.  The  jury,  however,  were 
instructed  that,  if  Frank  O'Connell  was  the  servant  of  the  defendants 
in  leading  the  colt  from  the  stable  to  the  defendants'  yard,  and  while 
so  leading  the  colt  the  plaintiff,  who  was  between  five  and  six  years  of 
age,  was  invited  b}'  Frank  to  ride,  and  was  injured  as  he  was  going 

1  As  to  causins:  arrest,  compare  Goff  v.  Great  Northern  Railway  Co.,  3  E.  &  E. 
672  (1861)  ;  Palmeri  v.  Manhattan  Railway  Co.,  133  N.  Y.  261  (1892)  ;  Central  Rail- 
way Co.  V.  Brewer,  78  Md.  394  (1894).  See  also  Ramsden  v.  B.  &  A.  Railroad  Co., 
104  Mass.  117  (1870).  — Ed. 


SECT.  II.]  BOWLER   V.    O'CONNELL.  249 

forward  to  accept  the  invitation,  it  would  be  competent  for  the  jury 
to  find  that  such  invitation  was  within  the  scope  of  the  employment  of 
Frank  ;  and  again,  that  if,  while  Frank  was  leading  the  colt  along  or 
across  the  sidewalk  or  in  the  ^ard  of  the  defencUuils,  as  the  servant  of 
the  defendants,  and,  while  so  leading  the  colt  in  ihe  line  of  his  duty, 
he  of  his  own  accord,  and  witliout  the  knowledge  or  authority  of  or 
direction  from  the  defendants,  invited  the  plaintiff  to  ride  upon  the 
horse,  and  while  the  plaintiff  was  attempting  to  go  forward  to  accept 
the  invitation  of  Frank  he  was  injured,  it  was  competent  for  the  jury 
to  hnd  the  action  of  Frank  to  be  negligent,  and  such  negligence  to  be 
within  the  scope  of  his  employment. 

The  correctness  of  these  instructions  is  to  be  determined  witli 
reference  to  the  testimou}'  in  the  case.  The  colt,  it  would  seem,  was 
about  two  years  and  nine  months  old.  It  was  not  harnessed  into  a 
wagon,  but  the  boy  Frank,  who  must  be  assumed  to  have  been  in  the 
defendants'  employment,  was  leading  it  from  the  watering-tub  to  his 
stall,  or  to  some  other  place.  The  defendants  were  contractors  and 
excavators,  and  owned  many  teams.  There  was  nothing  to  show  that 
it  was  any  part  of  their  business,  or  that  it  was  their  habit  or  custom, 
to  furnish  horses  or  colts  to  ride,  or  to  allow  boys  to  ride  upon  them, 
or  that  they  in  any  way  ever  authorized  or  permitted  Frank  to  do  this. 
Under  this  state  of  things,  we  are  unable  to  see  how  the  invitation  b}' 
Frank  to  the  plaintitf  to  ride  upon  the  colt,  although  given  while 
Frank  was  engaged  in  his  employment,  can  be  considered  to  be  an  act 
done  in  the  course  of  such  employment,  or  for  the  purpose  of  doing 
the  business  of  his  masters.  The  true  test  of  liability  on  the  part  of 
the  defendants  is  this.  Was  the  invitation  given  in  the  course  of 
doing  their  work,  or  for  the  purpose  of  accomplishing  it?  Was  this 
act  done  for  the  purpose,  or  as  a  means,  of  doing  what  Frank  was 
employed  to  do?  If  not,  then  in  respect  to  that  act  he  was  not  in  the 
course  of  the  defendants'  business. 

An  act  done  by  a  servant  while  engaged  in  his  master's  work, 
but  not  done  as  a  means  or  for  the  purpose  of  performing  that  work, 
is  not  to  be  deemed  the  act  of  the  master.  And  under  this  rule,  in 
view  of  the  testimony,  the  defendants  were  not  responsible  for  the 
consequences  of  Frank's  invitation  to  the  plaintiff  to  ride  upon  the 
colt.  Howe  V.  Newmarch,  12  Allen,  49;  Hawks  v.  Charleraont,  107 
Mass.  414;  Hawes  v.  Knowles,  114  Mass.  518;  Levi  v.  Brooks,  121 
Mass.  501;  George  v.  Gobey,  128  Mass.  289,  290;  Wallace  v. 
Merrimack  River  Navigation  &  Express  Co.,  134  Mass.  95  ;  Walton  v. 
New  York  Central  Sleeping  Car  Co.,  139  Mass.  556  ;  Young  v.  South 
Boston  Ice  Co.,  150  Mass.  527  ;  Mitchell  v.  Crassweller,  13  C.  B.  237  ; 
Croft  V.  Alison,  4  B.  »Sc  Aid.  590  ;  Limpus  v.  London  General  Omnibus 
Co.,  1  H.  &  C.  526  ;  Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2  Ex. 
259,  265  ;  Storey  v.  Ashton,  L.  R.  4  Q.  B.  476  ;  British  Mutual  Bank- 
ing Co.  V.  Charnwood  Forest  Railway,  18  Q.  B.  D.  714;  Snyder  v. 
Hannibal  &   St.  Joseph   Railroad,   60   Mo.    413,   419  ;  Morier  v.  St. 


250  ILLINOIS   CENTRAL    RAILROAD    CO.    V.   LATHAM.      [CHAP.  IL 

Paul,  Minneapolis,  &  Manitoba  Railway,  31  Minn.  351  ;  Davis  v. 
Houghtellin,  33  Neb.   582. 

There  ma}'  be  cases  where  injuries  result  from  accepting  unauthorized 
invitations  to  ride  which  do  not  fall  within  the  above  rule,  and  are  to  be 
distinguished.  Such  cases  may  be  found  in  the  books,  and  need  not 
be  considered  here,  the  circumstances  being  different. 

Under  the  circumstances  disclosed  in  the  present  case,  it  was  not 
competent  for  the  jur}'  to  find  that  the  invitation  given  to  the  plaintiff 
to  ride  was  within  the  scope  of  Frank's  employment,  and  for  this 
reason  there  must  be  a  new  trial.  Exceptions  sustained. 


ILLINOIS   CENTRAL   RAILROAD   CO.  v.   LATHAM. 
Supreme  Court  of  Mississippi.     1894. 

[16  So.  R.  757.] 

Appeal  from  Circuit  Court,  Panola  county  :  Eugene  Johnson,  Judge. 

"  To  be  officially  reported.'- 

Action  by  Lincoln  Latham  against  the  Illinois  Central  Railroad 
Company.  From  a  judgment  for  plaintiff,  defendant  appeals.  Re- 
versed. 

Mayes  <b  Harris,  for  appellant. 

G.  D.  Shauds,  for  appellee. 

Whitfield,  J.  Accepting  the  plaintiffs  testimony  as  true,  it  ap- 
pears that  he  was  riding  on  top  of  the  coach  to  avoid  the  payment 
of  his  fare,  and  did  not  go  back  to  the  caboose  because  he  feared 
the  conductor  would  say  something.  He  got  on  at  Memphis  to  go 
to  Sardis.  The  fare  was  $1.50.  The  brakeman  did  not  demand 
$1.50,  but  50  cents.  He  did  not  eject  him  when  the  demand  for  50 
cents  was  first  made  and  declined,  and  not  until  the  transit  was 
nearly  terminated,  Under  the  rules  introduced  by  plaintiff,  and  as 
explained  by  Homer  Williams,  a  witness  for  plaintiff,  it  would  have 
been  the  duty  of  the  brakeman  to  report  to  the  conductor  the  pres- 
ence of  plaintiff  on  the  train,  and  acted,  as  to  his  ejection,  under  the 
conductor's  orders.  The  brakeman  made  no  report  to  the  conductor 
whatever,  but  acted  independently  of  him.  Failing  to  get  the  mone}', 
—  the  50  cents,  —  he  cursed  the  plaintiff,  and  shoved  him  off  the 
moving  train.  Surel}',  in  no  just  and  reasonable  view  can  it  be  held 
that  in  the  acts  of  the  brakeman,  thus  done,  was  he  acting  in  his 
master's  business,  or  with  intent  to  perform  any  dut}'  due  to  the  mas- 
ter. He  was  not  demanding  fare,  but  mone}'  to  put  in  his  pocket. 
He  did  not  eject  him  under  the  orders  of  the  conductor,  nor  when, 
aside  from  any  orders  of  the  conductor,  he  first  discovered  him,  nor 
at  the  next  station.     He  was  plainly  attempting  to  extort  money  for 


SECT.  II.]      McGILVRAY   V.    WEST   END    STREET   RAILWAY    CO.  251 

his  private  use.  Wc  are  not  prepared  to  bold  that  it  may  not  be 
the  implied  dut}'  of  a  brakeman  to  eject  trespassers,  on  the  idea 
clearl}'  put  by  Judge  Andrews  in  Hoffman  v.  Railroad  Co.,  87  N.  Y. 
28,  that  "the  implied  authority  in  such  a  case  is  an  inference  from 
the  nature  of  the  business,  and  its  actual  daily  exercise  according  to 
common  observation  and  experience,"  —  a  statement  of  the  law  copied 
literally  and  approved  in  Railroad  Co.  v.  Kelley  (Kan.),  14  Pac.  173. 
It  is  true  the  contrary-  is  held  in  Bess  v.  Railroad  Co.,  35  W.  Va. 
492 ;  14  S.  E.  234,  and  possibly  in  other  cases ;  but  what  may  be 
the  better  reason  is  not  now  before  us,  and  we  leave  this  open,  as 
not  necessary  now  to  decide.  The  question  here  is  whether  the  brake- 
man,  in  doing  what  he  did,  as  he  did  it,  was  acting  for  the  corapanj-, 
or  in  the  accomplishment  solely  of  his  own  independent,  wilful,  mali- 
cious, and  wicked  purposes  ;  using  his  authority  to  eject  trespassers, 
if  an}-  there  were,  as  a  mere  cover  under  which  to  extort  money  from 
appellee,  not  for  fare,  but  for  his  pocket.  The  case  in  14  Pac.  173 
is  clearly  a  case  where  the  injured  boj'  was  ejected  from  the  train  as 
a  trespasser,  simply  to  get  him  off,  as  being  improperh'  on  the  train, 
in  execution  of  what  the  court  held  the  implied  dut}'  of  the  brake- 
man  to  eject  trespassers.  Manifestly,  in  that  case  the  brakeman 
acted  in  discharge  of  what  he  deemed  a  duty  to  the  compan}'.  There 
was  no  hint  in  that  case  of  anj'  act  done  b}'  the  brakeman  for  bis  own 
private  benefit,  or  to  gratif)'  even  private  malice.  The  true  rule  is 
thus  clearl}'  announced  in  Rounds  r.  Railroad  Co.,  64  N.  Y.,  at  page 
136.^  .  .  .  We  approve  this  as  an  admirable  statement  of  the  law. 
It  is  true  that  ordinarily  the  question  whether  the  brakeman's  act  was 
within  the  line  of  his  dutj',  done  for  the  master  and  in  his  business, 
is  one  of  fact,  for  the  jur}',  since  ordinarily  there  is  conflict  in  the 
evidence;  but  in  this  case,  on  the  plaintiff's  own  testimon}',  the  court 
should  have  granted  the  peremptorv  charge,  following  the  cases  of 
Railwa}'  Co.  v.  McAfee,  71  Miss.  70,  14  South.  260,  and  Railroad 
Co.  V.  Harris,  71  Miss.  74,  14    South.  263. 

Judgment  reversed  and  cause  remanded. 


McGILVRAY  v.    WEST  END    STREET  RAILWAY  COM- 
PANY. 

Supreme  Judicial  Court  op  Massachusetts.     1895. 

[41  N.  E.  R.  116.] 

Appeal  from  Superior  Court,  Suffolk  county ;  John  Hopkins,  Judge. 

Action  by  Daniel  McGilvray  against  the  West  End  Street  Railway 

Company  for  an  assault  committed  by  one  of  defendant's  employees. 

1  The  passage  appears  at  pp.  222-223,   ante.  —  Ed. 


252  McGILVRAY    V.    WEST    END    STRE;ET    RAILWAY.  [CHAP.  11. 

The  court  ruled  that  phiiutitf  had  no  evidence  on  which  to  go  to  the 
jur}',  and  he  excepts.      Exceptions  overruled. 

Plaintiff  testified  that  while  he  was  standing  in  the  street  with  one 
foot  on  the  sidewalk  and  the  other  on  the  step  to  defendant's  car-house, 
waiting  for  a  car,  he  complained  to  the  contluctor  of  the  car  which  had 
just  been  switched  into  the  car-house,  because  the  conductor  had  not 
told  him  that  the  car  was  not  going  through,  and  that  the  conductor, 
after  saying  that  plaintiff  had  not  asked  him  if  it  was  going  further, 
and  after  certain  other  conversation,  assaulted  him. 

L.  31.  Child,  for  plaintiff. 

Win.  B.  Sproiit,  for  defendant. 

Barker,  J.  If  we  assume  in  favor  of  the  plaintiff  that,  upon  the 
evidence,  the  jury  might  find  that  he  had  paid  his  fare  through  to  Pros- 
pect Street,  and  that,  in  addition  to  his  right  to  remain  unmolested 
upon  the  public  street,  he  had  the  right,  upon  leaving  tlie  car  which 
had  been  switched  into  the  stable,  to  inquire  of  the  conductor  why  the 
contract  to  carr}'  him  to  Prospect  Street  was  not  carried  out,  and  to 
enter  the  stable  to  ascertain  when  and  how  he  could  be  carried  to  his 
destination,  j-et  the  verdict  for  the  defendant  was  rightly  ordered.  The 
onl}'  reasonable  inference  to  be  drawn  from  the  whole  evidence  is  that 
while  waiting  in  the  public  street  to  take  one  of  the  defendant's  cars, 
he  saw  'fit  to  engage  in  an  altercation  with  a  person  who  was  in  fact 
one  of  the  defendant's  servants,  and  received  from  him  an  assault 
which  was  not  made  for  any  purpose  which  the  jurj'  could  find  to  be 
part  of  the  defendant's  business.  The  defendant  had  no  control  over 
the  place  where  the  plaintiff  was,  and  no  duty  to  protect  the  plaintiff 
there  from  any  assaults,  although  it  would  be  responsible  to  him  for 
assaults  committed  upon  him  there,  as  elsewhere,  by  its  servants  in  the 
scope  of  their  employment.  The  suggestion  that  it  could  be  found 
within  the  scope  of  that  employment  for  a  servant  to  punish  him  for 
asserting  his  rights  against  the  defendant  is  of  course  untenable  ;  nor 
is  there  sufficient  ground  in  the  suggestion  that  the  assault  was  for  the 
purpose  of  putting  him  out  of  the  defendant's  premises  to  warrant  sub- 
mitting the  case  to  a  jury.  Exceptions  overruled. 


SECT.  III.]  UAZAKD   V.    TREADWELL.  253 

SECTION  IIL 

Contracts  } 

PATERSON  V.  TASH. 
Nisi  Pkius.     1742-43. 

£2  IStr.  1178.] 

It  was  held  by  Lee,  C.  J.,  that  though  a  factor  has  power  to  sell, 
and  thereby  bind  his  principal,  yet  he  cannot  bind  or  artect  the  prop- 
erty of  the  goods  by  pledging  them  as  a  security  for  his  own  debt, 
though  there  is  the  formality  of  a  bill  of  parcels  and  a  receipt. 

And  the  jury  found  accordingly.* 


HAZARD   V.   TREADWELL. 
Nisi  Prius,  Pkatt,  C.  J.,  1768. 

[1  Str.  506.J 

The  defendant,  who  was  a  considerable  dealer  in  iron,  and  known  to 
the  plaintiff  as  such,  though  they  had  never  dealt  together  before,  sent 
a  waterman  to  the  plaintiff  for  iron  on  trust,  and  paid  for  it  afterwards. 

1  Cases  on  undisclosed  principals  are  found  in  Chapter  V. — Ed. 

2  "  It  is  manifest  that  when  a  man  is  dealing  with  other  people's  goods,  the  differ- 
ence between  an  authority  to  sell,  and  an  authority  to  mortgage  or  pledge,  is  one 
which  may  go  to  the  root  of  all  the  motives  and  purposes  of  the  transaction.  The 
object  of  a  person  who  has  goods  to  sell  is  to  turn  them  into  money,  but  when  those 
goods  are  deposited  bv  way  of  security  for  money  borrowed  it  is  a  transaction  of  a 
totally  different  character.  If  the  owner  of  the  goods  does  not  get  the  money,  his 
object  and  purpose  are  simply  defeated  ;  and  if  on  the  other  hand,  he  does  get  the 
money,  a  different  object  and  different  purpose  are  substituted  for  the  first,  namely, 
that  of  borrowing  money  and  contracting  the  relation  of  debtor  with  a  creditor,  while 
retaining  a  redeemable  title  to  the  goods,  instead  of  exchanging  the  title  to  the  goods 
for  a  title,  unaccompanied  by  any  indebtedness,  to  their  full  equivalent  in  money." 
Per  Lord  Selbokne,  iu  City  Bank  v.  Barrow,  5  App.  Cas.  664,  670  (H.  L.,  1880). 

In  England  the  doctrine  of  the  principal  case  has  been  largely  abrogated  by  the 
Factors  Acts.  See  4  Geo.  TV.  c.  8-3  (182.3)  ;  6  Geo.  IV.  c.  94  (1825) ;  5  &  6  Vict.  c.  39 
(1842) ;  40  &  41  Vict.  c.  39  (1877)  ;  .52  &  .53  Vict.  c.  45  (1889).  And  so  in  many  of 
the  United  States.  For  examples  of  the  American  statutes  as  to  factors  and  other 
persons  entrusted  with  possession  or  wnth  bills  of  lading,  warehouse  receipts,  and  the 
like,  see  Public  General  Laws  of  Maryland  (1888),  art.  2  (from  Laws  of  1825,  c.  182, 
and  of  1849,  c.  293);  Revi.sed  Statutes  of  New  York  (eighth  ed.)  2517-2518  (from 
Laws  of  1830,  c.  179)  ;  Brightly's  Purdon's  Digest  of  Penn.sylvania  Statutes  (twelfth 
ed.),  867  (from  Act  of  Apr.  14^  1834)  ;  Revised  Statutes  of  Ohio  (1880),  sees.  3214- 
3220  (from  Laws  of  1844,  p.  49) ;  Public  Statutes  of  Massachusetts  (1882),  c.  71  (from 
Statutes  of  1845.  c.  193).  — Ed. 


254  FENN   V.    HARRISON.  [CHAP.  IL 

He  sent  the  same  waterman  a  second  time  with  ready  money,  who  re- 
ceived the  goods, but  did  not  pay  for  them  ;  and  the  Chief  Justice  ruled 
the  sending  him  upon  trust  the  first  time  and  paying  for  the  goods,  was 
giving  him  credit,  so  as  to  charge  the  defendant  upon  the  second 
contract. 


FENN  V.  HARRISON. 
King's  Bench,  17'J0. 

[3  T.  R.  757.] 

On  a  motion  for  a  new  trial,  the  facts  appeared  to  be  these :  This 
was  an  action  for  money  lent,  mone}'  paid  hy  the  plaintiffs  to  the  use  of 
the  defendants,  and  money  had  and  received  b3-  the  defendants  to  the 
use  of  the  plaintiffs.  A  bill  of  exchange  was  drawn  by  Livesay  and 
Co.  on  Gibson  and  Johnson  in  favor  of  one  Norman,  which  came  by 
indorsement  to  the  defendants  ;  who,  being  desirous  of  getting  it  dis- 
counted, employed  Francis  Huet  for  that  purpose,  telling  him  to  carry 
it  to  market  and  get  cash  for  it,  but  that  they  would  not  indorse  it. 
F.  Huet  applied  to  his  brother  James  Huet  to  get  the  bill  discounted, 
informing  him  that  it  was  the  defendants'  bill,  and  that  though  they  did 
not  choose  to  indorse  it,  yet  he  added  (as  a  reason  of  his  own)  that,  as 
their  number  was  on  the  bill,  it  was  equivalent  to  an  indorsement ;  and 
that  he  (F.  Huet)  would  indemnif)-  him  if  he  indorsed  the  bill.  On  an 
application  b}'  James  Huet  to  the  plaintiffs,  and  on  his  indorsing  the 
bill,  without  which  indorsement  he  could  not  have  got  the  bill  discounted, 
the  plaintiffs  discounted  it ;  chiefly  relying  on  the  credit  of  Gibson  and 
Johnson,  for  at  that  time  the}'  did  not  know  that  the  defendants  had 
had  an}'  concern  with  the  bill.  Afterwards  however,  on  the  failure  of 
Gibson  and  Johnson,  the  plaintiffs,  having  heard  that  the  bill  had 
passed  through  the  defendants'  hands,  applied  to  them  for  payment, 
who  at  first  refused,  but  afterwards  promised  to  take  it  up  ;  and,  on 
their  not  doing  so,  this  action  was  brought  to  recover  the  amount  of  it. 
Lord  Kenyon,  before  whom  the  cause  was  tried,  after  reporting  the 
above  facts,  said  that  he  had  told  the  jur}'  that,  if  the}'  were  of  opinion 
that  James  Huet  had  made  himself  answerable  to  the  plaintiffs,  as  agent 
for  the  defendants,  that  was  a  sufficient  consideration  for  the  defend- 
ants' promise  ;  and  that  they  were  of  that  opinion,  and  found  a  verdict^ 
for  the  plaintiffs. 

A  rule  having  been  obtained  to  show  cause  why  the  verdict  should 
not  be  set  aside,  and  another  trial  granted,  on  the  ground  that  this  was 
nudum  pactum  ; 

^  This  was  a  second  verdict :  the  plaintiffs  had  obtained  a  former  verdict ;  hut  the 
Court  granted  a  new  trial  (without  much  discussion)  for  the  purpose  of  having  the 
eabject  better  considered.  —  Rep. 


SECT.  III.]  FKNN    V.    HAKKISON.  255 

Bmrcrofl  and  Erskine  now  showed  cause  against  it ;  contending 
that  the  promise  made  by  the  defendants  was  binding  on  them,  whetlier 
considered  as  given  by  them  when  under  a  moral  obligation  to  pay,  or 
as  having  received  a  legal  and  valuable  consideration  tor  it.  As  to  the 
first ;  it  cannot  be  denied  but  that  so  much  money  belonging  to  the 
plaintiffs  has  got  into  the  pockets  of  the  defendants,  for  which  they  have 
received  no  consideration.  This  therefore  was  a  sum  which  in  conscience 
and  morality  the  defendants  were  bound  to  pay  to  the  plaintiffs  ;  and 
that  alone,  though  there  were  strictly  no  legal  debt,  is  a  sufficient  con- 
sideration on  which  to  raise  a  promise.  But,  'idlj',  there  was  also  a 
legal  and  valuable  consideration  ;  because  the  plaintiffs  had  a  right  of 
action  against  James  lluet,  who  might  have  resorted  to  the  defendants 
for  an  indemnity  for  an  act  done  as  their  agent.  Yox  as  James  Huet, 
in  putting  his  indorsement  on  the  bill,  acted  by  the  direction  of  his 
brother,  who  was  the  avowed  agent  of  the  defendants,  even  admitting 
that  F.  Huet  exceeded  his  authority,  yet  as  he  acted  within  the  scope 
of  his  employment,  which  was  to  raise  money  on  the  bill  for  the  defend- 
ants, they  must  be  bound  by  his  acts :  and  the}'  have  a  remedy  over 
against  him.  But  it  does  not  appear  that  F.  Huet  did  exceed  his  au- 
thority' ;  for  the  only  restraint  imposed  on  him  by  the  defendants  was 
not  to  indorse  in  their  names,  because  they  did  not  wish  that  their 
names  should  appear  on  the  bill,  but  they  did  not  mean  to  restrain  him 
from  indorsing  the  bill,  or  anj'  other  person  for  him,  provided  the  money 
could  not  be  raised  on  any  other  terms  ;  and  that  turned  out  to  be  the 
case.  And  whatever  doubt  there  might  have  been  originally  whether 
either  of  these  agents  had  exceeded  his  authority,  yet  the  defendants 
by  their  subsequent  promise  have  recognized  and  adopted  the  acts 
of  their  agent,  and  made  themselves  immediately  answerable  to  the 
plaintiffs. 

Mingay  and  Zmc,  in  support  of  the  rule,  insisted  that  the  defend- 
ants were  under  no  moral  or  legal  obligation  when  they  made  the 
promise  in  question,  and  consequently  that  it  was  not  binding.  The 
argument  of  the  plaintiffs  proceeds  on  a  false  foundation  :  for  it  sup- 
poses that  Francis  Huet  was  not  circumscribed  in  his  authority  ;  whereas 
the  very  reverse  of  that  appears  from  the  facts  reported.  The  substance 
of  the  authority  given  by  the  defendants  to  F.  Huet  was  that  he  should 
sell  the  bill ;  for  that  they  would  not  make  themselves  liable  either  on 
the  bill  by  their  indorsement,  or  by  any  other  circuitous  mode.  The 
very  circumstance  of  their  refusing  to  indorse  the  bill  negatives  any  idea 
that  they  meant  to  make  themselves  responsible  through  the  indorse- 
ment of  any  other  person  for  them.  As  therefore  the  agent  exceeded 
his  authority,  the  principals  (the  defendants)  are  not  bound,  any  more 
than  the  owner  of  a  horse  would  be  by  the  warranty  of  his  servant, 
whom  he  authorized  to  sell  it  with  an  express  direction  not  to  warrant.^ 
Neither  were  the  defendants  under  any  moral  obligation  to  pay  ;  for  the 

1  Vide  Godb.  361,  2  Rol.  Kep.  270,  and  1  Rol.  Abr.  95,  V.  pi.  1.— Rep. 


256  FENN   V.   HARRISON.  [CHAP.  11. 

plaintiffs  took  the  bill  on  the  credit  of  Gibson  and  Johnson,  and  of  J. 
Huet ;  and  at  that  time  they  did  not  even  know  that  the  bill  had  passed 
through  the  hands  of  the  defendants.  Therefore  the  plaintiffs  have  no 
more  equit}-  than  the  defendants. 

Lord  Kenyon,  C.  J.  This  is  a  question  of  great  nicet}' ;  and  during 
the  trial  of  the  cause  I  entertained  considerable  doubts  upon  the  subject, 
and  even  at  this  moment  the  utmost  that  I  can  say  is  that  the  leaning 
of  my  mind  is  in  favor  of  the  verdict.  It  is  extremel}'  clear  tliat,  if  the 
holder  of  a  bill  of  exchange  send  it  to  market  without  indorsing  his 
name  upon  it,  neither  morality  or  the  laws  of  this  country  will  compel 
him  to  refund  the  money,  for  which  he  has  sold  it,  if  he  did  not  know 
at  the  time  that  it  was  not  a  good  bill.  If  he  knew  the  bill  to  be  bad, 
it  would  be  like  sending  out  a  counter  into  circulation  to  impose  upon 
the  world,  instead  of  the  current  coin.  In  this  case,  therefore  if  the 
defendants  had  known  the  bill  to  be  bad,  there  is  no  doubt  bat  that  they 
would  have  been  obliged  to  refund  the  money.  I  agree  with  the  defend- 
ants' counsel  that  Francis  Huet  was  circumscribed  in  his  authority; 
and,  if  that  circumstance  would  protect  the  defendants,  they  would  not 
be  answerable  in  this  action.  But  I  am  of  opinion  that  that  circum- 
stance is  not  a  decisive  answer  to  this  action.  For  I  ver^-  much  doubt 
the  case,  alluded  to  by  the  defendants'  counsel,  of  the  servant  warrant- 
ing the  horse  against  the  direction  of  his  master  ;  to  such  a  case  I  think 
the  maxim,  respondeat  superior  applies  ;  and  the  principal  has  his 
remedy  against  his  agent  for  his  misconduct.  But  the  difficulty  I  meet 
with  is  this,  this  is  not  an  action  wherein  Francis  Huet  calls  on  the 
defendants  for  an  indemnity;  if  it  were,  I  admit  that,  as  he  exceeded 
the  authority  of  his  principal,  he  could  not  recover  against  him.  But 
here  James  Huet,  who  is  an  innocent  man,  and  not  involved  in  the 
misconduct  of  his  brother  Francis  Huet,  has  a  claim  on  the  defendants. 
When  James  Huet  received  this  bill,  he  was  informed  thatitcanie  from 
the  defendants;  and,  on  his  asking  why  thej'  had  not  indorsed  it,  he 
was  told  by  Francis  Huet  that  the}'  had  done  that  which  was  equivalent 
to  it,  for  that  their  number  was  on  it;  in  this  indeed  he  was  mistaken. 
However  he  told  James  Huet  that  he  should  be  safe,  and  that  he  would 
guarantee  him,  on  which  the  latter  indorsed  his  name  on  the  bill,  and 
thus  indorsed,  it  got  into  the  hands  of  the  plaintiffs.  Then  it  is  clear 
that  the  plaintiffs  miglit  resort  to  James  Huet  for  payment :  and  that 
brings  it  to  this  question,  whether  James  Huet,  who  took  the  bill  from 
Francis  Huet,  knowing  him  to  be  the  agent  of  the  defendants,  has  not 
a  right  to  call  on  the  defendants,  who  constituted  Francis  Huet  their 
agent,  although  that  agent  exceeded  his  authorit}-?  I  think  that  he  has. 
And  if  so,  that  is  a  good  consideration  for  the  promise  made  by  the 
defendants. 

AsHHURST,  J.  Although  I  have  had  doubts  upon  this  case,  I  am  of 
opinion  that  the  defendants  are  not  liable.  If  Francis  Huet  had  been 
the  general  agent  of  the  defendants,  I  admit  that  they  would  be  charge- 
able with  his  acts  :  but  it  appears  from  the  evidence  that  he  was  con- 


SECT.  III.]  FENN   V.   HAREISON.  257 

stitiited  their  particular  agent  with  a  circumscribed  authority.  And 
that  brings  it  to  the  case  put  at  the  bar  of  the  sale  of  a  horse  ;  where  I 
take  the  distinction  to  be,  that,  if  a  person  keeping  livery  stables,  and 
having  a  horse  to  sell,  directed  his  servant  not  to  warrant  him,  and  the 
servant  did  nevertheless  warrant  him,  still  the  master  would  be  liable 
ou  the  warrant3',  because  the  servant  was  acting  within  the  general 
scope  of  his  authority,  and  the  public  cannot  be  supposed  to  be  cogni- 
zant of  an}-  private  conversation  between  the  master  and  servant :  ^  but 
if  the  owner  of  a  horse  were  to  send  a  stranger  to  a  fair  with  express 
directions  not  to  warrant  the  horse,  and  the  latter  acted  contrary  to  the 
orders,  the  purchaser  could  only  have  recourse  to  the  person  who  ac- 
tually sold  the  horse,  and  the  owner  would  not  be  liable  on  the  warranty, 
because  the  servant  was  not  acting  within  the  scope  of  his  employment. 
And  that  is  like  this  case  :  Here  F.  Huet,  who  was  employed  b}'  the 
defendants  to  get  the  bill  discounted,  was  expressly  directed  by  them 
not  to  indorse  it,  which  was  equivalent  to  saying  that  they  would  not 
pa}'  it.  I  agree  that  F.  Huet  would  be  liable  to  James  Huet,  either  as 
for  money  paid  to  his  use,  or  on  the  express  promise  to  guarantee  :  but 
there  it  stops  ;  for,  as  to  the  defendants,  he  paid  the  money  in  his  own 
wrong,  because  the  authority  which  they  gave  was  exceeded.  There- 
fore, on  the  whole,  I  think  that  the  defendants  are  neither  liable  on 
account  of  the  indorsement  made  by  James  Huet,  nor  on  their  subse- 
quent promise  to  pa}',  because  not  being  under  any  obligation,  it  was 
nudum  pactum. 

BuLLEK,  J.  I  confess  that  this  dors  not  appear  to  me  to  be  a  case  of 
much  difficulty  ;  for,  when  the  facts  are  understood,  the  consequences 
follow  of  course.  The  result  of  my  opinion  is  that,  as  between  these 
parties,  the  plaintiffs  have  no  conscience  or  equit\\  and  that  the  defend- 
ants are  not  under  an}'  legal  or  moral  obligation  whatever  to  pay  the 
amount  of  this  bill.  I  consider  this  action  as  a  new  attempt ;  and  it  is 
difficult  to  say  to  what  extent  it  may  be  carried,  if  it  be  encouraged. 
In  the  case  of  a  bill  of  exchange,  we  know  precisely  what  remedy  the 
holder  has,  if  the  bill  be  not  paid  ;  his  security  appeals  wholly  on  the 
face  of  the  bill  itself;  the  acceptor,  the  drawer,  and  the  indorsers,  are 
all  liable  in  their  turns,  but  they  are  only  liable  because  they  have 
written  their  names  on  the  bill.  But  this  is  an  attempt  to  make  some 
other  persons  liable,  whose  names  do  not  appear  on  the  bill,  and  that 
under  circumstances  very  alarming  to  mercantile  houses  through  whose 
hands  bills  of  exchange  pass.  For  even  indorsers,  whose  names  are  on 
the  bill,  can  only  be  called  on  after  notice  of  non-payment,  and  without 
delay.  But  if  these  defendants  be  answerable,  by  what  rule  are  we  to 
be  guided  ;  what  notice  is  to  be  given  to  them ;  are  they  to  be  liable  at 
any  distance  of  time?  I  think  this  is  a  dangerous  attempt,  and  ought 
to  be  discouraged  ;  for  in  all  cases  arising  on  bills  of  exchange,  there 
should  be  some  limitation  of  time,  beyond  which  none  of  the  parties 

1   Vide  10  Mod.  109.  — Rep. 
17 


258  FENN   V.    HARRISOX.  [CHAP.  II. 

should  be  called  on.  In  this  case  the  defendants  said  in  the  most  ex- 
press terms  that  the}'  would  not  make  themselves  liable  on  the  bill ;  for 
when  they  told  F.  Iluet  that  they  would  not  indorse  it,  it  was  the  same 
as  if  the}'  had  told  him  in  terms  to  sell  it.  When  a  person  refuses  to 
indorse  a  bill,  it  cannot  be  implied  that  he  means  to  make  himself  liable 
on  the  bill,  much  less  in  a  more  extensive  way  than  if  he  had  indorsed 
it.  The  authority  of  F.  Iluet  was  circumscribed  ;  he  was  mistaken  in 
what  he  said  to  J.  Iluet ;  he  did  not  even  desire  J.  Huet  to  act  on  the 
authority  of  the  defendants  ;  he  thought  that  the  defendants  would  be 
liable;  but  that  was  merely  his  opinion.  F.  Iluet  therefore  did  not 
pledge  the  names  of  the  defendants  in  any  way  whatever  :  consequently 
the}'  were  under  no  obligation  whatever  to  promise,  and  it  is  nudum 
pactum.  I  agree  with  my  brother  Ashhurst,  that  there  is  a  wide  dis- 
tinction between  general  and  particular  agents.  If  a  person  be  appointed 
a  general  agent,  as  in  the  case  of  a  factor  for  a  merchant  residing  abroad, 
the  principal  is  bound  by  his  acts.  But  an  agent,  constituted  so  for  a 
particular  purpose  and  under  a  limited  and  circumscribed  power,  cannot 
bind  the  principal  by  any  act  in  which  he  exceeds  his  authority ;  for 
that  would  be  to  say  that  one  man  may  bind  another  against  his  con- 
sent. There  is  a  class  of  cases,  which  have  been  thought  to  bear  ex- 
tremely hard  upon  masters,  who  are  held  liable  for  the  misfeasance  of 
their  servants  in  driving  their  carriages  against  those  of  third  persons : 
but  those  cases  have  been  determined  on  the  ground  that  it  must  be 
presumed  that  the  servants  have  acted  under  the  orders  of  their  masters. 
But  suppose  a  master  ordered  his  servant  not  to  take  his  horses  and 
carriage  out  of  the  stable,  and  the  latter  went  in  defiance  of  his  master's 
orders  ;  there  is  no  authority  which  says  that  the  master  shall  be  liable 
for  any  injury  done  to  another  by  such  an  act  of  the  servant :  though 
indeed  if  the  master  had  ordered  the  servant  to  go  a  particular  journey, 
and  in  the  course  of  it  the  latter  did  an  injury  to  some  third  person,  the 
authorities,  which  have  been  determined,  say  that  the  master  is  liable 
in  that  case. 

Grose,  J.  As  I  have  had  great  doubts  on  this  case,  I  am  glad  to 
have  heard  the  opinions  of  my  Brothers  before  I  deliver  my  own.  The 
question  is,  whether  at  the  time  when  the  defendants  made  this  promise 
it  was  nudum  pactum,,  or  whether  there  were  any  legal  consideration 
for  it.  In  the  first  place,  this  is  a  new  attempt  to  make  the  defendants 
liable  as  if  they  had  indorsed  the  bill,  when  in  fact  they  refused  to  in- 
dorse it.  The  substance  of  the  conversation  between  the  defendants 
and  F.  Huet  was  this ;  they  said,  "  Take  the  bill,  get  it  discounted,  and 
sell  it,  but  we  will  not  be  answerable  to  the  holder  of  the  bill  in  any 
way  whatever."  If  that  be  so,  undoubtedly  they  were  not  liable  to  the 
bolder ;  and  then  the  subsequent  promise  is  without  consideration, 
unless  something  passed  at  the  time  when  it  was  made  to  raise  a  con- 
sideration. But  nothing  is  stated  to  show  that  the  defendants  received 
any  benefit,  or  that  the  plaintiffs  renounced  any  advantage.  A  strong 
circumstance  in  this  case  is,  that  at  the  time  of  the  original  transaction 


SECT.  III.]  FENN   V.    HARRISON.  259 

the  credit  of  Gibson  r.  Johnson  was  much  relied  on.  Then  there  is  no 
pretence  to  impute  fraud  to  an^-  of  the  parties  ;  and,  if  not,  the  moraht}' 
follows  the  law.  I  consider  this  as  a  new  and  dangerous  attempt  to 
make  the  defendants  liable,  and  that  even  beyond  the  extent  to  which 
indorsers  are ;  and  if  we  were  to  make  them  liable,  it  would  be  difficult 
to  sa}'  what  law  attaches  on  them.  As  to  the  distinction  between  a 
general  and  a  particular  agency  ;  I  think  it  was  pointedly  put  b}-  m}' 
Brother  Ashhurst,  with  whom  I  entirely  agree. 

Mule  absolute.^ 


FENN  V.   HARRISON. 
King's  Bench.     1791. 

[4  r.  AM 77.] 

On  the  third  trial  of  this  cause  at  the  sittings  after  last  term  before 
Lord  Kenyon,  the  same  evidence  was  given  as  on  the  second  trial,  with 
this  difference,  that,  when  the  defendants  desired  F.  Huet  to  get  the 
bill  discounted,  they  did  not  sa}-  that  they  would  not  indorse  it.  The 
jury  found  a  verdict  for  the  plaintiffs,  which  the  defendants'  counsel 
moved  in  this  term  to  set  aside  :  but,  after  arguments  at  the  bar  by 
JBea)'crqft,  Erskine,  and  Haldwin,  in  support  of  the  verdict,  and  Min- 
gay,  and  Xaio,  on  the  other  side. 

The  Court  were  unanimously  of  opinion  that  the  rule  for  setting  aside 
the  verdict,  and  for  granting  a  new  trial,  should  be  discharged  ;  on  the 
ground  that,  as  the  defendants  had  authorized  F.  Huet  to  get  the  bill 
discounted,  without  restraining  his  authorit}-  as  to  the  mode  of  doing  it, 
they  were  bound  b}-  his  acts  ;  and  that,  if  it  were  doubtful,  from  the 
conversation  which  passed  between  the  defendants  and  F.  Huet  at  the 
time  when  they  applied  to  him  to  get  the  bill  discounted,  what  authority 
the  defendants  intended  to  confer  on  F.  Huet  in  this  transaction,  their 
subsequent  conduct,  in  promising  to  pa}'  the  bill,  was  decisive.      But 

Ashhurst,  Buller,  and  Grose,  Justices,  said  that,  unless  the  evi- 
dence on  this  trial  had  varied  from  that  given  before,  they  should  have 
continued  to  entertain  the  same  opinion  which  they  delivered  on  the 
former  occasion. 

Eide  to  grant  a  new  trial  discharged. 

1  Vide  post,  4  vol.  177,  s.  c. —  Rep. 


260  GAEDNER   V.    BAILLIE.  [CHAP.  IL 


GARDNER  v.   BAILLIE. 
King's  Bench,     1790. 

[6  T.  li.  591.] 

This  was  an  action  on  a  bill  of  exchange,  drawn  b}'  the  plaintiff  on  the 
4th  of  September,  1793,  for  £793  7s.  Qd.  on  the  defendant  by  the  name 
and  description  of  Mrs.  C.  Baillie,  executrix  of  J.  B.,  accepted  by  E. 
Thornton  for  and  on  behalf  of  the  defendant,  it  being  averred  that 
Thornton  was  duly  authorized  by  the  defendant  to  accept  the  same  on 
her  account. 

At  the  trial  before  Lord  Ken  yon  at  the  Sittings  after  the  last  term  it 
was  proved  on  behalf  of  the  plaintiff  that  Thornton,  who  acted  under  a 
letter  of  attorney-  from  the  defendant,  accepted  the  bill  in  question, 
which  was  drawn  and  accepted  for  a  debt  due  to  the  plaintiff  from  the 
defendant's  testator  ;  and  evidence  was  offered  to  prove  that  the  defend- 
ant had  paid  other  bills  drawn  on  her  by  other  creditors  of  J.  Baillie, 
and  accepted  on  her  account  b}'  Thornton  who  on  those  occasions  also 
acted  under  this  power  of  attorney,  but  Lord  Kenyon  thought  the 
evidence  inadmissible.  A  verdict  was  taken  for  the  plaintiff  for  the 
amount  of  the  bill,  with  liberty  for  the  defendant  to  move  to  set  it  aside 
and  to  enter  up  a  nonsuit,  if  this  Court  should  be  of  opinion  that  the 
plaintiff  ought  not  to  recover.  The  principal  question  in  the  cause  was, 
whether  Thornton  had  power  under  this  letter  of  attornej'  to  accept  bills 
of  exchange  for  the  defendant ;  because,  if  he  had,  the  verdict  was  right. 
By  the  letter,  after  reciting  that  the  defendant  had  been  appointed  ex- 
ecutrix of  J.  Baillie,  who  was  entitled  to  considerable  sums  of  money 
on  mortgage  bonds,  bills,  notes,  unsettled  accounts,  &c.  the  defendant 
appointed  Thornton  her  attorney,  as  executrix,  to  ask,  demand,  sue  for, 
and  receive  all  sums,  &c.  "  which  at  the  time  of  J.  B.'s  death  were  due 
to  him  and  which  were  then  due  to  her  as  executrix  ; "  in  her  name,  as 
executrix,  to  adjust  and  settle  all  accounts,  differences,  &c.,  wherein 
she,  as  executrix,  was  interested  ;  to  submit  the  same  to  ai'bitration 
(if  necessary),  and  for  that  purpose  in  her  name  as  executrix  to  execute 
an}'  bond,  &c. ;  to  execute  for  her  and  in  her  name,  as  executrix,  assign- 
ments of  mortgages,  receipts,  releases,  &c.  ;  for  her  and  in  her  name 
as  executrix  and  agreeabl}'  to  the  due  course  and  order  of  law  to  pay 
all  debts,  &c.  due  from  her  as  executrix,  whether  on  mortgage  bond, 
bill,  note,  or  otherwise  ;  and  generall}'  for  her,  as  executrix,  to  do  all 
such  further  acts  for  receiving  debts  and  discharging  the  powers  given 
b}-  the  letter  of  attorney  ;  and  giving  full  power  to  ^o  and  act  ''  touching 
and  concerning  all  or  an}'  of  the  said  premises  as  effectually  to  all  in- 
tents, constructions,  and  purposes,  whatsoever,  as  she,  as  executrix, 
could,  &c." 

A  motion  was  accordingly  made  to  set  aside  the  verdict ;  and  it  was 
argued  on  a  former  day  b}- 


SECT.  III.]  HOWARD   V.    BAILLIE.  261 

ErsJcine  and  Park  for  the  plaintiff,  and 

Gibbs,  Chambre^  and  Giles,  for  tlie  defendant ; 

The  former  contending  that,  as  Thornton  was  expressly  authorized 
to  receive  and  pay  all  sums  due  to  and  from  tlie  defendant,  to  refer  an}' 
matters  in  dispute  between  her  and  any  other  person  to  arbitration,  and 
generally  to  do  all  further  and  other  lawful  and  reasonable  acts  as  to 
him  should  seem  proper,  he  had  power  to  bind  the  defendant  by  accept- 
ing the  bill  in  question  on  her  account,  it  being  for  a  legal  debt  due 
from  her  as  executrix.  The  point,  relative  to  the  admissibility  of  the 
evidence  rejected,  was  not  now  insisted  on. 

For  the  defendant  it  was  argued  that  the  accepting  of  this  bill  by 
Thornton  was  an  excess  of  his  authority  not  warranted  hy  the  power, 
because  it  would  charge  her  in  her  own  right,  whereas  the  letter  of 
attorney  onl}'  authorized  Thornton  to  bind  her  as  executrix,  the  letter 
being  cautiously  drawn  with  that  view. 

The  Court  said  that  though  they  had  no  doubt  about  the  case,  yet  as 
there  was  a  similar  cause  (said  to  be)  depending  in  the  Court  of 
Common  Pleas  on  the  construction  of  the  same  letter  of  attorne}-,  it 
would  be  proper  not  to  decide  this  case  until  they  had  had  an  oppor- 
tunity' of  conferring  with  the  judges  of  that  court  on  the  subject.  And 
on  this  dav, 

Lord  Kenyon,  C.  J.,  said  there  was  no  reason  wb}-  the  Court  should 
any  longer  suspend  their  judgment  in  this  case,  as  the}'  were  all  clearly 
of  opinion  that  Thornton  had  no  authority  to  bind  the  defendant  by 
accepting  the  bill  of  exchange  on  her  account,  and  consequently  that 
the  action  could  not  be  maintained.  That  they  had  consulted  with  the 
judges  of  the  court  of  Common  Pleas,  who  authorized  him  to  sav  that 
the}'  concurred  in  this  opinion  respecting  the  construction  of  the  letter 
of  attorney,  but  that  there  were  other  circumstances  in  that  case. 

Mule  absolute. 


HOWARD  V.  BAILLIE. 
Common  Pleas.     1796. 

[2  H.  Bl.  618.] 

The  facts  of  this  case,  and  such  of  the  arguments  as  were  material, 
are  stated  in  the  following  judgment,  which  was  thus  delivered  in  the 
name  of  the  Court  by  the  Lord  Chief  Justice  :  —  ^ 

A  new  trial  has  been  moved  for  in  this  cause,  in  which  the  plaintiffs, 
being  the  drawers  of  a  bill  of  exchange  upon  the  defendant,  dated  10th 
January,  1794,  for  £290  18s.  Zd.  value  in  account  with  James  Baillie 
(whose  executrix  the  defendant  is),  payable  upon  the  1st  of  September, 

1  Sir  James  Ei're.  —  Ed. 


262  HOWARD   V.   BAILLIE.  [CHAP.  IL 

1795,  to  their  own  order,  and  which  bill  of  exchange  was  accepted  by 
the  defendant  by  Edmund  Thornton  her  procurator,  having  recovered  a 
verdict  for  £330  damages.  The  ground  made  for  this  application  is, 
that  upon  the  case  in  evidence  Mr.  Thornton  was  not  the  procurator  for 
the  defendant  duly  authorized  to  accept  this  bill  for  her.  The  case  was 
shortly  this  :  Mrs.  Colin  Baillie,  being  the  sole  acting  executrix  of 
James  Baillie,  who  died  possessed  of  a  large  West  India  and  other 
property,  and  largely  indebted  to  many  persons,  and  among  others  to 
the  plaintiffs  in  the  sum  of  £290  18.s\  3(/.,  executed  a  power  of  attorney 
to  George  Baillie  and  Edmund  Thornton  jointly  and  severally  to  act 
for  her  in  collecting  and  getting  in  the  estate  of  the  deceased,  and  pay- 
ing his  debts.  These  two  persons  acted  under  the  power.  The  business 
respecting  the  estate  was  transacted  by  one  or  other  of  them  at  the 
counting-house  where  James  Baillie's  business  was  carried  on  in  his 
lifetime,  and  where  the  business  of  a  new  firm,  at  the  head  of  which 
was  George  Baillie,  was  also  carried  on  after  the  death  of  James  Baillie. 
At  this  counting-house  the  bill  in  question  was  accepted,  in  the  name 
of  the  defendant,  by  Edmund  Thornton  one  of  the  attorneys,  as  her 
procurator,  in  payment  of  a  debt  due  from  the  estate  of  James  Baillie  ; 
and  this  was  a  mode  adopted  by  the  attorneys,  [whether  with  or  with- 
out the  privity  of  Mrs.  Baillie  at  present  I  do  not  stay  to  inquire]  for 
the  payment  of  the  tradesmen's  bills  due  from  the  estate.  For  the  de- 
fendant it  is  insisted,  that  the  attorneys  had  rti-  authority  to  provide  for 
the  payment  of  the  testator's  debts  in  this  manner,  that  they  were  to 
administer  the  assets  for  the  executrix,  but  that  they  could  do  no  act 
whereby  she  should  become  chargeable  with  the  debts  in  her  own  right, 
and  particularly  that  they  were  not  authorized  to  give  a  security  for  the 
payment  of  any  debts  in  her  name.  This  makes  it  necessary  to  look 
into  the  power  of  attorney,  to  view,  and  to  consider  the  general  scope 
of  it,  and  to  examine  the  different  parts  of  which  it  consists,  as  far  as 
the}'  may  seem  to  bear  upon  the  present  question.  The  general  scope 
of  it  is  to  put  the  whole  estate  into  the  hands  of  the  attorneys,  to  commit 
the  collecting  of  it,  and  the  disposition  of  it  entirel}'  to  them,  to  delegate 
to  them  all  the  authority  that  the  executrix  possessed,  and  to  constitute 
them,  as  far  as  it  was  possible  to  constitute  them,  executors  in  her 
name.  The  first  part  of  the  instrument  respects  more  particularlj*  the 
collecting  of  the  estate  ;  and  powers  more  ample  could  not  be  devised, 
nor  confidence  more  unlimited  be  reposed  and  expressed.  The  authority 
to  pay,  discharge,  and  satisfj'  debts  is  described  in  few  words  and  more 
general  terms,  and  with  a  qualification  properly  applicable  to  this  branch 
of  the  power,  "  agreeably  to  the  due  order  and  course  of  law,  to  pay, 
discharge,  and  satisf}',"  vrhich  I  consider  as  tantamount  to  saying,  in  a 
course  of  administration.  Then  follows  a  general  authority  to  do  such 
further  lawful  and  reasonable  acts,  for  the  better  performing  the  powers 
and  authorities  intended  to  be  given,  as  to  them  should  seem  meet,  the 
executrix  professing  to  give  to  them  her  full  and  whole  power  and  author- 
ity to  do  and  act  touching  and  concerning  all  or  any  of  the  premises,  as 


SECT.  III.]  HOWARD   V.    BAILLIE.  263 

fully  and  effectually  to  all  intents,  constructions,  and  purposes,  as  she 
as  executrix  could  do  if  personally  present,  and  undertaking  to  ratify 
all  that  the  attorneys  should  lawfully  do  in  and  about  the  premises. 
There  is  also  power  to  appoint  attorneys  to  act  in  the  name  of  the  ex- 
ecutrix.    The  authority  to  pay  debts,  upon  the  first  view  of  it,  seems 
to  be  more  confined  and  specified  than  the   authority  to   collect  the 
eflfects,  but  if  we  consider  it  more  attentively,  we  shall  find  that  the  ef- 
fect of  this  part  of  the  instrument  is  to  commit  the  application  of  the 
personal  estate  in  paj'ment  of  debts  to  those  attorney's  absolutely  and 
exclusively;  and  it  will  also  be  found,  without  the  assistance  of  general 
words,  that  an   authority  of  this  nature  necessarily  includes  medium 
powers,  which  are  not  expressed.     By  medium  powers,  I  mean  all  the 
means  necessary  to  be  used,  in  order  to  attain  the  accomplishment  of 
the  object  of  the  principal  power,  which  in  this  case  is  the  paying,  satis- 
fying, and  discharging  the  testator's  debts.    It  must  occur  to  every  man 
who  reflects  upon  the  nature  of  this  trust,  that  numberless  arrange- 
ments would  be  to  be  made  by  those  who  were  to  execute  it,  accounts 
to  be  settled,  disputed  claims  to  be  adjusted,  unjust  ones  to  be  resisted, 
suits  at  law  and  in  equity  to  be  instituted  and  defended.  pa3-raents  to 
be  postponed  or  installed,  according  to  the  state  of  the  fund,  and  per- 
haps if  the  estate  should  be  discovered  to  be  insolvent,  a  distribution  to  be 
made  among  the  creditors  in  equal  degree,  pari  passu.    These  and  many 
other  subordinate  powers,  though  not  expressly  given,  as  in  the  former 
part  of  the  instrument,  must  be  understood  to  be  included  in  this  power 
to  pay  debts  ;  and  I  take  it  to  be  clear,  that  in  the  construction  of  such 
powers  the}'  are  included.    Our  books  say  that  these  kind  of  authorities 
are  to  be  pursued  strictly  ;  they  instance  that  an  authority  given  to  three 
cannot  be  executed  by  a  less  number  than  the  whole,  and  the  St.  of  21 
H.  VIII.  c.  4,  was  thought  necessary  to  be  made,  to  remedy-  the  inconveni- 
ence arising  from  it  in  the  case  of  executors,  where  some  have  declined 
to  act.     But  our  books  also  sa\',  that  they  are  to  be  so  construed  as  to 
include  all  the  necessary  means  of  executing  them  with  effect.    Thus  an 
authorit}'  to  receive  and  recover  debts  includes  a  power  to  arrest.     In 
such  a  case  as  the  present,  which  is  not  that  of  mere  ministerial  author- 
ity capable  of  being  defined  and  executed  strictly,  but  a  case  where  the 
whole  care  of  the  administration  is  delegated  by  the  executrix  to  the 
attorneys,  and  all  the  means  of  executing  the  office  of  executrix  put 
into  their  hands,  I  am  of  opinion  that  both  the  particular  provisions 
and  the  general  words  ought  to  receive  the  most  liberal  construction, 
which  construction  should,  as  far  as  possible,  place  the  attornej'S  where 
the  executrix  intended  to  place  them,  in  her  room  and  stead,  invested 
with  all  her  authority'  and  with  all  her  discretion.     Assuming  then  that 
this  authority  to  pay  debts  is  larger  and  more  comprehensive  in  its 
nature,  than  the  words  construed  very  strictly  would  import,  and  that 
it  implies  authority  to  make  all  necessary  arrangements  which  the  ex- 
ecutrix herself  might  make,  in  order  to  the  payment  of  the  debts.  I 
ask,  among  the  arrangements  which  it  may  be  necessar}'  for  an  exe«^U' 


264  HOWARD    V.    BAILLIE.  [CHAP.  II. 

trix,  or  for  those  to  whom  she  has  delegated  all  her  authority  touching 
the  payment  of  the  testator's  debts,  to  make,  is  there  one  more  likely 
to  occur,  more  useful,  in  many  cases  more  necessary,  than  that  they 
should  ask  and  obtain  from  the  creditors  of  tlie  estate,  time  for  pay- 
ment of  the  debts,  when  the  time  given  ma}-  prevent  all  the  vexation 
and  expense  of  a  struggle  for  priority?  Tliat  an  executrix  herself 
might  make  this  arrangement,  no  one  can  doubt :  that  it  is  also  neces' 
sarj'  that  the}^  who  are  to  have  all  the  funds  in  tiieir  hands,  who  know, 
and  are  the  only  persons  who  can  know  within  what  time  those  funds 
can  be  got  in,  and  who  have  the  whole  application  of  them  entrusted  to 
their  care,  who  represent  the  executrix,  and  in  effect  are  themselves 
the  executors,  should  have  it  in  their  power  to  make  it,  is  equally'  clear. 
The  consequence  of  such  an  arrangement  in  either  ease,  and  indeed  in 
ever}'  one  of  the  instances  which  I  before  put,  would  be,  that  the  ex- 
ecutrix might  by  possibilit}'  become  personally  and  in  her  own  right 
chargeable  with  debts,  as  she  might  become  chargeable  in  a  variety  of 
other  cases  expressly  within  the  power  of  attorney.  But  upon  what- 
ever ground,  and  bv  whatever  medium,  in  the  instance  of  postponed 
debts,  this  personal  charge  is  produced,  the  debt  still  remains  a  debt 
due  from  the  estate,  and  pa3'able  out  of  the  assets.  Such  an  arrange- 
ment amounts  to  an  admission,  that  at  the  expiration  of  the  credit 
given,  there  will  be  assets  sufficient  to  pay  the  debt,  which  still  remains 
a  charge  upon  the  executrix  as  executrix,  and  only  becoming  eventually' 
a  charge  upon  her  in  her  own  right,  if  it  should  turn  out  that  by  some 
unforeseen  event  there  should  be  a  failure  of  assets,  or  by  misconduct  a 
devastavit  incurred.  If  we  are  to  argue  from  the  intent  of  the  instru- 
ment, to  be  collected  from  the  particular  wording  of  it,  I  ask,  Can  it  be 
reasonably  doubted,  whether  this  executrix  who  trusted  the  whole  of 
this  large  estate  in  the  hands  and  to  the  care  of  these  attorneys,  under 
her  personal  responsibility  for  every  shilling  of  the  amount  of  it,  if  they 
should  fail  in  the  collection  or  application  of  it,  would  have  hesitated 
to  commit  to  their  discretion,  upon  their  view  of  the  state  of  the  prop- 
ert}',  and  of  the  time  within  which  it  could  be  realized,  the  asking  and 
obtaining  from  the  creditors  twenty  months  further  time  for  the  pay- 
ment of  their  respective  debts?  I  ask,  Whether  the  executrix  did  not 
mean  to  throw  all  the  burden  of  the  administration  of  the  effects  upon 
the  attorneys?  and.  Whether  there  was  not  a  convenient  and  necessary 
discretion  to  be  intrusted  to  them?  When  it  is  objected  that  the 
authority  given  is  restrained  to  an  authority  to  pa}-  in  her  stead  as 
executrix,  and  *■'  agreeably  to  the  due  order  and  course  of  law,"  I  an- 
swer, that  taking  these  words  to  amount  to  a  direction  to  the  attorney's 
to  pay  in  a  course  of  administration,  they  were  not  meant,  to  control, 
nor  can  they  control  the  authority  of  the  attorneys  in  any  thing  neces- 
sarj'  to  that  payment,  in  a  course  of  administration.  It  is  perfectly 
clear,  notwithstanding  this  direction,  that  the}'  might  take  time  for  the 
payment  of  the  debts,  having  assets  to  pay  them  when  the  time  came, 
for  then  they  would  pay  in  a  course  of  administration,  and  there  can  be 


SECT.  III.]  HOWARD    V.    BAILLIE.  265 

nothing  repugnant  to  that  direction  in  asking  for  the  time,  even  though 
the  assets  should  afterwards  fail,  because  it  is  a  step  taken  upon  a  con- 
viction tliat  there  will  be  as.sets  to  be  administered  in  a  due  course  of 
law,  and  to  the  end  that  they  may  be  administered.  Where  the  execu- 
trix has  entrusted  all  to  the  care  of  her  attorneys,  with  a  responsibility 
in  herself  to  the  extent  of  all  the  propert}',  it  is  a  small  circumstance  to 
be  observed  upon,  that  though  the  payment  of  a  debt,  not  in  a  course 
of  administration,  is  within  the  authority  as  between  the  creditor  and 
the  executrix,  yet  that  she  might  be  obliged  to  answer  to  other  creditors 
as  for  a  devastavit  in  respect  of  it.  In  truth,  this  direction  to  pay  in  a 
course  of  administration  ma}'  operate  as  between  her  and  her  attorneys, 
but  as  against  creditors  receiving  payment  of  their  debts  it  seems  to  me 
that  it  can  have  no  operation.  Much  stress  was  laid  in  the  argument 
on  there  being  no  express  power  given  to  the  attorneys  to  sign  accept- 
ances for  the  executrix,  but  the  objection  proves  too  much.  As  well 
might  it  be  argued,  that  if  the  cash  of  the  estate  was  kept  at  a  banker's, 
the  attorneys  should  not  draw  for  it  in  her  name.  The  true  question 
appears  to  me  to  be,  Whether  the  attorneys  under  this  power  have  a 
discretion  to  agree  with  creditors  for  the  forbearance  of  tlie  debts?  and 
that  the  rest  of  the  difficult}'  has  more  of  form  than  substance  in  it.  If 
the  foundation  is  well  laid,  the  application  of  the  argument  to  the  par- 
ticular case  in  question  seems  obvious  and  decisive.  The  acceptance 
of  tliis  bill  of  exchange  is  called  a  security,  but  is  in  substance  merely 
a  mode  of  taking  twenty  months'  further  time  for  payment  of  a  debt, 
due  from  the  testator  to  these  plaintiffs,  and  payable  out  of  the  assets. 
Had  the  twenty  months'  credit  been  taken  by  a  mere  agreement  to  for- 
bear, and  she  had  been  sued  as  executrix  after  the  expiration  of  the 
time  given,  she  could  not  have  \AQSn\Qd  plen(i  adniinistravit,  because  by 
taking  the  credit  she  admitted  assets.  There  is  a  formal  difference  onl}' 
between  that  case  and  the  present,  the  acceptance  appears  upon  the 
face  of  the  bill  to  be  an  acceptance  by  her  as  executrix,  and  the  con- 
sideration of  it  is  value  in  account  with  testator.  If  she  is  sued  in  her 
own  name,  and  not  as  executrix,  she  is  so  sued  upon  the  same  principle 
upon  which  assignees  of  a  bankrupt  are  sued  for  what  they  do  after 
the}'  become  assignees,  for  the  estate,  and  at  the  expense  of  the  estate. 
The  debt  is  still  substantially  the  debt  of  the  testator,  which  when  paid 
by  her  will  be  carried  to  the  account  of  the  testator's  estate.  I  think 
she  might  have  been  sued  as  executrix  upon  this  acceptance,  but  as  she 
could  not  in  that  case  have  availed  herself  of  a  plea  of  plene  adminis- 
travit,  it  was  not  necessary  so  to  sue  her.  In  neither  case  could  any 
defence  be  made  against  the  demand,  and  in  truth  no  defence  ought  to 
be  made,  for  the  creditor  who  accepts  this  kind  of  payment  purchases 
the  benefit  of  it,  the  estate  has  had  its  advantage,  and  this  defendant 
as  executrix  has  had  her  advantage  of  the  forbearance.  I  have  hitlierto 
avoided  any  mention  of  the  particular  circumstances  of  this  case,  which 
very  strongly  imply  the  knowledge  of  the  defendant  and  her  approba- 
tion of  the  making  these  acceptances,  but  here  they  ought  to  have  their 


266  BATTY   V.    CAKSWELL.  [CHAP.  II 

weight,  b}"  way  of  answer  to  the  suggestion  of  possible  inconvenience 
which  the  suli'ering  this  verdict  to  stand  might  produce.  I  confess  that 
they  appeared  to  me  upon  the  trial,  and  do  now  upon  the  best  con- 
sideration that  I  can  give  to  the  case,  appear  to  me  to  be  strong  enough 
to  raise  an  implication  of  a  special  procuration,  if  that  were  thought 
necessary,  from  the  executrix  to  her  attorneys,  to  authorize  these 
acceptances,  and  that  the  defence  now  made  upon  the  strict  law  is 
against  conscience  and  good  faith.  I  have  already  taken  an  oppor- 
tunity of  observing  on  the  case  depending  in  the  Court  of  King's  Bench, 
and  what  I  suppose  would  be  the  decision  of  that  court.  I  will  only 
now  repeat,  that  we  understand  that  it  did  not  appear  in  that  case, 
that  the  acceptance  was  given  for  the  payment  of  a  debt  due  from  the 
testator,  the  payment  of  which  had  been  agreed  to  be  postponed,  or  in- 
deed that  it  did  in  anj-  manner  touch  or  concern  the  execution  of  this 
trust,  which  is  the  great  and  distinguishing  feature  between  that  case 
and  the  present.  We  agree  that  this  power  cannot  authorize  the  giving 
acceptances  in  the  name  of  Mrs.  Baillie,  which  are  neither  expressed 
uor  proved  to  be  in  payment  of  the  testator's  debts.  The  case  now  in 
judgment  in  this  court  rests  on  its  own  particular  circumstances,  upon 
which  we  decide.  Rule  discharged.^ 


BATTY  V.   CARSWELL. 
Supreme  Court  of  New  York.     1806. 

[2  Johns.  48.] 

This  was  an  action  of  assumpsit,  on  a  promissory  note,  alleged  to 
have  been  made  by  the  defendants.  The  note  was  dated  the  23d  of 
October,  1801,  for  the  payment  of  $250,  in  GO  days.  Plea  non  assump- 
sit. The  cause  was  tried  at  the  Washington  circuit,  on  the  18th  of 
June,  1806,  before  Mr.  Chief-Justice  Kent. 

On  the  trial  the  subscribing  witness  to  the  note  swore  that  two  or 
three  weeks  previous  to  the  date  of  the  note,  David  Carswell,  one  of 
the  defendants,  applied  to  Abner  Carswell,  the  other  defendant,  to  be 
his  suret}'  to  the  plaintiff,  on  a  note  for  $250,  payable  in  six  months, 
which  he  consented  to  do,  and  directed  the  witness  to  sign  his  name  to 
such  a  note.  A  few  days  afterwards,  and  before  the  note  was  made, 
David  Carswell  told  the  witness  that  he  had  informed  Abner  Carswell 
that  he  should  not  want  the  monej'  of  the  plaintiff,  as  he  could  do  with- 
out it.  The  witness,  with  tlie  assent  of  David  Carswell,  for  whom  he 
acted  as  clerk  and  agent,  but  without  the  privit}*  of  Abner  Carswell, 

1  The  reporter's  abstract  of  the  power  of  attorney  is  omitted.  The  essential  parts 
of  the  instrument  are  found  in  Gardner  v.  Baillie,  aiite,  p.  260.  — Ed. 


SECT.  III.]  BATTY   V.    CARSWELL.  267 

signed  the  note,  on  which  the  present  action  is  brought,  and  for  which 
David  Carswell  received  the  amount. 

It  appeared  that  Abner  Carswell  had  admitted  in  conversation  that 
he  had  authorized  the  other  defendant  to  use  his  name  to  a  note  for 
$250,  for  the  purpose  of  procuring  that  sura  of  the  plaintiff,  but  that  he 
was  told  by  David  Carswell  that  he  should  not  want  the  money,  and 
did  not  know  that  the  note  had  been  so  given  until  some  time  after- 
wards. The  note  was  then  offered  to  be  read  in  evidence,  but  objected 
to  b}'  the  defendants'  counsel,  because  it  had  not  been  proved  to  have 
been  signed  by  the  defendants  ;  but  the  objection  was  overruled.  The 
defendants'  counsel  then  moved  for  a  nonsuit,  which  was  refused.  The 
judge  charged  the  jury  that  if  they  believed  that  the  note  was  made  be- 
fore David  Carswell  had  told  the  other  defendant  that  he  should  not 
want  the  monej-,  the  plaintiff  would  be  entitled  to  recover,  otherwise 
they  ought  to  find  for  the  defendants ;  but  that  those  were  facts  on 
which  they  were  to  decide.     The  jur}'  found  a  verdict  for  the  plaintiff. 

A  motion  was  now  made  for  a  new  trial,  unless  the  court  should  thiuk 
proper  to  grant  a  nonsuit. 

Foot^  for  the  defendants. 

Crary  and  Russell,  contra. 

Livingston,  J.,  delivered  the  opinion  of  the  court.  This  was  a  spe- 
cial power,  and  ought  to  have  been  strictly  pursued,  3  Term,  762. 
But  the  note,  to  which  Abner  Carswell  authorized  the  witness  to  put 
his  name,  was  to  be  payable  in  six  months  whereas,  the  one  he  signed 
had  only  sixty  days  to  run.  The  note,  then,  as  far  as  it  concerned 
Abner,  admitting  there  was  no  revocation,  was  made  without  his  au- 
thority. His  confession,  after  the  suit  was  commenced,  does  not  alter 
the  state  of  the  case.  It  was  merely  that  he  had  allowed  David  to  put 
his  name  to  a  note.  This  must  have  been  the  one  of  wijich  the  first 
witness  speaks,  which  was  to  be  paj-able  in  six  months.  There  must 
be  a  new  trial,  with  costs,  to  abide  the  event  of  the  suit. 

2^ew  trial  granted. 


268  WILTSHIRE   V.    SIMS.  [CHAP.  IL 


WILTSHIRE  V.  SIMS. 
Nisi  Prius.     1808. 

[1  Camp.  258.] 

Action  for  not  transferring  stock. 

The  only  witness  was  Watkins,  the  broker  in  this  transaction,  who 
stated  that  the  defendant  gave  him  orders  to  sell  out  £500  of  the  stock 
of  the  trustees  of  the  Commercial  Road  ;  that  on  the  27th  of  August  he 
agreed  to  sell  it  to  the  plaintiff ;  that  as  the  transfer  could  not  be  made 
till  the  expiration  of  a  fortnight,  when  there  was  to  be  a  meeting  of  the 
trustees,  the  plaintiff  paid  him  for  the  stock  b}'  a  promissory  note  at  14 
da^-s  ;  that  in  taking  the  note  he  acted  with  a  view  to  his  employer's 
advantage,  thinking  the  stock  might  fall  before  the  transfer  could  be 
made  ;  that  he  paid  in  the  note  to  his  bankers,  where  it  was  attached 
for  a  debt  of  his  own  ;  and  that  at  the  end  of  the  fortnight  the  defend- 
ant refused  to  make  the  transfer,  as  he  had  received  no  part  of  the 
purchase  mone}-. 

It  was  contended  for  the  plaintiff,  that  the  sale  of  the  stock  on  the 
27th  of  August  was  binding  on  the  defendant.  "Watkins  was  his  author- 
ized agent,  and  had  acted  bona  fide  for  his  benefit.  He  must  he 
supposed  to  have  empowered  his  agent  to  sell  the  stock  in  the  manner 
most  for  his  interest,  and  the  loss  ought  to  fall  upon  him,  not  upon  the 
plaintiff,  who  had  paid  for  the  stock,  under  the  natural  impression  that 
Watkins  had  authority  to  sell  it  immediateh',  though  a  short  time  was 
to  intervene  before  the  stock  could  be  transferred  in  the  books  of  the 
trustees. 

Lord  Ellenborough.  When  the  defendant  employed  the  broker  to 
sell  the  stock,  he  employed  him  to  sell  it  in  the  usual  manner.  He 
made  him  his  agent  for  common  purposes  in  a  transaction  of  this  sort. 
But  did  an}'  one  ever  hear  of  stock  being  absolutely  exchanged  for  a 
bill  at  14  days?  Has  a  broker  in  common  cases  power  to  give  credit 
for  the  price  of  the  stock  which  he  agrees  to  sell?  The  broker  here 
sold  the  stock  in  an  unusual  manner ;  and  unless  he  was  expressly 
authorized  to  do  so,  his  principal  is  not  bound  by  his  acts. 

Plaintiff  nonsuited, 

Garrow,  Park,  and  Laices,  for  the  plaintiff. 

The  Attorney-  General  and  Header,  for  the  defendant. 


SECT.  III.]  HOGG   V.    fcJNAITll.  269 


HOGG   V.   SNAITH. 
Common  Fleas.      1808. 

[1   Taiuiloti,'6'i1.] 

Trover  for  two  bills  of  exchange.  Upon  the  trial  of  this  cause  at 
the  lust  sittings  at  Guildhall,  before  Mansfield,  C.  J.,  a  verdict  was 
taken  for  the  plaintiff,  subject  to  the  opinion  of  the  court  upon  the 
following  case.  The  i)laintiff,  by  a  power  of  attorne}-  under  seal, 
constituted  English  his  attorney  revocable,  for  him,  in  his  name,  and  to 
his  use,  to  ask,  claim,  demand,  recover,  and  receive,  from  the  commis- 
sioners of  His  Majesty's  navy,  or  whom  else  it  might  concern,  all  such 
salary,  wages,  &c.,  and  all  other  money  whatsoever,  as  then  was  or 
thereafter  should  be  due  to  him  for  his  service,  or  otherwise,  in  anj-  of 
His  Majesty's  ships ;  then  followed  a  general  power  to  receive  all 
demands  from  all  other  persons  whatsoever;  the  constituent  giving  and 
thereby  granting  unto  his  said  attoi'uey,  his  substitutes  and  assigns,  all 
his  authority  and  lawful  power  in  the  premises  for  receiving,  recovering, 
obtaining,  compounding,  and  discharging  the  same,  as  fully  and  effectually 
as  he  himself  might  or  could  do  being  personally  present ;  and  acquit- 
tances, releases,  or  any  other  discharges  in  his  name  to  make,  seal,  and 
deliver,  and  one  attorney  or  more  to  substitute,  and  at  pleasure  to 
revoke,  with  the  usual  clause  of  general  ratification.  By  virtue  of  this 
power  English  received  from  the  commissioners  for  victualling  His 
Majesty's  nav}-,  for  the  use  and  on  the  account  of  the  plaintiff,  the  two 
bills  in  question,  which  were  made  payable  to  the  plaintiff  or  his  order. 
Upon  each  of  these  bills  a  clerk  in  the  pay  department  of  the  victualling 
office  had  written  his  initials,  G.  S.,  with  the  words  "  letter  of  attorney 
entered,  William  C.  English,  attorney,"  to  denote  that  the  power  was 
lodged  in  the  victualling  office,  and  that  the  proper  officer  there  recog- 
nized English  as  Hogg's  attorney.  English,  without  an}'  other  authority 
from  the  plaintiff  than  this,  being  indebted  to  the  defendants,  who 
were  his  bankers,  in  the  sum  of  £142,  applied  to  them  to  discount  these 
bills,  which  he  delivered  to  them,  indorsed  "  W,  C.  English,  attorney." 
The  defendants  discounted,  and  placed  them  to  the  credit  of  his  account. 
Before  the  bills  were  due,  the  plaintiff  gave  the  defendants  notice  that 
he  had  revoked  the  power  of  attorne}'  made  in  favor  of  English,  and 
that  in  case  English  or  any  other  person  should  present  to  them  both  or 
either  of  the  bills  for  discount,  or  security  for  money  advanced,  they 
should  refuse  them  ;  he  also  demanded  possession  of  the  bills,  which 
the  defendants  refused  to  deliver  up.  The  defendants  offered  evidence 
that  it  was  a  general  usage  and  practice  for  attornej's,  constituted  by, 
and  acting  under  similar  powers,  to  negotiate  bills  of  this  description, 
by  indorsing  them  in  the  like  manner.  The  plaintiff  objected  to  the 
evidence,  but  Mansfield,  C.  J.,  admitted  it  subject  to  the  opinion  of 
the  court.     And  it  was  proved  that  powers  of  attornev  lodged  at  the 


270  HOGG   V.    SNAITH.  [CHAP.  IL 

victualling  office  were  not  all  in  one  and  the  same  form,  but  tliat  this 
particular  power  was  in  the  form  most  commonl}'  used  for  the  last  eight- 
een or  nineteen  j'ears  ;  before  which  time  victualling  bills  were  not  made 
payable  to  order,  but  an  assignment,  or  bill  of  sale,  was  necessary  to 
transfer  tliem  ;  that  the  bills  in  question,  thus  indorsed,  and  thus  marked 
by  the  clerk,  would  have  been  paid  at  the  victualling  office,  either  to 
English  or  any  other  person  who  should  have  produced  them  with  the 
same  indorsement,  but  for  the  notice  to  stop  the  payment,  which  had 
been  given  by  the  plaintiff.  That  it  was  the  practice  amongst  navy 
agents,  acting  under  similar  powers  of  attorney,  to  raise  money  for  the 
use  of  their  principals,  by  indorsing  similar  bills  in  the  same  way,  and 
delivering  them  to  their  bankers,  who  had  continuall}'  advanced  money 
upon  them  and  had  received  the  contents  from  the  victualling  office,  with- 
out any  other  warrant  or  authorit}'  than  such  indorsement ;  and  that  bills 
so  indorsed  and  marked  were  frequently  negotiated  ;  it  being  considered 
that  the  mark  recognizing  the  appointment  of  the  attorney,  and  his 
indorsement,  rendered  them  negotiable.  The  questions  for  the  opinion 
of  the  court  were,  first,  Whether  upon  the  whole  evidence,  considering 
it  all  as  admissible,  English  had  sufficient  authority  to  indorse  and 
discount  the  bills  for  his  own  use?  and  if  the  court  should  be  of  opinion 
that  he  had,  then,  secondly,  Whether  the  evidence  objected  to  ought  to 
have  been  received?  and  if  the  court  should  be  of  opinion  that  it 
ought  not,  then,  thirdly,  Whether,  rejecting  the  evidence  of  usage,  and 
considering  the  case  apart  from  the  facts  found  upon  such  evidence, 
English  had  sufficient  authority'  to  indorse  and  discount  the  bills  for  his 
own  use? 

£est,  Serjt.,  for  the  plaintiff,  contended  that  no  authority  was  given 
to  English  by  the  power  of  attorney  to  discount  or  negotiate  these  bills  ; 
and  so  far  as  his  acts  exceeded  the  scope  of  his  authorit}',  they  were 
wholly  void,  and  could  not  alter  the  plaintiffs  property  in  the  bills.  He 
observed  that  the  power  of  the  attorne\^  was  limited  to  receiving  these 
bills  at  the  navy  office  ;  and  it  then  became  his  duty  to  deliver  them  over 
to  the  plaintiff ;  for  bj'  the  course  of  the  navy  office,  the  deliver}-  of 
the  bills  was  payment  of  the  debt  due  from  the  public  to  the  plaintiff. 
It  would  be  too  great  a  concession  to  allow  that  he  could,  even  at  the 
end  of  the  ninet}'  days,  indorse  them  for  the  purpose  of  receiving  the 
money  on  them  for  the  plaintiff's  use.  [Lawrence,  J.,  interposing, 
read  a  short  note  of  the  following  case,  as  decisive  of  the  first  point. 
"  Hay,  Executor  v.  Goldsraidt  and  Another,  B.  R.,  Mich.  Term,  45  Geo. 
in.  This  was  an  action  brought  to  recover  the  money  which  had  been  re- 
ceived by  the  defendants  upon  a  bill  of  exchange,  payable  to  the  plain- 
tiff's testator,  Major-General  Patrick  Duff,  or  his  order,  of  which  bill  the 
defendants  had  obtained  payment  under  a  power  of  attorne}'  granted 
b}'  the  testator  to  J.  and  R.  Duff,  and  authorizing  them,  for  him  and  in 
his  name,  to  ask,  demand,  and  receive  from  the  East  India  Company, 
or  whom  it  should  or  might  concern,  all  money  that  might  become  due 
to  him  on  any  account  whatsoever,  and  to  transact  all  business,  and 


SECT.  III.]  HOGG   V.    SNAITH.  271 

upon  non-payment  or  non-delivciy  thereof,  for  him  and  in  his  name  to 
use  all  sueh  lawful  ways  and  means  for  the  recovery  thereof  as  he  might 
or  could  do  if  he  was  personally  present,  and  did  the  same  ;  and  on  pay- 
ment or  delivery  thereof,  for  him  and  in  his  name  to  make  and  give 
proper  receipts  or  other  discharges  for  the  same  ;  and  one  or  more 
substitute  and  substitutes  under  them  to  appoint,  and  again  at  pleasure 
to  revoke,  giving  and  thereby  gi-anting  unto  his  said  attorneys  and  their 
substitute  and  substitutes,  his  full  and  whole  power  and  authoritj-  in  the 
premises ;  and  concluding  with  the  usual  clause  of  ratification.  Under 
this  power  J.  and  R.  Duff  received  an  India  bill  for  £2920  8s.  lOd, 
payable  to  the  testator  or  his  order,  which  each  of  them  indorsed  '  for 
Major-General  Patrick  Duff,  per  procuration,  James  Duff,  Robert  Duff.' 
They  discounted  the  bill  with  the  defendants  and  raised  money  on  it. 
The  defendants,  by  their  broker,  received  of  the  India  Company  the 
money  due  on  the  bill.  At  the  trial  a  verdict  was  found  for  the  plain- 
tiffs ;  and  Erskine,  for  the  defendants,  having  obtained  a  rule  nisi  for 
setting  aside  the  verdict,  and  entering  a  nonsuit,  the  question  for  the 
Court  of  King's  Bench  was,  whether  J.  and  R.  Duff  had  any  authority 
to  indorse  and  discount  the  bill?  The  present  Attorney-General 
(Gibbs)  and  Wilson  showed  cause,  and  contended  that  the  power  of 
attorney'  gave  the  Duffs  authorit}-  to  receive  only,  and  not  to  negotiate 
the  bill.  Erskine  and  Gaselee,  contra,  relied  on  the  words,  '  to  transact 
all  business,'  as  giving  an  authority  to  do  more  than  merel}'  to  receive, 
and  contended  that  the  indorsement  was  only  a  substitution  of  other 
persons  for  the  attorneys  themselves,  which  the  power  enabled  tliem  to 
make.  The  cases  of  Howard  v.  Baillie,  2  H.  Bl.  618,  and  Gardner  v. 
Baillie,  6  Term  Rep.  592,  were  referred  to  in  the  course  of  the  argument. 
"•  The  court  was  of  opinion  that  the  power  to  transact  business  did  not 
authorize  the  Duffs  to  indorse  the  bill.  The  most  large  powers  must  be 
construed  with  reference  to  the  subject-matter.  The  words  '  all  busi- 
ness '  must  be  confined  to  all  business  necessarj-  for  the  receipt  of  the 
money.  Rule  discharged." ] 

Sest.  2.  The  evidence  of  the  usage,  if  properly  received  in  the  prin- 
cipal case,  does  not  distinguish  it  from  that  of  Hay  v.  Goldsmidt.  It 
was  proved,  indeed,  that  these  bills,  with  this  indorsement,  would  have 
been  paid,  except  for  the  notice,  and  that  navj-  agents  are  accustomed 
to  raise  money  upon  similar  bills  for  the  use  of  their  principals.  But 
here  the  mone}'  was  not  raised  for  the  use  of  the  principal,  but  for  that 
of  the  attorney.  But  3.  the  evidence  of  the  usage  ought  not  to  have 
been  admitted  at  all.  The  practice  of  abuses,  by  what  authority  soever 
it  may  be  countenanced,  cannot  be  received  to  enlarge  the  operation  of 
a  definite  written  instrument. 

Marshall,  Serjt.,  contra,  admitted  that  according  to  Comb's  Case,  9 
Co.  75,  the  attorney  could  regularly  do  no  act  unless  in  the  name  of  his 
principal.  But  it  was  proved  that  these  bills,  indorsed  in  the  name  of 
the  attorney  and  not  iu  that  of  the  principal,  would  have  been  paid  at 


272  PICKERING   V.    BUSK.  [CHAP.  II. 

the  victualling  office  when  due.  And  this  usage  had  now  so  long  pre- 
vailed that  it  induced  bankers  and  others  to  advance  money  to  a  large 
amount  upon  this  title.  It  was  therefore  such  an  universal  practice  of 
a  trade  as  to  take  the  case  out  of  the  general  rule  of  law.  It  is  in 
every  day's  occurrence  that  evidence  is  received  of  the  usage  of  a  par- 
ticular trade  to  control  the  general  law  ;  and  it  was  clearly  right  to 
receive  such  evidence  in  this  instance. 

Mansfield,  C.  J.  It  certainly  was  proved  at  the  trial  that  nav}'  and 
victualling  bills,  indorsed  under  a  power  hke  this,  and  so  registered, 
currently  pass  from  hand  to  hand  like  bank  notes  ;  but  I  was  neverthe- 
less of  opinion  that  parol  evidence  could  not  be  received  to  vary  a 
written  instrument.  But  if  the  evidence  of  the  usage  had  been  ten 
times  as  strong  it  would  not  have  authorized  this  transaction.  The 
banker  knew  that  these  bills  were  not  deposited  with  him  for  the  debt 
of  the  plaintiff,  but  for  that  of  English.  This  is  not  at  all  distinguish- 
able from  the  case  mentioned  by  my  brother  Lawrence ;  English  could 
not  possibly  pay  his  own  debt  to  Snaith  with  this  mone}'. 

Heath,  J.,  concurred.  This  evidence  ought  not  to  be  received  to 
control  the  legal  import  of  a  known  instrument  in  trade  and  commerce. 

Lawrence,  J.,  was  of  the  same  opinion. 

Chambre,  J.  This  authority'  is  strictly  confined  to  receiving  the 
debt  due  to  the  plaintiff  from  the  commissioners  of  the  nav}'.  English, 
by  receiving  the  bills,  performed  all  that  he  was  authorized  to  do.  He 
ought  afterwards  to  have  kept  them  in  his  possession  for  the  plaintiff. 
However,  even  supposing  that  his  power  extended  so  far,  that  if  he  had 
kept  the  bills  till  they  were  due,  he  might  have  gone  to  the  treasurer  of 
the  navy  and  received  the  money  upon  indorsing  the  bills,  still  this  is 
clearly  a  deviation  from  that  usage.  But  the  evidence  of  the  usage 
ought  never  to  have  been  received  for  the  purpose  of  altering  the  opera- 
tion of  a  written  instrument. 

Z^ei  the  postea  be  delivered  to  the  plaintiff } 


PICKERING  V.    BUSK. 
King's  Bench.     1812. 

[1.5  East,  38.] 

Trover  for  hemp.  At  the  trial  before  Lord  Ellenborough,  C.  J., 
at  the  sittings  after  Trinity  term  in  London,  it  appeared  that  Swallow, 
a  broker  in  London,  engaged  in  the  hemp  trade,  had  purchased  for  the 
plaintiff,  a  merchant  at  Hull,  a  parcel  of  hemp  then  Mng  at  S^-monds* 
wharf  in  Southwark.  The  hemp  was  delivered  to  Swallow,  at  the  desire 
of  the  plaintiff,  hy  a  transfer  in  the  books  of  the  wharfinger  from  the 

1  See  Rossiter  v.  Rossiter,  8  Wend.  494  (1832).  —  Ed. 


SECT.  III.]  PICKERING   V.    BUSK.  273 

name  of  the  seller  to  that  of  Swallow.  Shortly  afterwards  Swallow 
purchased  for  the  plaintiff  another  parcel  of  hemp,  lying  at  Brown's 
quay,  Wapping,  which  latter  parcel  was  transferred  into  the  names  of 
Pickering  (tlie  plaintiff),  or  Swallow.  Both  these  parcels  of  hemp  were 
duly  paid  for  by  the  plaintiff.  Swallow,  however,  whilst  the  hemp  re- 
mained thus  in  his  name,  having  contracted  with  Hay  ward  &  Co.,  as 
the  broker  of  Blackburn  &  Co.,  for  the  sale  of  hemp,  and  having  none  of 
his  own  to  deliver,  transferred  into  the  names  of  Hay  ward  &.  Co.  the 
above  parcels  in  satisfaction  of  that  contract,  for  which  they  paid  him 
the  value.  Hayward  &  Co.  shortly  after  became  bankrupts  ;  and  the 
plaintiff,  discovering  these  circumstances,  demanded  the  hemp  of  the 
defendants  their  assignees,  and  upon  their  refusal  to  deliver  it  the  present 
action  was  brought.  His  Lordship  was  of  opinion  upon  this  evidence, 
that  the  transfer  of  the  hemp,  by  direction  of  the  plaintiff,  into  Swal- 
low's name,  authorized  him  to  deal  with  it  as  owner,  with  respect  to 
third  persons  ;  and  that  the  plaintiff,  who  had  thus  enabled  him  to 
assume  the  appearance  of  ownership  to  the  world,  must  abide  the  con- 
sequence of  his  own  act.  A  verdict  was  thereupon  found  for  the  defend- 
ants, with  liberty-  to  the  plaintiff  to  move  to  set  it  aside. 

The  Attorney-General  in  the  last  term  accordingly  moved  for  a  new 
trial,  on  the  ground  that  the  principal  in  this  case,  b^-  authorizing  the 
transfer  to  be  made  into  the  name  of  his  broker,  had  done  no  more  than 
was  usual  and  notorious  in  the  course  of  that  business,  and  therefore 
gave  no  authority  to  the  broker,  his  agent,  to  transfer  the  property 
without  his  direction.  Where  by  the  ordinary  course  of  trade  the  pos- 
session of  goods  is  left  with  an  agent,  he  cannot  dispose  of  it  as  his 
own,  but  the  purchaser  must  look  to  his  authority.  Such  is  the  case  of 
a  factor,  who  b}-  the  usage  of  trade  has  authority  to  sell,  but  not  to 
pledge.  Therefore  though  he,  like  the  broker  in  this  case,  be  the 
apparent  owner,  3'et  his  pledge  will  not  bind  the  principal.  As  in 
M'Combie  v.  Davies,  6  East,  538,  and  7  East,  5,  where  an  assignment  of 
tobacco  in  the  King's  warehouse  had  been  taken  bj-  wa}-  of  pledge  from 
the  broker  who  had  purchased  it  there  in  his  own  name  for  his 
principal,  it  was  held  that  the  pawnee  could  not  retain  it  against  the 
principal. 

The  Court  now  distinguished  between  that  case  which  was  the  case 
of  a  pledge,  and  bej'ond  the  scope  of  a  broker's  general  authority  ;  and 
this,  which  was  the  case  of  a  sale,  and  within  his  general  authorit}' ; 
but  the}'  granted  a  rule  to  show  cause,  as  the  point  was  of  general 
consequence. 

Garroic,  Topping,  and  Taddy^  now  showed  cause  and  observed, 
that  Hayward  &  Co.,  who  purchased  the  hemp  of  Swallow,  had  no 
means  of  discovering  that  the  hemp  was  not  the  propert}'  of  the  person 
in  whose  name  it  stood,  and  who  took  upon  him  to  deal  with  it  as  his 
own.  And  it  would  be  unjust  that,  because  the  broker  has  turned  out 
to  be  an  unfaithful  steward  of  his  emplovxr,  the  innocent  purchasers 
should  suffer  rather  than  the  plaintiff,  by  whose  act  in  suffering  the 

18 


274  PICKERING   V,    BUSK.  [cHAP.  11. 

goods  to  be  entered  in  the  broker's  name,  the  latter  was  enabled 
to  practise  the  delusion.  If  the  plaintiff  had  meant  to  retain  his 
dominion  over  the  property,  he  should  have  taken  the  transfer  in  his 
own  name  instead  of  the  broker's.  M'Combie  v.  Davies,  6  East,  538, 
was  the  case  of  a  pledge,  and  onh*  decides  that  a  broker  cannot  pledge 
the  goods  of  his  principal ;  which  doctrine  was  before  laid  down  in 
Patterson  v.  Tash,  2  Str.  1178,  in  the  case  of  a  factor.  But  here 
Swallow  has  made  an  absolute  sale  ;  which  he  had  an  apparent  author- 
ity to  do:  and  according  to  Parker  v.  Patrick,  5  Term  Rep.  175,  the 
owner,  who  has  enabled  another  person  to  deal  with  the  goods  as  his 
own,  must  abide  the  consequence  if  any  loss  occur  b}'  third  persons* 
dealing  with  such  apparent  owner.  [Bayley,  J.  That  doctrine  in  its 
full  extent  would  give  the  pawnee  in  all  cases  a  better  title  than  the 
original  proprietor.] 

T7ie  Attorney-General,  -Park,  and  Abbott,  co7itra.  The  question  is 
whether  the  property'  in  the  hemp  passed  by  the  sale  and  delivery  of 
Swallow.  The  cases  of  Patei'son  v.  Tash,  and  M'Combie  v.  Davies, 
establish  the  principle,  that  if  an  agent  go  beyond  his  authorit}'  in  dis- 
posing of  the  goods  of  another,  that  other  is  not  bound  b}'  such  an 
excess  of  authority  :  on  that  ground  only  has  it  been  held  that  a  factor 
cannot  pledge  ;  because  his  principal  has  given  him  no  authority  to 
pledge.  But  he  may  sell,  because  his  principal  entrusts  him  with  an 
authority  to  sell.  How  then  can  a  broker,  who  has  no  authorit}'  either 
to  sell  or  pledge,  bind  his  principal  by  a  sale?  [Lord  Ellenborocgh, 
C.  J.  If  Swallow  had  not  the  hemp  for  the  purpose  of  sale,  for  what 
purpose  had  he  it?]  For  the  purpose  of  safe  custod}',  and  for  the  con- 
venience of  the  owner.  The  world  had  no  right  to  conclude  from  the 
circumstance  of  the  goods  being  in  his  name,  that  therefore  he  had  the 
power  of  disposing  of  them.  The  argument,  that  the  property  in  goods 
should  follow  the  possession,  might  have  weight,  if  the  question  were 
whether  the  law  should  be  altered  in  this  respect :  but  that  such  is  not 
the  rule  of  law  is  clear  from  the  excepted  case  of  a  sale  ifi  market  overt, 
by  which  alone  the  property  of  another  is  bound.  If  a  person  entrust 
his  watch  to  a  watchmaker  for  the  purpose  of  repairing  it,  and  he  sell 
it,  the  owner  is  not  bound  by  such  sale,  because  he  had  given  no  author- 
ity to  sell.  [Lord  Ellenborough,  C.  J.  In  that  case  the  watclimaker 
is  not  exhibited  to  the  world  as  the  owner,  and  the  world  does  not  credit 
him  as  such  merely  b3'  reason  of  his  possession  of  the  property.  But 
here  Swallow  was  a  common  agent  for  the  sale  of  property  of  this  de- 
scription.] Unless  Swallow  had  the  power  of  sale  expressly  given  him, 
no  such  power  can  be  implied  from  the  mere  fact  of  the  goods  being 
entered  in  his  name  at  the  wharfs.  It  does  not  follow  that  he  who  per- 
mits the  possession  of  propert}'  by  another  therefore  gives  him  an 
authority  to  dispose  of  it,  though  that  other  ma}'  deal  in  goods  of  the 
same  kind.  If  one  entrust  a  chest  of  tea,  for  the  purpose  of  safe  cus- 
tody', to  a  grocer  who  deals  in  such  commodity,  and  whom  the  world 
therefore  might  suppose  to  have  the  property  in  the  chest,  and  he  sell 


SECT.  III.]  PICKERING   V.    BUSK  275 

it ;  the  chest  remaining  unbroken  ;  willioiit  doiil)t  the  owner  may  recover 
it  from  the  vendee  ;  for  the  grocer  was  onlj'  entrusted  with  the  custody, 
and  in  cases  of  this  kind  the  rule  of  caveat  emptor  applies.  So  where 
goods  are  consigned  to  a  merchant  from  abroad,  the  consignee  cannot 
go  beyond  his  authority  in  disposing  of  them  ;  and  yet  he  may  have  tlie 
full  possession  of  them  either  by  delivery-  of  the  goods  themselves  or  of 
the  bills  of  lading,  and  may  thereby  impose  on  the  world.  The  princi- 
ple of  all  which  cases  is  this,  that  a  person  who  is  entrusted  with  the 
goods  of  anotlier  can  do  no  more  in  respect  of  those  goods  than  what 
the  other  has  authorized  him  to  do.  Whether  Swallow  had  power  to 
sell  is  a  fact,  and  not  an  inference  of  law  arising  out  of  the  apparent 
possession :  but  no  such  fact  was  proved  or  found  in  this  case.  The 
only  distinction  between  this  and  the  case  of  a  factor  is  that  the  factor 
has  some  authorit}' ;  that  is,  to  sell ;  but  here  Swallow  had  none.  In 
Wilkinson  v.  King,  2  Camp.  N.  P.  Cas.  335,  which  was  trover  for  lead, 
it  appeared  that  the  plaintiff  had  sent  the  lead  to  a  wharfinger  who  was 
accustomed  to  sell  lead  ;  and  he  sold  it  to  the  defendant,  who  bought  it 
bond  fide :  yet  it  was  held  that  the  plaintiff  was  entitled  to  recover. 
[Lord  P^LLENBOROUGH,  C.  J.  That  was  the  case  of  a  wharfinger  whose 
proper  business  it  was  not  to  sell ;  and  to  whom  the  goods  were  sent  for 
the  mere  purpose  of  custody.]  The  case  states  that  he  was  accustomed 
to  sell  lead. 

Lord  Ellenborough,  C.  J.  It  cannot  fairly  be  questioned  in  this 
case  but  that  Swallow  had  an  implied  authorit}'  to  sell.  Strangers  can 
only  look  to  the  acts  of  the  parties,  and  to  the  external  indicia  of  prop- 
erty, and  not  to  the  private  communications  which  ma^'  pass  between  a 
principal  and  his  broker ;  and  if  a  person  authorize  another  to  assume 
the  apparent  right  of  disposing  of  property  in  the  ordinary  course  of 
trade,  it  must  be  presumed  that  the  apparent  authority  is  the  real  author- 
it}'.  I  cannot  subscribe  to  the  doctrine,  that  a  broker's  engagements 
are  necessarily  and  in  all  cases  limited  to  his  actual  authority,  the  real- 
ity of  which  is  afterwards  to  be  tried  by  the  fact.  It  is  clear  that  he 
may  bind  his  principal  witliin  the  limits  of  the  authority  with  which  he 
has  been  apparently  clothed  by  the  principal  in  respect  of  the  subject- 
matter  ;  and  there  would  be  no  safety  in  mercantile  transactions  if  he 
could  not.  If  the  principal  send  his  commodity  to  a  place,  where  it  is 
the  ordinary  business  of  the  person  to  whom  it  is  confided  to  sell,  it 
must  be  intended  that  the  commodity  was  sent  thither  for  the  purpose 
of  sale.  If  the  owner  of  a  horse  send  it  to  a  repository  of  sale,  can  it 
be  implied  that  he  sent  it  thither  for  any  other  purpose  than  that  of 
sale?  Or  if  one  send  goods  to  an  auction-room,  can  it  be  supposed  that 
he  sent  them  thither  merely  for  safe  custody  ?  Where  the  commodity 
is  sent  in  such  a  way  and  to  such  a  place  as  to  exhibit  an  apparent  pur- 
pose of  sale,  the  principal  will  be  bound  and  the  purchaser  safe.  The 
case  of  a  factor  not  being  able  to  pledge  the  goods  of  his  principal  con- 
fided to  him  for  sale,  though  clothed  with  an  apparent  ownership,  has 
been  pressed  upon  us  in  the  argument,  and  considerably  distressed  our 


276  PICKERING   V.    BUSK.  [cHAP.  II, 

decision.  The  Court,  however,  will  decide  that  question  when  it  arises, 
consistently  with  the  principle  on  wiiicli  the  present  decision  is  founded. 
It  was  a  hard  doctrine  when  the  pawnee  was  told  that  the  pledger  of  the 
goods  had  no  authorit}'  to  pledge  them,  being  a  mere  factor  for  sale  ;  and 
yet  since  the  case  of  Paterson  v.  Tash,  that  doctrine  has  never  been 
overturned.  I  remember  Mr.  Wallace  arguing,  in  Campbell  v.  Wright,  4 
Burr.  2046,  that  the  bills  of  lading  ought  to  designate  the  consignee  as 
factor,  otherwise  it  was  but  just  that  the  consignors  should  abide  by  the 
consequence  of  having  misled  the  pawnees.  The  present  case,  however, 
is  not  the  case  of  a  pawn,  but  that  of  a  sale  by  a  broker  having  the 
possession  for  the  purpose  of  sale.  The  sale  was  made  by  a  person  who 
had  all  the  indicia  of  propert}- :  the  hemp  could  onl}'  have  been  trans- 
ferred into  his  name  for  the  purpose  of  sale  ;  and  the  party  who  has  so 
transferred  it  cannot  now  rescind  the  contract.  If  the  plaintiff  had  in- 
tended to  retain  the  dominion  over  the  hemp,  he  should  have  placed  it 
in  the  wharfinger's  books  in  his  own  name. 

Grose,  J.  The  question  whether  the  plaintiff  is  bound  by  the  act  of 
Swallow,  depends  upon  the  authoritj'  which  Swallow  had.  This  being 
a  mercantile  transaction,  the  jury  were  most  competent  to  decide  it; 
and  if  I  had  entertained  any  doubt,  I  should  rather  have  referred  the 
question  to  them  for  their  determination  :  but  I  am  perfectly  satisfied: 
I  think  Swallow  had  a  power  to  sell. 

Le  Blanc,  J.  The  law  is  clearly'  laid  down,  that  the  mere  possession 
of  personal  property  does  not  conve}-  a  title  to  dispose  of  it ;  and,  which 
is  equall}'  clear,  that  the  possession  of  a  factor  or  broker  does  not 
authorize  him  to  pledge.  But  this  is  a  case  of  sale.  The  question  then 
is  whether  Swallow  had  an  authorit}*  to  sell.  To  decide  this,  let  us  look 
at  the  situation  of  the  parties.  Swallow  was  a  general  seller  of  hemp  : 
the  hemp  in  question  was  left  in  the  custod}'  of  the  wharfingers,  part  in 
the  name  of  Swallow,  and  part  in  tlie  name  of  the  plaintiff  or  Swallow, 
which  is  the  same  thing.  Now  for  what  purpose  could  the  plaintiff  leave 
it  in  the  name  of  Swallow,  but  that  Swallow  might  dispose  of  it  in  his 
ordinar}'  business  as  broker?  if  so,  the  broker  having  sold  the  hemp, 
the  principal  is  bound.  This  is  distinguishable  from  all  the  cases  where 
goods  are  left  in  the  custody-  of  persons  whose  proper  business  it  is  not 
to  sell. 

Bayley,  J.  It  ma}'  be  admitted  that  the  plaintiff  did  not  give 
Swallow  any  express  authority  to  sell ;  but  an  implied  authority  ma.j  be 
given :  and  if  a  person  put  goods  into  the  custody  of  another,  whose 
common  business  it  is  to  sell,  without  limiting  his  authority,  he  thereby 
confers  an  implied  authorit}'  upon  him  to  sell  them.  Swallow  was  in 
the  habit  of  buying  and  selling  hemp  for  others,  concealing  their  names. 
And  now  the  plaintiff  claims  a  libert}'  to  rescind  the  contract,  because 
no  express  authority  was  given  to  Swallow  to  sell.  But  is  it  competent 
to  him  so  to  do?  If  the  servant  of  a  horse  dealer  with  express  direc- 
tions not  to  warrant,  do  warrant,  the  master  is  bound ;  because  the  ser- 
vant, having  a  general  authority'  to  sell,  is  in  a  condition  to  warrant, 


SECT.  III.]  WIIITEIIKAD    V.    TUCKETT.  277 

and  the  master  has  not  notified  to  the  world  that  tlie  general  authorit}' 
is  circumscribed.  Tliis  case  does  not  proceed  on  the  ground  of  a  sale 
in  market  overt,  but  it  proceeds  on  tlie  principle,  that  the  plaintiff  hav- 
ing given  Swallow  an  authoritj-  to  sell,  he  is  not  at  liberty  afterwards, 
when  there  has  been  a  sale,  to  deny  the  authority. 

Rule  discharged.^ 


WHITEHEAD  v.   TUCKETT. 
King's  Bench.     1812. 

[15  East,  400.] 

In  trover  for  thirty-seven  hogsheads  of  sugar,  which  was  tried  before 
Le  Blanc,  J.,  at  Lancaster,  a  verdict  was  found  for  the  plaintiffs  for 
£3,000,  subject  to  the  opinion  of  the  Court  on  tlie  following  case. 

The  defendant,  a  wholesale  grocer  at  Bristol,  employed  Sill  &  Co.^ 
brokers  at  Liverpool,  to  buy  and  sell  on  his  account  great  quantities  of 
sugars.  The  greater  part  were  bought  on  speculation  for  resale,  and 
were  resold  at  Liverpool,  but  some  were  occasionally  sent  to  the  de- 
fendant. Sill  &  Co.  usuall}-  bought  and  paid  for  the  sugars  in  their 
own  names,  and  in  like  manner  resold  and  received  the  purchase- 
mone3S  in  their  own  names.  The}'  did  not  draw  upon  the  defendant 
for  the  particular  amount  of  each  purchase,  nor  remit  to  him  the  par- 
ticular bill  received  in  payment  on  each  sale ;  but  there  was  a  general 
running  account  between  them.  Sill  &  Co.  never  had  a  general  au- 
thority to  buy  for  the  defendant,  but  in  each  instance  received  his 
directions  for  so  doing  ;  but  when  the  markets  were  low,  thev  had 
sometimes  an  unlimited  authority  as  to  quantity  or  price.  Previously 
to  the  transaction  which  gave  rise  to  the  present  action,  Sill  &  Co.  had 
not  a  general  authority  to  sell  at  their  discretion,  but  received  the  de- 
fendant's directions  to  sell  on  each  occasion,  and  were  limited  as  to 
price;  and  upon  the  transaction  in  question  they  had  no  other  authorit}' 
in  general  than  what  appears  from  the  letters  hereinafter  stated.  In 
May,  1810,  Sill  &  Co.  bought  in  their  own  names  fifty  hogsheads  of 
St.  Croix  sugar  of  Ewart,  Rutson,  &  Co.,  on  account  of  the  defendant, 
paid  for  them  by  their  own  draft,  and  reimbursed  themselves  by  drafts 
on  the  defendant ;  not  for  the  particular  amount  of  this  purchase,  but 
on  the  general  account  running  between  them.  The  samples  were  sent 
as  usual  to  Sill  &.  Co.'s  office,  and  remained  there  till  the  sale  to  the 
plaintiffs  hereafter  mentioned,  and  the  sugars  were  removed  from  the 
warehouse  of  the  sellers  to  the  warehouse  of  Sill  &  Co. 

The  following  are  extracts  from  the  correspondence  between  Sill  & 

»  And  see  Dyer  v.  Pearson,  3  B.  &  C.  38  (1824)  ;  McNeil  v.  Tenth  National  Bank, 
46  N.  Y.  325  (1871) ;  Cole  v.  North- Western  Bank,  L.  R.  10  C.  P.  354,  364-365,  369 
(Ex.  Ch.,  1875).  — Ed. 


278  WHITEHEAD   V.    TUCKETT.  [CHAP.  II. 

Co.  and  the  defendant.  Sill  to  Tuckett,  7th  July,  1810:  "We  attend 
to  your  instructions  of  selling  1  a  200  hogsheads  of  your  sugar  as  soon 
as  we  can  get  4s.  to  5s.  per  cvvt.  on  them,  and  having  an  order  from 
C.  E.  Rawlins,  of  your  place,  we  have  sold  him  forty  hogsheads  and 
two  barrels,  St.  Lucia  sugar,  belonging  to  you,  at  73s.,  payable  by  his 
acceptance  at  four  months,  which,  trust  will  meet  with  your  approba- 
tion." Tuckett  to  Sill  &  Co.,  Dth  August,  1810  :  "  We  are  in  no 
hurry  to  part  with  the  sugars  under  your  care,  but  whenever  your 
market  should  advance  3s.  above  the  present  price,  you  may  sell  the 
whole  of  the  St.  Croix  sugars,^  bought  in  May  last,  at  68s.  or  69s.  ; 
on  the  best  terms  to  safe  men."  Sill  &  Co.  to  Tuckett,  11th  August, 
1810:  "  We  shall  not  offer  any  more  of  3'ours  for  the  present,  unless 
the  prices  advance  further."  Tuckett  to  Sill  &  Co.,  11th  August, 
1810  :  "  B}-  our  B.  Sykes's  letter  to-day,  we  see  he  is  arrived  at  Liver- 
pool, and  that  you  have  disposed  of  five  of  our  lots  of  sugar  at  4s. 
profit,  which  we  are  sorr\'  for,  as  our  late  intention  was  to  hold  every 
cask  until  the  prices  got  much  higher,  which  we  are  very  confident  will 
be  the  case  within  six  weeks.  N.  B.  Of  course  you  will  not  offer  any 
more  for  sale  till  further  instructions  from  Bristol."  Tuckett  to  Sill 
&  Co.,  27th  August,  1810  :  "  Our  raw  sugar  market,  though  not  brisk, 
continues  to  keep  up,  gives  some  prices,  and  we  are  very  confident  the 
price  will  continue  to  advance  ;  when  you  can  obtain  10s.  per  cwt.  on 
cost,  we  may  be  inclined  to  sell  a  few  of  our  sugars.  Though  we  are 
poor,  we  are  willing  to  suspend  a  little  while  longer,  being  very  confi- 
dent far  better  prices  will  be  obtained  b^-  and  bj-."  Tuckett  to  Sill  & 
Co.,  22d  September,  1810:  "Sugars  we  are  not  inclined  to  sell  at 
present,  from  an  undoubted  opinion  that  the}-  will  soon  rally  again." 
Tuckett  to  Sill  &  Co.,  22d  October,  1810:  "Our  sugar  market  is 
brisk  and  advancing.  Could  there  be  any  possibility  of  selling  the  St. 
Domingo  coffee  at  anything  like  cost  price?  Should  the  sugar  market 
advance  about  2s.  higher,  you  may  sell  any  of  our  sugars,  when  cost 
price  and  expenses  can  be  obtained,  to  men  of  undoubted  safety.  We 
see  by  your  letter  that  raw  sugars  are  much  sought  after ;  and  if  you 
can  get  Is.  for  these  three  lots  of  St.  Croix,  bought  in  the  fifth  month, 
at  69s.  6d.  you  may  let  them  go.  The  38  hogsheads  of  AB.L.  that  you 
value  at  71s.  would  bring  here  74s.  or  75s.,  we  attend  3'our  reply." 

On  the  15th  of  October,  1810,  Sill  &  Co.  sold  the  fifty  hogsheads  of 
St.  Croix  sugar  to  the  plaintiffs,  at  69s.  per  cwt. ;  and  an  invoice  was 
made  out  and  dehvered  by  Sill  &  Co.  to  the  plaintiffs,  headed  as  fol- 
lows :  "Liverpool,  10th  month,  15th,  1810.  Whitehead,  Whittle  and 
Herd,  Bought  of  James  Sill  &  Co.  50  hogsheads  sugar,  payment  in 
three  months  and  twelve  days,  equal  to  four  months  cash."  Then  fol- 
lows a  statement  of  the  numbers  and  weights,  amounting  to  634  c. 
2  q.  3  lb.  nett,  at  69s.,  £2,189  2s.  Ad.  The  plaintiffs  duly  paid  Sill 
&  Co.  for  these  sugars,  according  to  the  contract ;  and  afterwards,  on 

*  The  sugars  in  question  were  part  of  the  St.  Croix  sugars  here  mentioned.  —  Rep. 


SECT.  III.]  WHITEHEAD   V,    TUCKETT.  279 

their  application,  thirteen  hogsheads  were  delivered  by  Sill  &  Co.  to 
the  pUiiiitiffs,  and  by  them  removed  ;  namel}',  three  hogsheads  on  the 
20lh,  and  ten  on  the  2yth  of  October,  1810.  Sill  &  Co.  did  not  inform 
the  defendant  of  the  sale  of  these  sugars  to  the  plaintiffs,  nor  of  the 
delivery  of  those  last  mentioned,  nor  did  they  remit  to  him  the  purchase 
mone}'  bv  them  received  from  the  plaintiffs.  The  remaining  thirty- 
seven  hogsheads  continued  in  the  warehouse  of  Sill  &  Co.  until  their 
bankruptcy,  when  they  were  taken  possession  of  by  the  defendant ;  and 
upon  his  refusal  to  deliver  them  to  the  plaintiffs,  this  action  was  brought. 
If  the  plaintiffs  are  entitled  to  recover,  the  amount  of  the  damages  was 
agreed  to  be  settled  by  arbitration  at  Liverpool.  The  question  for  the 
opinion  of  the  Court  was  whether  the  plaintiffs  were  entitled  to  recover? 
if  they  were,  the  verdict  was  to  stand,  or  be  entered  for  such  sum  as 
should  be  awarded  :    if  not,  a  nonsuit  was  to  be  entered. 

Michardson^  for  the  plaintiffs. 

Scarlett,  for  the  defendant.-' 

Hichardsoii  in  reply. 

Lord  Ellenuorough,  C.  J.  This  is  an  action  brought  by  the  plain- 
tiffs to  recover  the  value  of  certain  hogsheads  of  sugar  purchased  b}' 
them  of  Sill  &  Co.,  who  are  brokers  at  Liverpool,  which  the  defendant 
claims  to  retain  as  his  property,  as  having  been  improperl}'  disposed  of 
by  Sill  &  Co.,  to  whom  he  had  intrusted  them  for  the  purposes  of  sale 
under  a  limited  authorit}-,  which  they  had  exceeded.  Much  of  the  argu- 
ment in  this  case  has  turned  upon  the  question  whether  Sill  &  Co.  were 
invested  with  a  general  authority  to  sell  the  sugars  :  when  that  question 
is  discussed,  it  may  be  material  to  consider  the  distinction  between  a 
particular  and  a  general  authority  ;  the  latter  of  which  does  not  im- 
port an  unqualified  authoritv,  but  that  which  is  derived  from  a  multi- 
tude of  instances  ;  whereas  the  former  is  confined  to  an  individual 
instance.  Such  was  the  distinction  which  governed  the  decision  in 
Fenn  v.  Harrison,  and  in  the  MS.  case  cited.  Now  in  that  sense  of  the 
term  general  authority,  Sill  &  Co.  were  general  agents  ;  for  they  bought 
and  sold  in  a  multitude  of  instances  in  their  own  names,  paid  and  re- 
ceived the  money  in  their  own  names,  and  blended  their  accounts  of 
receipts  and  payments,  without  carrying  each  order  to  a  separate  ac- 
count with  the  defendant ;  and  althougli  there  was  a  communication 
between  them  and  the  defendant  as  to  the  price  and  time  of  sale,  yet  the 
world  was  not  privy  to  that  communication,  and  had  therefore  no  means 
of  knowing  that  their  general  authority  was  controlled  by  the  interpo- 
sition of  any  check.  But  even  looking  to  the  letters,  I  find  nothing 
in  them  to  contravene  a  general  power  of  sale.     There  are  indeed  par- 

1  Scarlett  "  mentioned  a  MS.  case  in  1792  or  179.3  to  the  following  effect :  A  ser- 
vant was  sent  with  a  horse  to  a  fair,  with  an  express  order  from  the  master  not  to  sell 
it  under  a  certain  snm  ;  the  servant,  notwithstanding,  sold  it  for  a  less  sum  ;  upon 
which  the  master  immediately  gave  notice  and  brought  trover  against  the  pur- 
chaser ;  and  it  was  held  that  he  might  recover,  because  the  servant  was  not  his  general 
agent  "  —  Rep. 


280  WHITEHEAD   V.    TUCKETT.  [CHAP.  II. 

ticular  allusions  as  to  the  price  and  time  of  sale,  b}'  way  of  advice  and 
instruction  ;  but  I  cannot  find  that  they  contain  an}'  general  prohibition 
to  sell,  nor  any  absolute  limitation  of  the  terms  on  which  the}'  were  to 
sell.  In  the  letter  of  the  9th  of  August,  the  defendant  writes  to  Sill 
&  Co.  "  that  the}'  may  sell  the  whole  of  the  St.  Croix  sugars  at  GSs.  or 
695.  on  the  best  terms,  to  safe  men."  If  these  expressions  are  to  be 
construed  into  so  man}^  restrictions  of  the  power  of  the  brokers,  it 
will  follow  that  the}'  were  not  only  limited  as  to  price,  but  also  as  to 
the  terms  of  sale,  which  according  to  the  letter  were  to  be  the  best,  and 
as  to  the  purchasers  who  were  to  be  safe  men  ;  and  if  in  either  of  these 
respects  tlie  contract  made  by  them  should  fail,  their  principal  would 
have  a  right  to  reject  it.  But  if  this  could  be  done,  in  what  a  perilous 
predicament  would  the  world  stand  in  respect  of  their  dealings  with 
persons  who  may  have  secret  connnunications  with  their  principal. 
Such  communications  therefore  must  not  be  taken  as  limitations  of 
their  power,  however  wise  they  may  be  as  suggestions  on  the  part  of 
the  principal.  In  another  letter  the  defendant,  alluding  to  information 
which  his  house  had  received  from  Sill  &  Co.,  of  their  having  disposed 
of  some  lots  of  sugars,  remarks  "  that  they  are  sorry,  as  their  late  in- 
tention was  to  hold  every  cask  until  tlie  prices  got  much  higher."  Now 
this  is  the  very  language  of  a  person  who  had  given  his  broker  an  au- 
thority to  exercise  his  discretion  upon  the  subject,  and  not  of  one  who 
miglit  have  repudiated  the  contract  as  being  contrary  to  his  instructions. 
The  subsequent  letter  of  the  27th  of  August  to  Sill  &  Co.  states, 
*'  when  you  can  obtain  10s.  per  cwt.  on  cost,  we  may  be  inclined  to 
sell  a  few  of  our  sugars,"  &c.  This  is  a  mere  communication  of  specu- 
lation and  advice  from  the  principal  to  the  brokers,  which  presumes  a 
general  authority  in  the  brokers,  with  a  desire,  on  the  part  of  the  prin- 
cipal, to  direct  them  in  the  exercise  of  it.  The  case  of  Paterson  v. 
Tash  ^  is  not  involved  in  the  decision  of  this  :  when  that  case  comes 
directly  before  us,  we  shall  take  occasion  to  consider  it  apart.  Look- 
ing then  at  this  correspondence  (which  might  perhaps  have  been  more 
properly  left  to  the  consideration  of  a  jury),  we  find  that  there  was  a 
sale  of  part  of  these  sugars  recognized  in  one  instance  by  the  defend- 
ant, and  that  subsequently  there  was  not  any  positive  prohibition  against 
future  sale.  Upon  the  whole,  therefore,  I  think  it  must  be  inferred  that 
Sill  &  Co.  had  a  general  authority  to  sell,  and  that  the  sale  made  by 
them  is  valid. 

Grose,  J.  I  have  had  considerable  doubts  on  this  question  as  the 
argument  has  gone  on  :  I  was  inclined  at  first  to  think,  from  the  letters 
stated  in  the  case,  and  from  finding  the  defendant  constantly  speaking 
in  them  of  selling  at  certain  prices,  that  Sill  &  Co.  had  not  a  general 
authority  to  sell ;  but  upon  consideration  I  think  the  discretion  of  the 
brokers  was  left  very  much  at  large  in  the  business  ;  and  when  that  is 
the  case,  it  would  be  very  dangerous  to  hold  third  persons  bound  by 

1  Ante,  p.  253— Ed. 


SECT.  III.]  WHITEHEAD   V.    TUCKETT.  281 

coniiniinications  passing  behind  their  back  between  a  principal  and  his 
broker.  I  think,  tlierefore,  under  these  circumstances,  that  the  prin- 
cipal was  bound  h\  tlie  acts  of  the  brokers. 

Le  Blanc,  J.  The  plaintiffs  are  tlie  vendees  from  Sill  &  Co.  of  cer- 
tain hogsheads  of  sugars,  for  which  the}-  have  paid  the  value  ;  the  de- 
fendant is  the  person  who  employed  Sill  &  Co.  ;  and  tlie  question  is 
whether  the  Court  can  collect  from  the  circumstances  stated  that  Sill  & 
Co.  had  a  general  authority  to  sell?  In  order  to  determine  that  ques- 
tion, I  think  the  Court  is  not  to  look  to  the  correspondence  as  it  relates 
to  this  particular  parcel  of  sugars  onh',  but  as  it  is  connected  with  all  the 
circumstances  of  the  case.  It  appears  then  that  the  goods  were  left  with 
Sill  &  Co.  for  sale  ;  and  althougli  they  had  not  a  general  authority  ex- 
pressly given  to  thein  by  tlie  letters,  yet  that  in  many  instances  they 
bought  and  sold  for  the  defendant  in  their  own  names,  without  making 
an}'  specific  appropriation  to  the  separate  account  of  the  defendant 
either  of  the  moneys  received  in  respect  of  such  sales,  or  of  the  moneys 
expended  on  sucli  purchases.  Thus  they  appeared  acting  as  general 
agents  for  the  defendant ;  and  upon  one  occasion  in  particular  (alread}' 
alluded  to  by  my  Lord),  when  the  defendant  received  intelligence  of 
their  having  sold  a  lot  at  a  lower  price  than  he  intended,  instead  of 
repudiating  the  bargain  as  contrary  to  his  instructions,  we  find  him 
indeed  expressing  his  sorrow  tliereupon,  but  acquiescing  in  that  which 
had  been  done.  Can  the  court  then  sa}',  after  these  instances  of  gen- 
eral authority  exercised  over  the  goods  of  the  principal,  that  in  this 
particular  instance  the  authority  of  Sill  &  Co.  was  controlled,  so  as  to 
invalidate  a  sale  made  by  them  to  a  bond  fide  purchaser?  I  think  it 
cannot,  but  that  under  the  circumstances  we  must  hold  the  defendant 
to  be  bound  by  the  general  authorit}-  thus  given  to  Sill  &  Co.  It  is 
unnecessar}'  to  enter  into  the  question  whether  an  agent  who  exceeds 
his  authorit}'  can  bind  his  principal. 

Baylet,  J.  I  think  the  only  conclusion  to  be  drawn  from  the  facts 
stated  is  that  Sill  &  Co.  had  a  general  authorit}'  to  sell,  and  that  it 
would  be  a  fraud  on  the  public  to  hold  otherwise.  Sill  &  Co.  were 
common  brokers  for  the  sale  of  sugars  ;  and  if  the  defendant  suffered 
them  to  bu}'  and  sell  for  him  in  their  own  names,  and  thereby  to  hold 
themselves  out  to  the  world  as  the  owners  of  the  goods,  he  must  be 
taken  to  have  given  them  a  general  authorit}-.  There  was  nothing  to 
designate  him  as  the  owner ;  neither  the  bills  of  sale  being  in  his  name 
nor  the  price  of  the  goods  sold  or  purchased  carried  to  his  separate  ac- 
count ;  so  that  in  all  respects  Sill  &  Co.  appeared  as  the  owners.  If, 
therefore,  they  have  abused  the  confidence  reposed  in  them,  the  defend- 
ant, who  intrusted  them,  and  not  the  plaintiffs,  the  innocent  purchasers, 
must  suffer  for  it.  I  agree,  therefore,  that  the  plaintiffs  are  entitled  to 
recover. 

Per  Curiam,  Postea  to  the  plaintiffs. 


282  GUERREIRO    V.    PEILE.  [CHAP.  IL 


GUERREIRO   v.   PEILE. 
King's  Bench.     1820. 

[3  B.  cj-  Aid.  616.] 

Trover  for  twenty-five  pipes  of  wine  ;  plea,  not  guilty.  At  the  trial 
before  Abbott,  C.  J.,  at  the  London  sittings  after  Hilary  term,  the  fol- 
lowing appeared  to  be  the  facts  of  the  case  :  The  plaintiffs,  who  were 
merchants  resident  at  Oporto,  in  May,  1818,  consigned  the  wines  in 
question  for  sale  to  Burmester  and  Vidal,  who  were  merchants  resident 
in  London.  They  employed  one  White,  a  broker,  to  sell  the  same  ;  and 
he,  on  the  29th  October,  b}'  their  orders,  made  the  two  following  con- 
tracts with  the  defendants,  which  were  both  written  on  the  same  sheet 
of  paper:  "Bought  29th  October,  1818,  for  Messrs.  Burmester  and 
Vidal,  of  Messrs.  Sol.  Peile  and  Son,  65  puncheons  of  Jamaica  rum, 
of  good  clear  merchantable  quality,  of  average  15  per  cent  over  proof, 
4s.  Id.  per  gallon  ;  coopered  and  fitted  up  free  on  board  ;  no  bill  to  be 
drawn  ;  the  qualit}'  to  be  approved  to-morrow.  Sold  29th  October, 
1818,  for  Messrs.  Burmester  and  Vidal,  to  Messrs.  Sol.  Peile  and  Son, 
25  pipes  of  port  wine,  vintage  1815,  £53  per  138  gallons,  housed  and 
all  charges  paid  ;  no  bill  to  be  drawn  ;  but  this  being  considered  a  barter 
transaction  for  the  above  65  puncheons  rum,  the  balance  is  to  be  paid 
in  cash :  as  these  wines  have  not  been  tasted  by  Messrs.  Peile  and  Son, 
this  contract  to  be  void  if  not  approved  of  to-morrow."  White  did  not 
know  that  Burmester  and  Vidal  were  only  factors  in  this  transaction  ; 
nor  was  there  any  evidence  to  show  that  the  defendants  knew  that  fact. 
In  pursuance  of  these  contracts,  Burmester  received  the  rums,  and  the 
defendants  the  wines,  and  a  balance  was  paid  to  the  latter  upon  the 
two  transactions.  In  Februar}',  1819,  Burmester  and  Vidal  became 
bankrupts,  without  having  accounted  to  the  plaintiflFs  for  the  proceeds 
of  the  wine.  White  proved  that  he  had  been  frequently  concerned  in 
similar  transactions  of  barter ;  and  other  witnesses  proved  that  it  was 
not  an  uncommon  practice  among  principals  to  barter  one  species  of 
goods  for  another.  It  was  contended  b}'  the  plaintiff,  that  Burmester 
and  Vidal,  being  merely  factors,  had  authority  to  sell  only  in  the  usual 
way  for  money,  but  not  to  barter ;  and  consequently  that  b}'  these  con- 
tracts no  property  had  passed  to  the  defendants.  The  Lord  Chief  Jus- 
tice told  the  jury  that  if  the}''  were  of  opinion  that  Peile  &  Co.  knew 
Burmester  and  Vidal  to  be  factors,  they  should  find  for  the  plaintiff; 
and  supposing  that  they  did  not  know  that  fact,  if  the  jury  thought 
that  this  was  a  transaction  in  the  ordinary  course  of  trade  when  parties 
are  dealing  with  their  own  commodities,  they  would  find  for  the  de- 
fendant. The  jur}'  found  a  verdict  for  the  defendant.  Scarlett  in  last 
Easter  term  obtained  a  rule  nisi  for  a  new  trial,  on  the  ground  that 
the  factor  in  this  case  had  exceeded  his  authority  bj-  bartering,  and 


SECT.  III.]  PECK    V.    HARRIOTT.  283 

consequently  that  no  property  passed  to  the  vendor;  and  he  cited 
Anoni/7nousy  12  Mod.  514,  and   Wiltshire  v.  /Sini.s,  1  Campb.  258. 

The  Solicitor- General,  Gurney,  and  Puller,  now  showed  cause.  The 
jury  have  found  that  this  was  a  transaction  in  the  usual  course  of  trade  ; 
and  if  so,  it  is  clear  that  the  principal  was  bound.  Although  this  ap- 
pears to  be  a  case  of  barter,  it  really  constitutes  two  distinct  contracts 
of  sale :  a  sale  of  the  rums  by  Peile,  and  a  sale  of  the  wines  by  Bur- 
mester  and  Vidal. 

Abbott,  C.  J.  My  learned  Brothers  think  that  I  ought  to  have  told 
the  jury  upon  these  facts,  that  this  was  a  transaction  of  barter,  and 
that  tlie  plaintiff's  property  was  not  divested,  because  a  factor  has  no 
authority  to  barter;  and  I  am  also  of  that  opinion.  This  rule  must 
therefore  be  made  absolute. 

Bayley,  J.  I  am  of  the  same  opinion.  Burmester  and  Vidal  had 
authority  only  to  sell,  and  that  for  money,  to  be  forthcoming  to  the 
plaintiffs.  But  in  this  case  not  one  farthing  of  money  would  ever  be 
forthcoming  to  the  plaintiffs  ;  for  the  amount  due  for  the  rums  ex- 
ceeded the  value  of  the  wine. 

HoLKOYD,  J.  I  am  of  opinion  that  Burmester  and  Vidal  had  no 
authority  to  barter.  In  looking  at  this  transaction  we  must  look  at 
the  real  nature  of  the  thing,  not  at  the  color  given  to  it  by  the  parties. 
If  this  had  been  a  sale  in  market  overt,  the  case  might  have  been  dif- 
ferent ;  but  that  not  being  so,  the  principle  of  caveat  emptor  applies, 
and  the  person  buying  is  bound  by  the  authority  which  the  person  has 
who  sells.  Where  a  factor  sells  the  goods  of  his  principal,  it  is  his 
duty  to  keep  that  sale  wholly  unconnected,  and  not  to  mix  other  mat- 
ters with  it  to  the  detriment  of  his  principal ;  and  therefore  the  rule  for 
a  new  trial  must  be  made  absolute.  Rule  absolute} 

Scarlett,  Marryat,  and  ParJce,  were  to  have  argued  in  support  of 
the  rule. 


PECK  V.    HARRIOTT. 
Supreme  Court  of  Pennsylvania.     1820. 

[6  S.  tf-  R.  146.] 

In  the  Court  of  Common  Pleas  of  Crawford  County,  to  which  this 
was  a  writ  of  error,  a  case  was  stated  for  the  opinion  of  the  Court,  to 
be  considered  as  a  special  verdict.^ 

Selden  and  Baldwin,  for  the  plaintiffs  in  error. 

Forward,  for  the  defendants  in  error. 

Duncan,  J.,  delivered  the  Court's  opinion. 

The  plaintiffs  in  error,  being  the  owners  of  certain  lands  in  the 
counties  of  Erie,  Crawford,  Warren,  and  Venango,  on  the  17th  October, 

1  Best,  J.  was  abseut  from  indisposition.  — Rep. 

2  The  reporter's  statement  is  omitted.  —  Ed. 


284  PECK   V.   HARRIOTT.  [CHAP.  IL 

1815,  constituted  one  Seth  Young,  their  attorney-,  in  their  names  to 
contract  for  sale,  sell,  and  convey*  any  parts  or  parcels  of  the  lands, 
ratifying  and  confirming  all  that  their  said  attorney  might  lawfully  do 
in  the  premises.  On  the  29th  December,  in  the  same  year,  Young 
contracted  to  sell  to  the  defendants  two  parcels  of  the  lands.  The 
vendees  covenanted  to  pay  the  purchase  money  in  four  annual  instal- 
ments, with  interest,  and  make  settlements,  and  certain  specified 
improvements  on  the  land.  The  first  instalment  became  due  on  the 
29th  December,  ISIG;  and  in  March  and  April,  1817,  the  vendees 
paid  Young  three  hundred  and  seventy  six  dollars  fifty  cents.  By 
this  article  the  vendors,  bj'  their  attorney,  covenanted,  on  payment  of 
the  whole  or  a  satisfactory-  part  of  the  monej-  and  interest,  within  the 
specified  time,  the  improvements  being  completed,  that  they,  or  their 
representative,  would  execute  a  conve3ance,  a  good  and  sufficient  war- 
rantee deed  in  fee,  provided  such  part}-  should,  on  giving  the  said  deed, 
give  bond  and  mortgage  on  the  said  premises  for  the  consideration 
money,  or  so  much  thereof  as  should  be  due. 

This  action  was  brought  for  the  whole  consideration  mone}-,  and  the 
question  submitted  to  the  Court  below  was  on  the  validity  of  the  pay- 
ments. The  Court  adjudged  they  were  valid,  and  on  this  opinion  we 
are  now  called  on  to  decide. 

Every  general  grant  implies  the  grant  of  all  things  necessary  to  the 
enjo^-raent  of  the  thing  granted,  without  which  it  could  not  be  enjo3-ed. 
Every  general  power  necessarily  implies  the  grant  of  every  matter 
necessary  to  its  complete  execution.  An  attorne}-  who  has  power  to 
conve}'  has  so  essentially  the  power  to  receive  the  purchase  money, 
that  a  voluntar}-  conveyance,  without  receiving  the  stipulated  price  or 
security  for  it,  would  be  fraudulent,  and  either  the  whole  contract 
might  be  rescinded  by  the  principal,  or  the  vendee  liable  for  the  pur- 
chase mone}-.  The  principal  authority  includes  all  mediate  powers 
which  are  necessary  to  carry  it  into  effect.  The  pa^'ment  of  the  pur- 
chase mone}'  was  an  intermediate  act  between  the  articles  and  the  con- 
veyance. The  receipt  of  the  purchase  money  is  within  the  general 
scope  of  an  authorit}'  to  sell  and  convey,  as  a  mediate  power,  as  an 
act  without  which  the  conve3'ance  would  be  fraudulent.  No  words 
could  confer  a  more  ample  authority,  than  is  conferred  by  this  instru- 
ment. He  has  power  to  contract  for  sale,  and  having  so  contracted, 
to  conve}'.  All  the  acts  he  performs,  necessar}'  in  the  premises,  are 
ratified  and  confirmed. 

I  cannot  yield  to  the  argument  that,  having  contracted  for  sale,  his 
power  ended,  because  the  language  of  the  power  is  ver}'  explicit,  that 
he  has  not  onh*  power  to  enter  into  executor}'  contracts,  but  that,  hav- 
ing entered  into  them,  he  has  power  to  execute  them  by  conveyances, 
and  we  must  not  stop  at  the  words  contract  for  sale,  and  say,  that  is  a 
distinct  power,  but  must  go  on  with  the  whole  sentence,  sell  and  con- 
ve}-.  Articles  are  the  first  step  usual  in  the  sale  of  lands  ;  the  convey- 
ance, the  last  act  which  the  attorne}-  is  authorized  to  perform.     If  h^ 


SECT.  III."]  PECK    V.    HARRIOTT.  285 

had  conveyed  on  the  receipt  of  the  whole  purchase  money,  it  is  ad- 
mitted that  this  would  have  bound  the  principal.  If  he  had  power  to 
receive  the  whole,  he  had  power  to  receive  any  part,  and  it  surely 
lies  not  in  the  mouth  of  the  principal  to  sa}',  that  because  he  has 
not  conveyed,  he  has  no  right  to  receive  the  mone}- ;  for  the  same 
objections  would  arise,  had  he  received  the  whole  money,  and  refused 
to  convey.  The  validity  of  the  payment  does  not  rest  on  the  actual 
conveyance,  but  the  power  to  convey ;  the  payment  is  to  precede  the 
conveyance.  There  is  nothing  in  the  nature  of  the  thing  to  justif)' 
such  a  construction,  nor  in  the  words  of  the  instrument,  and  it  is  a 
proposition  which  never  can  be  maintained,  that  he  had  only  power 
to  receive  the  money  when  he  had  conveyed,  and  that  it  is  the  con- 
veyance which  renders  the  payment  valid  ;  whereas,  the  conveyance 
could  onl}-  be  good  if  the  mone}'  were  paid,  if  he  had  power  to 
receive  the  money  and  convey.  If  he  has  received  the  monej-  and 
not  conveyed,  the  payment  must,  in  all  reason  and  justice,  be  binding 
on  the  principal. 

That  the  attorney  here  did  not  exceed  his  authority  in  making  the 
contract,  is  admitted  bv  this  action  calling  for  its  execution.  If  he 
did  not  exceed  his  authority  in  making  the  contract,  he  had  power  to 
carry  it  into  execution  by  conveyance.  In  order  to  enable  him  to  do 
this,  payment  of  the  money,  or  securit}',  was  so  necessary'  an  incident, 
that  without  it  the  act  would  be  fraudulent.  He  had  power  to  con- 
vey ;  to  conve}^  without  payment  would  have  been  a  fraud  on  the  prin- 
cipal ;  to  receive  the  purchase  money  could  not  be  a  fraud. 

It  is  not  pretended  that  the  power  was  revoked  ;  much  less,  that 
notice  of  the  revocation  before  payment  was  given.  It  is  not  made 
any  part  of  the  case,  that  there  was  any  fraud  on  the  part  of  the 
defendants. 

The  power  of  attorne}'  is  unrestrained  as  to  time,  credit,  or  condi- 
tion. All  the  authorit}'  that  the  principals  could  confer,  the}'  did. 
They  substituted  Young,  with  all  their  powers,  to  part  with  their  title ; 
to  convey  the  estate  in  fee  ;  to  bind  them  with  covenants  of  general 
warrant}-.  He  could  sell  on  credit,  having  the  power  to  sell  on  credit ; 
he  could  receive  the  money  fi'om  the  vendee,  unless  there  was  some- 
thing in  the  instrument  restrictive  of  this.  It  would  be  rather  an 
unusual  mode  of  conducting  business,  to  empower  an  attorney  to  sell 
and  conve}',  and  restrain  him  from  receiving  the  purchase  mone}-. 
Here,  he  is  not  so  restricted,  and  the  implication  would  be  a  con- 
strained one  ;  it  would  be  dangerous  for  the  Court  to  look  for  a  hidden 
meaning,  where  the  terms  are  neither  obscure  nor  equivocal,  or  to 
impl}'  a  restriction  of  a  power  granted  in  general  terms.  The  power  is 
not  required  to  be  executed  uno  jlatu ;  there  are  several  acts  to  be 
done,  at  several  times;  the  last  act,  the  conveyance,  not  to  be  imrae- 
diatel}'  executed,  not  to  be  executed  until  all  the  conditions  were  com- 
plied with  by  the  vendees.  The  several  payments  were  to  come  round  ; 
and  until  paid,  or  a  satisfactory  part,  and  mortgage  given  for  the  bal- 


286  ATTVVOOD   V.    MUNNINGS.  [cHAP.  IL 

ance,  under  the  general  power  to  contract  for  sale,  and  to  convej-, 
unrestrained  as  to  the  extent  of  authority,  unlimited  in  its  duration, 
remaining  in  full  force  at  the  time  of  payment,  the  Court  of  Common 
Pleas  decided  rightly,  in  determining  these  payments  to  be  valid  ;  and 
the  judgment  is  affirmed.  Judgment  affirmed. 


ATTWOOD   AND   OTHERS    V.   MUNNINGS. 
King's  Bench,  1827. 

[7  B.  Sf-  C.  278.1] 

Assumpsit  by  the  plaintiffs,  as  indorsees,  against  the  defendant,  as 
acceptor  of  a  bill  of  excliange  for  £1,560.  Plea,  the  general  issue. 
At  the  trial  before  Lord  Tenterden,C.  J.,  at  the  London  sittings  after 
Michaelmas  term,  1823,  a  verdict  was  found  for  the  plaintiffs,  subject 
to  the  opinion  of  this  court  on  the  following  case. 

The  plaintiffs  were  bankers  carrying  on  business  in  the  cit}'  of  Lon- 
don ;  the  defendant  was  a  merchant  engaged  in  extensive  mercantile 
business,  and  also  in  joint  speculations,  to  a  considerable  amount,  with 
Thomas  Burleigh,  Messrs.  Bridges  and  E^lmer,  8.  Howlett,  and  W. 
Rothery.  In  the  year  1815  the  defendant  went  abroad  on  the  partner- 
ship business,  and  remained  abroad  till  after  the  bill  upon  which  this 
action  was  brought  became  due.  By  a  power  of  attorney,  dated  the 
18th  of  May,  1816,  the  defendant  granted  power  to  W.  Rothery,  T. 
Burleigh,  and  S.  Munnings,  his  wife,  jointly  and  severally  for  him,  and 
in  his  name,  and  to  his  use,  to  sue  for  and  get  in  moneys  and  goods,  to 
take  proceedings,  and  bring  actions,  to  enforce  payment  of  moneys  due, 
to  defend  actions,  settle  accounts,  submit  disputes  to  arbitration,  sign 
receipts  for  mone}-,  accept  compositions;  "indorse,  negotiate,  and 
discount,  or  acquit  and  discharge  the  bills  of  exchange  promissory 
notes,  or  other  negotiable  securities  which  were  or  should  be  payable  to 
him,  and  should  need  and  require  his  indorsement ; "  to  sell  his  ships, 
execute  bills  of  sale,  hire  on  freight,  effect  insurances;  "  bu}',  sell, 
barter,  exchange,  export  and  import  all  goods,  wares,  and  merchan- 
dises, and  to  trade  in  and  deal  in  the  same,  in  such  manner  as  should 
be  deemed  most  for  his  interest ;  and  generally  for  him  and  in  his 
name,  place,  and  stead,  and  as  his  act  and  deed,  or  otherwise,  but  to 
his  use,  to  make,  do,  execute,  transact,  perform,  and  accomplish  all 
and  singular  such  further  and  other  acts,  deeds,  matters,  and  things  as 
should  be  requisite,  expedient,  and  advisable  to  be  done  in  and  about 
the  premises,  and  all  other  his  affairs  and  concerns,  and  as  he  might  or 
could  do  if  personally  acting  therein."  B}'  another  power  of  attorney, 
dated  the  23d  of  Jul}-,   1817,  and  executed   by  the  defendant  when 

1  s.  c.  1  M.  &  R.  66.  — Ed. 


SECT.  III.]  ATTWOOD    V.    MUNNINGS.  287 

abroad,  he  gave  to  his  wife,  S.  Munnings,  power  to  do  a  variety  of  acts 
affecting  his  real  and  personal  property  ;  '•  and  also  for  him  and  on 
his  behalf,  to  pa}'  and  accept  such  bill  or  bills  of  exchange  as  should 
be  drawn  or  charged  on  hina  by  his  agents  or  correspondents  as  occa- 
sion should  require,  &c.  ;  and  generally  to  do,  negotiate,  and  transact 
the  affairs  and  business  of  him,  defendant,  during  his  absence,  as  fully 
and  effectually  as  if  he  were  present  and  acting  therein."  T.  Burleigh 
corresponded  with  the  defendant,  and  acted  as  his  agent,  both  before 
and  after  the  receipt  of  this  power.  The  defendant,  while  abroad,  em- 
ployed part  of  the  produce  of  the  joint  speculations  in  his  individual 
concerns,  and  during  his  absence  T,  Burleigh,  for  the  purpose  of  rais- 
ing mone}-  to  pay  to  creditors  of  the  joint  concern,  who  were  become 
urgent,  drew  four  bills  of  exchange  for  £500  each  upon  the  defendant, 
dated  May  22d,  1819.  The  proceeds  of  those  bills  were  applied  in 
payment  of  partnership  debts  ;  they  were  accepted  by  the  defendant  b}' 
procuration  of  S.  M.,  his  wife.  The  bill  in  question  was  afterwards, 
in  order  to  raise  money  to  take  up  those  bills,  drawn  and  accepted  in 
the  following  form  :  "  Six  months  after  date  pay  to  m}-  order  £1,560, 
for  value  received.  T.  Burleigh.  —  Accepted  per  procuration  of  G.  G. 
H.  Munnings.  S.  Munnings."  This  bill  was  discounted  by  the  plain- 
tiffs. The  defendant  returned  to  P^ngland  in  October,  1821,  and  he, 
and  each  of  the  partners  to  the  joint  speculations,  claimed  to  be  a 
creditor  on  that  concern. 
Parke,  for  the  plaintiffs. 
Pollock,  contra. 

Bayley,  J.  This  was  an  action  upon  an  acceptance  importing  to  be 
by  procuration,  and  therefore  any  person  taking  the  bill  would  know 
that  he  had  not  the  security  of  the  acceptor's  signature,  but  of  the 
party  professing  to  act  in  pursuance  of  an  authority  from  him.  A 
person  taking  such  a  bill  ought  to  exercise  due  caution,  for  he  must 
take  it  upon  the  credit  of  the  party  who  assumes  the  authority  to  ac- 
cept, and  it  would  be  only  reasonable  prudence  to  require  the  produc- 
tion of  that  authority.  The  plaintiff  in  this  case  relies  on  the  authority 
given  by  two  powers  of  attorney,  which  are  instruments  to  be  construed 
strictly.  By  the  first  of  the  powers  in  question  the  defendant  gave  to 
certain  persons  authority  to  do  certain  acts  for  him,  and  in  his  name, 
and  to  his  use.  It  is  rather  a  power  to  take  than  to  bind  ;  and,  look- 
ing at  the  whole  of  the  instrument,  although  general  words  are  used,  it 
only  authorizes  acts  to  be  done  for  the  defendant  singly  ;  it  contains  no 
express  power  to  accept  bills,  nor  does  there  appear  to  have  been  an 
intention  to  give  it ;  the  first  power,  therefore,  did  not  warrant  this 
acceptance.  The  second  power  gave  an  express  authority  to  accept 
bills  for  the  defendant,  and  on  his  behalf  No  such  power  was  requisite 
as  to  partnership  transactions,  for  the  other  partners  might  bind  the 
firm  by  their  Acceptance.  The  words,  therefore,  must  be  confined  to 
that  which  is  their  obvious  meaning,  viz.  an  authority  to  accept  in 
those  cases  where  it  was  right  for  him  to  accept  in  his  individual  ca- 


288  MARTIN    V.    GREAT   FALLS    MANUFACTURING   CO.  [CHAP.  II. 

pacity.  Besides,  the  bills  to  be  accepted  are  those  drawn  by  the  defend- 
ant's agents  or  correspondents  ;  but  the  drawer  of  the  bill  in  question 
was  not  his  agent  quoad  hoc.  The  bills  are  to  be  accepted,  too,  "  as 
occasion  shall  require."  It  would  be  dangerous  to  hold  that  the  plain- 
tiff in  this  case  was  not  bound  to  inquire  into  the  propriety-  of  accept- 
ing. He  might  easily  have  done  so  b}-  calling  for  the  letter  of  advice  ; 
and  I  think  he  was  bound  to  do  so.  For  these  reasons,  I  am  of  opinion 
that  judgment  of  nonsuit  must  be  entered. 

HoLROYD,  J.  I  agree  in  tliinlving  tliat  the  powers  in  question  did 
not  authorize  this  acceptance.  Tlie  word  2^''OCura.tion  gave  due  notice 
to  the  plaintiffs,  and  they  were  bound  to  ascertain,  before  tliey  took  the 
bill,  that  the  acceptance  was  agreeable  to  the  autliority  given.  The 
case  does  not  state  sufficient  to  show  that  this  bill  was  drawn  by  an 
agent  in  that  capacity,  but  ratlier  the  contrary  ;  for  it  appears  tliat  it 
was  drawn  to  raise  money  for  the  joint  concern  in  wliich  the  drawer 
was  a  partner ;  it  does  not,  therefore,  come  witliin  the  special  power. 
Then  as  to  the  general  powers.  These  instruments  do  not  give  general 
powers,  speaking  at  large,  but  only  where  they  are  necessary  to  carry 
the  purposes  of  the  special  powers  into  effect. 

LiTTLEDALE,  J.  I  am  of  the  same  opinion.  It  is  said  that  third 
persons  are  not  bound  to  inquire  into  the  making  of  a  bill ;  but  that  it 
is  not  so  where  the  acceptance  appears  to  be  by  procuration.  The 
question  then  turns  upon  the  authority  given.  The  first  power  of 
attorney  contains  an  authority-  to  indorse,  but  not  to  accept  bills  ;  the 
latter,  therefore,  seems  to  have  been  purposely  omitted.  Neither  is 
this  varied  by  the  general  words,  for  they  cannot  apply  to  any  thing  as 
to  which  limited  powers  are  given.  The  second  power  gives  authority 
"  to  accept  for  me  and  in  m}'  name  bills  drawn  or  charged  on  me  by 
my  agents  or  correspondents,  as  occasion  shall  require."  The  latter 
words,  as  to  the  occasion,  do  not  appear  to  me  to  vary  the  question  ; 
and,  reading  the  sentence  without  them,  it  authorizes  the  acceptance 
of  bills  drawn  by  an  agent.  The  present  bill  was  not  drawn  b}'  Bur- 
leigh in  his  character  of  agent,  and  therefore  the  acceptance  was 
without  sufficient  authority',  and  the  plaintiff  cannot  recover  upon  it. 

Postea  to  the  defendant} 


MARTIN  V.   GREAT  FALLS   MANUFACTURING  CO. 

Superior  Court  of  New  Hampshire.     1837. 

[9  N.  H.  51.] 

Assumpsit  for  money  had  and  received. 

On  the  trial,  the  plaintiff  produced  the   following  memorandum  in 
writing,   viz. :  "  Borrowed  of  Noah  Martin,  for  the  Co.,  one  hundred 

1  See  Alexander  u.  Mackenzie,  6  C.  B.  766  (1848).  —  Ed. 


SECT.  III.]  MARTIN   V.    GREAT   FALLS    MANUFACTUUING   CO.  289 

and  fifty  dollars.  C.  Cutler.  Jan'y  9,  1834."  And  he  proved  that,  on 
the  date  of  the  memorandum,  Cutler,  the  signer,  who  had  been  in  the 
employ  of  the  defendants,  as  a  clerk,  made  application  to  him,  saying 
he  wanted  the  mone}'  for  the  company,  as  they  had  some  settlements 
to  make,  and  that  it  should  be  returned  in  a  few  days  ;  and  that  he 
thereupon  let  Cutler  have  the  money,  taking  the  memorandum  before 
mentioned. 

It  appeared  that  one  Wells  was  at  the  time  the  general  agent  of  the 
com[)auy,  I.  L.  Folsom  the  general  clerk,  B.  C.  Sewell  principal  clerk 
in  the  counting-room  for  the  cotton  business,  and  that  Cutler  had  been 
a  clerk  in  the  latter  counting-room  for  some  time  before  the  said  9th 
of  Januar\',  1834,  but  that  for  four  or  five  days  previous  to  that  date 
he  had  absented  himself  from  his  business.  It  did  not  appear  that  tliis 
fact  was  known  to  the  plaintiff.  On  said  9th  da^-  of  Januar}-,  after 
borrowing  the  monej',  he  al)sconded,  and  converted  the  money  to  his 
own  use.  There  was  no  evidence  that  Cutler  ever  had  an}'  express 
authority  to  borrow  money  on  the  credit  of  the  company,  or  for  their 
use  ;  but  in  order  to  show  that  the  compan}-  were  liable  for  the  loan 
thus  made,  the  plaintiff  introduced  ths  evidence  of  Z.  Crowell,  that 
Cutler  had  several  times  borrowed  money  at  the  store  of  Crowell  (fe 
Wingate,  which  he  said  was  for  the  company,  and  which  had  been 
repaid,  generally  b}'  Cutler  himself,  but  that  one  loan  of  $500  thus 
made,  Sept.  13,  1833,  for  wliich  Cutler  gave  a  paper  in  which  the 
company's  name  was  mentioned,  was  repaid  by  Sewell,  and  that  Sewell 
made  no  objection,  at  the  time  of  the  payment,  to  the  authority  of 
Cutler  to  borrow,  and  the  witness  never  inquired  respecting  his 
authority  of  any  one. 

In  another  instance,  six  months  or  a  year  before  he  absconded,  Cut- 
ler borrowed  thirty  or  fort}'  dollars  of  another  person,  and  gave  a  due 
bill,  signed  with  his  name  and  the  initials  of  the  company,  which  was 
afterwards  presented  at  the  counting  room,  Sewell  and  Cutler  being 
present,  and  Sewell  paid  it,  no  objections  being  made. 

It  appeared  further,  from  the  testimon}'  of  Sewell,  that  he  had 
charge  of  paying  all  the  bills  in  the  cotton  department;  that  he 
received  the  money  for  that  purpose  from  Folsom,  the  general  clerk,  to 
whom  he  gave  receipts,  and  that  he  had  authoritv  from  Folsom  to  bor- 
row money  when  necessary,  and  exercised  that  authorit}',  and  borrowed 
of  tlie  merchants  ;  that  the  usual  pay  dav  was  Friday,  but  that  the 
laborers  sometimes  left,  and  were  settled  with  on  other  daj's ;  that  Cut- 
ler was  a  clerk  in  the  same  counting  room,  engaged  in  keeping  the 
books,  but  had  nothing  to  do  in  the  usual  course  of  his  business  in 
pajing  out  money,  nor  any  authority  to  borrow,  and  that  he  never 
intrusted  him  so  to  do  ;  but  that  Cutler  had,  perhaps  half  a  dozen 
times,  in  his  absence,  paid  out  divers  sums  to  the  hands,  and  witness 
on  his  return  accounted  and  settled  with  Cutler  for  the  same  ;  that  on 
one  occasion,  which  he  tliought  was  in  February,  1833,  after  he  had  so 
accounted  and  settled  with  him,  Cutler  said  he  had  borrowed  monc}'  of 

19 


290  MARTIN    V.    GREAT    FALLS    MANUFACTURING   CO.         [CHAP.  IL 

Crowell  &  Wingate  during  his  absence,  and  he  wished  witness  to  take 
the  mone}-  and  pay  it,  which  he  did  ;  that  he  did  not  know  of  his  hav- 
ing borrowed  in  the  name  of  the  company,  and  did  not  recollect  how 
the  due  bill  he  took  up  was  signed,  but  thought  it  probable  it  might 
have  been  signed  as  stated;  that  in  July,  1833,  Wells,  the  general 
agent,  said  to  Cutler  that  he  had  heard  that  he  had  borrowed  money 
on  the  credit  of  the  company,  and  inquired  if  it  was  true  ;  and  on  Cut- 
ler's finally  acknowledging  that  it  was,  Wells  forbid  him,  and  all  the 
rest  of  the  clerks  in  the  counting  room,  except  himself,  from  borrow- 
ing. It  did  not  appear  that  the  plaintiff  had  ever  lent  any  money  to 
Cutler  before,  or  had  any  knowledge  respecting  Cutler's  borrowing 
before,  or  of  the  prohibition  b}'  Wells,  as  before  stated. 

Upon  this  evidence  the  Court  directed  a  verdict  for  the  defendants, 
subject  to  future  consideration. 

Marston  and  Wells,  for  the  plaintiff. 

Christie,  for  the  defendants. 

Green,  J.  The  evidence  clearly  fails  to  show  either  that  Cutler  had 
a  general  authorit}'  to  borrow  money  on  the  credit  of  the  company',  or 
that  any  particular  authority'  was  given  him  to  obtain  the  loan  which 
is  the  subject  of  this  suit ;  and  unless  the  conduct  of  the  defendants 
was  such  as  to  create  a  well  founded  belief  in  the  plaintiff  that  he  had 
general  or  special  power  for  the  purpose,  the  action  cannot  be  sus- 
tained. Had  Cutler,  before  the  time  of  effecting  the  loan  in  question, 
frequently  borrowed  money  of  the  plaintiff,  and  given  assurances  in  the 
company's  name  for  repayment,  and  had  the  company  afterwards  dis- 
charged the  debts  without  objection,  this  would  have  afforded  ground 
for  the  support  of  the  present  action  against  the  companj'.  Such  a 
course  of  conduct,  on  the  pai't  of  the  company-,  must  have  led  the 
plaintiff  to  suppose  that  Cutler  was  dulj'  authorized  to  borrow  ;  and,  to 
say  the  least,  it  would  have  been  unjust  in  them  to  refuse  affirming  his 
contract,  when  he  proved  unfaithful  to  his  trust.  It  would,  in  effect, 
be  sanctioning  the  doings  of  their  agent  when  his  measures  proved 
beneficial,  and  denying  his  authorit}-  when  the}'  proved  otherwise. 

Another  state  of  things  might  perhaps  have  given  the  plaintiff  isuffi- 
cient  grounds  for  recovery  against  the  company.  Had  Cutler  been  in 
the  habit  of  borrowing  money  of  any  and  all  the  traders  in  the  neigh- 
borhood, and  pledging  the  company's  name  for  the  payment,  and  had 
the  compau}'  uniformly  discharged  those  claims  without  objection,  and 
had  all  this  been  known  to  the  plaintiff  when  he  made  the  loan  in  ques- 
tion, it  is  by  no  means  certain  that  the  company*  would  not  have  been 
answerable. 

But  the  case  finds  that  the  loan  in  question  was  the  onl}'  one  ever 
obtained  from  the  plaintiff  in  the  name  of  the  companj'  b}'  Cutler ; 
and  although  it  is  in  evidence  that  Cutler,  in  one  or  two  instances, 
effected  loans  in  the  company's  name,  of  other  persons,  which  were 
paid  by  the  proper  officer  of  the  company,  yet  it  does  not  appear  that 
these  circumstances  were   known  to  the  plaintiff,  and   consequently 


SECT.  III.]  HATCH   V.    TAYLOK.  291 

they  could  form  no  inducement  to  him  to  make  the  loan  iu  question  on 
the  credit  of  the  company. 

The  company  never  authorized  Cutler  to  pledge  their  credit,  or 
recognized  his  contracts.  The  other  agents  of  the  company-  had  not 
conferred,  and  it  does  not  appear  that  they  had  power  to  confer,  such 
authorit}'  on  him  ;  and  the  payment,  by  a  sub-agent,  of  monej-  bor- 
rowed by  Cutler,  and  which  came  to  the  use  of  the  company,  cannot  be 
construed  as  giving  him  a  credit  for  that  purpose.  Besides,  the  plain- 
tiff did  not  loan  on  the  faith  of  those  transactions.  The  necessary 
requisites  are,  therefore,  wanting  to  charge  the  defendants,  and  let 
judgment  be  rendered  on  the  verdict. 

Judgment  for  defendants.^ 


HATCH  I'.    TAYLOR. 

Sdperiok  Court  of  New  Hampshire.     1840. 

[10  N.  H.  538.] 

Trespass,  for  taking  a  horse  of  the  plaintiff,  on  the  5th  of  March, 
1836. 

On  the  trial  it  appeared  that  the  defendant,  in  February,  1836,  was 
the  owner  of  two  horses,  one  black,  the  other  white,  usually  worked 
together ;  and  that  they  were  hired  by  one  Asa  Clark,  for  the  purpose 
of  drawing  a  load  of  goods  from  Lowell,  in  Massachusetts,  to  Thornton, 
in  this  State. 

While  Clark  had  the  horses  in  Thornton,  he  exchanged  one  of  them, 
with  the  plaintiff,  for  a  mare  and  colt ;  the  plaintiff  supposing  that  the 
horses  belonged  to  Clark.  The  mare  died  at  Concord,  while  Clark  was 
on  his  return  to  Lowell.  The  other  horse,  with  the  colt,  was  taken  by 
Clark  to  the  defendant,  in  Methuen,  and  Clark  informed  the  defendant 
of  the  trade.  The  defendant  refused  to  sanction  it,  and  told  Clark  to 
take  the  colt  away.  Clark  soon  afterwards  took  the  colt  to  Derr}- ;  one 
Emerson,  who  was  present  in  Thornton  when  Clark  exchanged  for  the 
colt,  and  the  defendant,  being  with  him  ;  and  Emerson  there  purchased 
the  colt  of  Clark,  the  defendant  being  present,  and  making  no  objection, 
but  furnishing  Emerson,  wlio  was  poor,  with  money  to  pay  for  him. 
After  this  purchase  the  defendant  proceeded,  with  Emerson,  to  Kings- 
ton, where  Emerson  exchanged  the  colt  with  one  Orrin  Spofford,  for  a 
mare,  the  defendant  furnishing  money  to  pay  the  difference.  Emerson 
sold  the  mare  on  the  next  day  to  the  defendant.  Immediatel}'  after 
^  this  the  defendant  went  to  Thornton,  and  took  the  horse  in  question 
from  the  possession  of  the  plaintiff,  denying  the  right  of  Clark  to  make 
any  such  exchange. 

1  Compare  Gillman  r.  Robinson,  1  C.  &  P.  642  (1825) ;  Prescott  v.  Fliuu,  9  Bing 
19  (1832) ;  Valentine  v.  Packer,  5  Pa.  333  (1847).  —Ed. 


292  HATCH    V.   TAYLOR.  [CHAP.  II. 

There  was  evidence,  on  the  part  of  the  plaintiff,  tending  to  sliow  that 
Clark,  when  he  left  Lowell,  was  empowered  b}-  the  defendant  to  sell  or 
exchange  this  horse.  This  evidence  was  derived  principally  from  the 
declarations  of  the  defendant,  subsequent  to  the  time  of  the  exchange, 
and  was  somewhat  contradictory  in  stating  what  he  had  told  Clark  he 
might  do  respecting  a  sale  or  exchange  of  the  horses  ;  in  some  instances 
denying  that  Clark  had  any  liberty  to  trade  away  the  horses  ;  in  others, 
admitting  that  he  said  to  Clark  he  might  sell  if  he  had  a  chance  to  sell 
both  ;  and  in  another  stating  that  he  told  him  he  did  not  intend  to  have 
one  of  the  horses  put  away  without  the  other,  and  not  to  put  the  horses 
away  unless  he  put  off  both.  One  witness  stated  that  the  defendant, 
when  he  took  the  horse  in  question  from  the  plaintiff,  in  Thornton,  said 
Clark  had  no  business  to  trade  ;  that  he  told  him  not  to  part  the  span  ; 
that  he  told  him  if  he  could  put  them  away  and  get  a  good  five  year  old 
horse  and  boot  enough,  he  might ;  instead  of  which  he  had  got  a  little 
shark  of  a  colt,  and  a  mare  he  had  not  seen,  Clark  having  left  her  at 
Concord,  on  his  way  down. 

The  defendant  offered  evidence  tending  to  show  that  he  never  gave 
Clark  any  authority  to  dispose  of  the  horses ;  or  that,  if  he  had  any 
authority,  it  was  a  permission  to  sell  them  if  he  could  get  a  good  price, 
and  could  sell  both,  but  not  to  sell  either  alone  ;  and  he  contended  that, 
if  Clark  was  empowered  to  sell,  that  would  not  authorize  him  to  ex- 
change ;  and  further,  that  if  Clark  was  authorized  to  sell,  or  exchange, 
on  condition  that  he  should  sell  or  exchange  both,  and  not  otherwise, 
his  act  in  disposing  of  one  was  void,  because  not  in  pursuance  of  his 
authority. 

The  plaintiff  contended,  that  there  was  sufficient  evidence  that  Clark 
was  autkorized  to  make  the  exchange ;  and  further,  that  the  purchase 
of  the  colt  b}'  Emerson  was  a  pretence,  being  for  the  benefit  of  the 
defendant ;  and  that  what  was  tlius  done  was  a  ratification  by  the  de- 
fendant of  the  act  of  Clark  in  making  the  exchange. 

The  Court  instructed  the  jury,  that,  when  an  authority  is  given  to  an 
agent  to  make  a  sale,  it  must  be  strictly  pursued  in  order  to  bind  the 
principal ;  that  an  authorit}'  to  sell  would  not  authorize  the  agent  to 
barter  or  exchange,  and  if  he  undertook  to  do  so  his  act  would  be  void  ; 
but  that  there  was  a  distinction  between  an  authorit}'  to  act  for  the 
principal,  and  instructions  as  to  the  mode  of  executing  the  authority  ; 
and  that  if,  in  this  ease,  Clark  had  authority  to  sell  or  exchange  both 
horses,  coupled  with  directions  to  dispose  of  both  or  neither,  and  he 
disobeyed  the  instructions  in  this  particular,  and  exchanged  one  with- 
out the  other,  that  was  a  matter  between  him  and  his  principal,  and  the 
principal  would  be  bound  b}'  his  act. 

The  court  further  directed  the  jury,  that,  if  Clark  had  no  previous 
authority  to  make  the  exchange,  the  defendant  might  ratify  it  after- 
wards, and  such  ratification  would  bind  him  ;  that  his  standing  by  and 
seeing  Clai-k  sell  the  colt,  without  taking  any  part,  and  making  no  ob- 
jection, would  not  amount  to  such  ratification  ;  but  that  if  he  had  any 


SECT.  III.]  HATCH   V.   TAYLOR.  293 

agency  wliatever  in  the  sale  of  the  colt  b}-  Clark  to  Einerson,  or  after- 
wards in  the  exchange  of  him  b}*  Emerson  with  Spotford,  that  would 
amount  to  a  ratification  of  the  contract  between  Clark  and  the  plaintiff, 
and  bind  the  defendant;  that  it  would  be  a  fraud  in  the  defendant  to 
assist  in  disposing  of  the  colt,  and  then  claim  the  horse  ;  that  it  was 
quite  enough  that  he  niiglit  be  permitted  to  look  on  and  see  Clark  sell 
the  colt,  witliout  interfering  to  prevent  him  ;  that  if  he  went  beyond 
this  and  took  any  active  agency  in  disposing  of  him,  he  was  then  bouud 
by  the  exchange  whicii  Clark  had  made  ;  and  that  in  such  case,  whether 
Clark  had  any  previous  authoritj-  or  not,  the  plaintiff  was  entitled  to 
recover. 

The  jury  having  returned  a  verdict  for  the  plaintiff,  the  defendant 
excepted  to  the  foregoing  instructions,  and  moved  for  a  new  trial. 

JBell  and  Quhicy,  for  the  defendant. 

Bartlett  and  Rogers^  for  the  plaintiff. 

Parker,  C.  J.  It  cannot  be  known,  from  the  case  before  us,  whether 
the  jury  found  that  Clark  did  not  exceed  his  authority  in  making  the 
exchange  ;  or  whether  the  verdict  was  based  upon  a  ratification  of  the 
transaction  h\'  the  acts  of  the  defendant  afterwards.  If,  therefore, 
the  instructions  to  the  jury  were  not  substantially'  correct  upon  either 
of  these  points,  there  must  be  a  new  trial. 

Thei-e  was  sufficient  evidence  to  warrant  a  finding  that  Clark,  when 
he  received  the  horses  from  the  defendant,  had  an  authority  of  some 
description  given  him  respecting  a  sale  or  exchange  of  one  or  both  of 
them.  What  this  authority  was,  whether  to  sell  or  exchange,  and  what 
were  the  limitations  upon  it,  or  tlie  instructions  of  the  defendant  rela- 
tive to  the  manner  of  its  execution,  did  not  ver^'  clearlj-  appear  ;  the 
authorit}-  itself  having  been  conferred  verball}*,  and  the  evidence  estab- 
hshing  its  existence,  and  what  was  said  about  it,  being  derived  mainly 
from  the  subsequent,  and  in  some  instances  contradictory,  declarations 
of  the  defendant  himself. 

The  instructions  to  the  jury  take  a  distinction  between  the  authority 
given  to  an  agent,  which  he  is  not  onlj-  bound  to  pursue  in  dut\-  to  his 
principal,  but  a  deviation  from  which  will  render  his  act  void,  (unless 
he  has  been  held  out,  or  enabled  to  hold  himself  out,  as  having  a  differ- 
ent authorit}',)  and  the  instructions  or  directions  which  he  ma}'  receive 
from  his  principal,  relative  to  the  manner  in  which  he  is  to  execute  his 
authorit}',  which  are  matters  between  the  principal  and  agent,  so  that 
a  disregard  of  them  by  the  tatter,  although  it  ma\'  make  him  liable  to 
the  principal,  will  not  vitiate  the  act,  if  it  be  done  within  the  scope  of 
the  authority  itself 

It  is  very  apparent  that  such  a  distinction  must  exist  in  some  cases 
of  agenc}',  the  particular  instructions  from  the  principal  relative  to  the 
circumstances  under  which  the  agent  is  to  act  being  intended  as  direc- 
tions for  his  guidance,  but  not  operating  as  limitations  upon  the  author- 
ity which  is  conferred.  Thus  in  case  of  a  general  agent,  authorized  to 
transact  all  business  of  a  particular  kind,  although  he  can  bind  his  em- 


294  HATCH    V.    TAYLOR.  [CHAP.  IL 

plo3'er  only  hj  acts  within  the  scope  of  his  authority,  yet  that  authority 
is  distinct  from  private  orders  or  instructions  relative  to  the  mode  in 
which  it  is  to  be  executed  ;  and  the  latter  cannot  limit  or  impair  the 
authority,  or  affect  the  rights  of  a  party  dealing  witli  the  agent,  unless 
he  had  knowledge  of  such  private  instructions.  The  books  so  uniformly 
concur  in  establisliing  tliis  principle,  that  it  is  unnecessary  to  cite  au- 
thorities in  support  of  it.  Strangers  cannot  look  to  the  private  commu- 
nications that  may  pass  between  a  principal  and  his  agent.  15  East, 
43,  408  ;  5  Bing.  442  (E.  C.  L.  R.  500). 

But  whatever  was  the  extent  of  Clark's  authorit}-  in  the  present  case, 
he  was  not  a  general,  but  a  special  agent,  authorized  to  make  a  sale,  or 
exchange,  of  one  or  two  horses  onl}- ;  and  the  question  arises  how  fai 
the  same  rule  is  applicable  to  agencies  of  that  character. 

To  a  very  considerable  extent  the  principles  applicable  to  general 
agencies  apply  also  to  those  of  a  special  and  limited  character.  Thus 
the  general  principle,  that  the  acts  of  the  agent,  within  the  scope  of  his 
authority,  bind  his  employer ;  and  that  his  acts  beyond  that  point  are 
void,  unless  the  principal  has  held  him  out,  or  enabled  him  to  hold 
himself  out,  as  having  more  enlarged  powers  than  he  actually  pos- 
sessed, or  unless  the  employer  ratifies  his  acts,  is  applicable  to  all 
classes  of  agencies. 

It  is  contended,  however,  that  the  distinction  between  authorit}'  and 
instructions  does  not  apply  in  cases  of  special  agents ;  and  the  defend- 
ant's counsel  rely  particularly  upon  a  treatise  on  Agenc}',  recentl}' 
published,  which,  it  must  be  admitted,  in  some  measure  sustains  their 
position.  Speaking  of  the  nature  and  extent  of  the  authority  of  agents, 
the  author  refers  to  "  the  distinction  commonly  taken  between  the  case 
of  a  general  agent,  and  that  of  a  special  agent ;  the  former  being  ap- 
pointed to  act  in  his  principal's  affairs  generally',  and  the  latter  to  act 
concerning  some  particular  object;"  and  says:  "In  the  former  case 
the  principal  will  be  bound  by  the  acts  of  his  agent  within  the  scope 
of  the  general  authorit}'^  conferred  on  him,  although  he  violates  by 
those  acts  his  private  instructions  and  directions,  which  are  given  to 
him  by  the  principal,  limiting,  qualifying,  suspending  or  prohil)iting 
the  exercise  of  such  authority'  under  particular  circumstances.  In  the 
latter  case,  if  the  agent  exceeds  his  special  and  limited  authority  con- 
ferred on  him,  the  principal  is  not  bound  b}'  his  acts  ;  but  they  become 
mere  nullities  so  far  as  he  is  concerned ;  unless,  indeed,  he  has  held 
him  out  as  possessing  a  more  enlarged  authority."  Story  on  Agency, 
115.  The  phraseolog}-  of  this  last  clause  is  similar  in  substance  to  that 
of  other  elementarj'  writers.  2  Kent's  Com.,  Lecture  41  ;  1  Livermore 
on  Agency,  108.  Taken  strictly,  as  it  stands,  there  can  be  no  doubt 
of  the  correctness  of  the  rule.  If  a  special  agent  exceed  his  special 
and  limited  authority,  without  doubt  the  principal  is  not  bound  b}'  his 
acts,  unless  he  has  held  him  out,  or  enabled  him  to  hold  liimself  out, 
as  possessing  a  more  enlarged  autliority.  But  from  its  connection  with 
the  preceding  clause,  and  from  its  general  connection  with  the  con- 


SECT.  III.]  HATCH    V.    TAYLOR,  295 

text,  this  clause  is  understood  as  asserting  tliat  if  a  special  agent  ex- 
ceeds the  special  and  limited  private  instructions  or  directions  which 
are  given  him  by  the  principal,  limiting  or  qualifying,  suspending  or 
prohibiting  the  exercise  of  his  agency  under  particular  circumstances, 
the  principal  will  not  be  bound,  unless  he  has  held  the  agent  out  as 
possessing  a  more  enlarged  authority  than  the  right  to  act,  coupled 
with  the  instructions,  would  give  him.  In  other  words,  that  instruc- 
tions or  directions  to  a  special  agent,  notwithstanding  they  are  private 
or  secret,  if  intended  to  operate  upon,  and  limit,  qualify,  suspend,  or 
prohibit  the  action  of  the  agent  under  certain  circumstances,  become 
part  and  parcel,  and  of  the  essence  of  the  authority  itself,  so  that  the 
agent  will  not  be  acting  within  the  scope  of  his  authority,  or  apparent 
authority,  if  he  disregard  them.  So  it  seems  to  be  understood  by  the 
defendant's  counsel ;  and  upon  a  subsequent  page  it  is  stated  that  if 
a  common  person,  not  a  factor,  should  be  emploj-ed  to  make  a  sale, 
"and  he  should  violate  his  private  instructions,  and  deviate  from  his 
authority  in  the  sale,  the  principal  would  not  be  bound."  Story  on 
AgentT,  122. 

If  this  is  so,  there  can  be,  ordinarih',  no  such  thing  as  instruc- 
tions, contradistinguished  from  authority,  in  the  case  of  a  special 
agent ;  as  whatever  directions  he  receives  respecting  the  mode  and 
manner  in  which  he  is  to  perform  his  duties  will  partake  of  the  nature 
of  authority",  or  qualification  of  authority,  and  limit  or  suspend  his 
right  to  act,  and  to  bind  the  principal,  unless  there  has  been  some 
holding  out  of  the  agent  as  having  an  authority  beyond  the  import  of 
such  directions. 

But  it  is,  we  think,  apparent  enough,  that  all  which  ma}'  be  said  to 
a  special  agent,  about  the  mode  in  which  his  agency  is  to  be  executed, 
even  if  said  at  the  time  that  the  authority  is  conferred,  or  the  agency 
constituted,  cannot  be  regarded  as  part  of  the  authority  itself,  or  as  a 
qualification  or  limitation  upon  it.  There  mav  be  at  all  times,  upon 
the  constitution  of  a  special  agenc}",  and  there  often  is,  not  only  an 
authorit}-  given  to  the  agent,  in  virtue  of  which  he  is  to  do  the  act 
proposed,  but  also  certain  communications,  addressed  to  the  private 
ear  of  the  agent,  although  they  relate  to  the  manner  in  which  the 
authority  is  to  be  executed,  and  are  intended  as  a  guide  to  direct  its 
execution.  These  communications  may,  to  a  certain  extent,  be  in- 
tended to  limit  the  action  of  the  agent ;  that  is,  the  principal  intends 
and  expects  that  the}'  shall  be  regarded  and  adhered  to  in  the  execu- 
tion of  the  agency  ;  and  should  the  agent  depart  from  them  he  would 
violate  the  instructions  given  him  by  the  principal,  at  the  time  when 
he  was  constituted  agent,  and  execute  the  act  he  was  expected  to  per- 
form in  a  case  in  which  the  principal  did  not  intend  that  it  should  be 
done.  And  yet  in  such  case  he  may  have  acted  entireh'  within  the 
scope  of  the  authority  given  him,  and  the  principal  be  bound  by  his 
acts.  This  could  not  be  so,  if  those  communications  were  limitations 
upon  the  authority  of  the  agent.     It  is  onl}'  because  they  are  not  to  be 


296  HATCH  V.    TAYLOR.  [CHAP.  IL 

regarded  as  part  of  the  authorit}-  given,  or  a  limitation  upon  that  au- 
thority, that  the  act  of  the  agent  is  valid,  although  done  in  violation  of 
them  ;  and  the  matter  depends  upon  the  character  of  tlie  communica- 
tions thus  made  b}'  the  principal,  and  disregarded  by  the  agent.  Thus 
where  one  person  employs  another  to  sell  a  horse,  and  instructs  him  to 
sell  him  for  $100,  if  no  more  can  be  obtained,  but  to  get  the  best  price 
he  can,  and  not  to  sell  him  for  less  than  that  sum,  and  not  to  state  how 
low  he  is  authorized  to  sell,  because  that  will  prevent  him  from  obtain- 
ing more,  such  a  private  instruction  can  with  no  propriety  be  deemed 
a  limitation  upon  his  authorit}'  to  sell ;  because  it  is  a  secret  matter 
between  the  principal  and  agent,  which  any  person  proposing  to  pur- 
chase is  not  to  know,  at  least  until  the  bargain  is  completed.  And  if 
no  special  injunction  of  secrecy  was  made,  the  result  would  be  the 
same  ;  for  from  tlie  nature  of  the  case  such  an  instruction,  so  far  as 
it  regards  the  minimum  price,  must  be  intended  as  a  private  matter 
between  the  principal  and  agent,  not  to  be  communicated  to  the 
persons  to  whom  he  proposed  to  make  a  sale,  from  its  obvious  ten- 
dency to  defeat  the  attempt  to  obtain  a  greater  sum,  which  was  the 
special  duty  of  the  agent.  It  will  not  do  to  sa}-  that  the  agent  was 
not  authorized  to  sell,  unless  he  could  obtain  that  price.  That  is  the 
very  question,  whether  such  a  private  instruction  limits  the  authority 
to  sell. 

It  seems  very  clear  that  any  one  who  proposes  to  deal  with  a  special 
agent  has  the  right,  in  the  first  place,  to  know  what  authority  he  pos- 
sesses, and  all  the  limitations  upon  it.  He  deals  with  him  at  his  peril, 
because  he  is  bound  to  inquire  into  the  nature  and  extent  of  the  author- 
ity conferred.  Snow  v.  Perry,  9  Pick.  R.  542  ;  Schimmelpennick  o. 
Bayard,  1  Peters'  S.  C.  R.  264  ;  Storj'  on  Agency,  124. 

The  principal  is  not  to  be  bound  by  the  acts  of  the  special  agent 
beyond  what  he  has  authorized,  because  he  has  not  misled  the  confi- 
dence of  the  part}-  dealing  with  him,  or  enabled  the  agent  to  practise 
any  deception  ;  has  never  held  the  agent  out  as  having  an}'  general 
authorit}'  whatever  in  the  premises  ;  and  if  the  other  party  trusts  with- 
out inquiry,  he  trusts  to  the  good  faith  of  the  agent,  and  not  to  that  of 
the  principal.     Stor}',  125. 

But  to  what  purpose  is  the  part}-  dealing  with  the  agent  to  inquire 
respecting  that  which  he  is  not  to  know,  and  what  duty  exists  upon 
him  to  know  that  which  by  the  express  direction  of  the  principal,  or 
from  the  nature  of  the  case,  is  to  be  concealed  from  him  ?  Or  how  can 
it  be  said  that  he  trusts  the  agent,  respecting  the  limit  at  which  he  is 
authorized  to  sell,  or  purchase,  when,  if  lie  asks  respecting  that  limit, 
the  principal  has  precluded  him  from  ascertaining  what  it  is?  \yho, 
in  fact,  places  confidence  in  the  agent  in  a  case  like  that  above  stated, 
and  who  has  enabled  the  agent  to  practise  deception,  if  deception  takes 
place  ? 

So  far  as  a  party  dealing  with  a  special  agent  is  bound  to  inquire 
respecting  his  authority,  so  far  he  is  entitled  to  a  definite  and  distinct 


SECT.  III.]  HATCH    V.    TAYLOR.  297 

answer.  And  so  far  as  he  is  bound  to  inquire  and  to  know,  it  is  bad 
faitli  and  fraud  to  conceal  an3thing  from  liim.  But  would  it  be  deemed 
bad  faith  in  the  agent  to  say  nothing  as  to  the  price  at  which  he  was 
instructed  to  sell,  if  the  market  would  afford  him  no  better?  It  may 
very  safel}^  be  asserted  that  this  is  not  usually  practised,  either  b}- 
general  or  special  agents  ;  and  a  great  change  in  the  ordinary-  mode  of 
dealing  must  take  place  before  the  morality  of  contracts  could  be  con- 
sidered as  requiring  such  a  disclosure.  It  would  certainly-  not  be 
required  of  the  owner  of  property,  in  making  a  sale,  to  state  what  was 
the  lowest  price  he  had  determined  to  receive,  if  the  part}'  propos- 
ing to  purchase  would  give  no  more  ;  and  it  is  as  little  expected  of  an 
agent,  who  is  employed  to  get  the  best  price  he  can  obtain,  but  directed 
not  to  sell  for  less  than  a  certain  sum. 

So  in  the  case  of  a  person  employed  to  purchase,  if  the  employment 
be  to  purchase  an  article  at  the  best  possible  price,  with  private  direc- 
tions that  he  may  give  a  certain  sum,  but  no  more.  The  permission  to 
give  this  sum,  and  the  direction  not  to  exceed  it,  are  not  ordinarily-  to 
be  communicated  to  those  with  whom  he  negotiates  for  a  purchase, 
although  intended  to  control  the  action  of  the  agent  himself.  The 
employer  trusts  the  agent. 

No  man  is  at  liberty  to  send  another  into  the  market  to  buy  or  sell 
for  him  as  his  agent,  with  secret  instructions  as  to  the  manner  in  which 
he  shall  execute  his  agency,  which  are  not  to  be  communicated  to  those 
with  whom  he  is  to  deal ;  and  then,  when  his  agent  has  deviated  from 
those  instructions,  to  sa}'  that  he  was  a  special  agent ;  that  the  instruc- 
tions were  limitations  upon  his  authority  ;  and  that  those  with  whom 
he  dealt  in  the  matter  of  his  agenc}-  acted  at  their  peril,  because  thej' 
were  bound  to  inquire,  where  inquirj-  would  have  been  fruitless,  and  to 
ascertain  that  of  which  the}'  were  not  to  have  knowledge.  It  would 
render  dealing  with  a  special  agent  a  matter  of  great  hazard.  If  the 
principal  deemed  the  bargain  a  good  one,  the  secret  orders  would  con- 
tinue sealed  ;  but  if  his  opinion  was  otherwise,  the  injunction  of  secrec}' 
would  be  removed,  and  the  transaction  avoided,  leaving  the  party  to 
such  remedy  as  he  might  enforce  against  the  agent. 

From  this  reasoning  we  deduce  the  general  principle  that  where 
private  instructions  are  given  to  a  special  agent  respecting  the  mode 
and  manner  of  executing  his  agenc}',  intended  to  be  kept  secret,  and 
not  communicated  to  those  with  whom  he  may  deal,  such  instructions 
are  not  to  be  regarded  as  limitations  upon  his  authority- ;  and  notwith- 
standing he  disregards  them,  his  act,  if  otherwise  within  the  scope  of 
his  agenc}',  will  be  valid,  and  bind  his  employer. 

It  is  unnecessary  to  multiply  instances  in  which  the  principle  is 
applicable.  It  may  be  added,  that  instructions  which  are  not  to  be 
communicated  to  the  other  party  are,  justly,  no  more  to  be  regarded 
as  limitations  upon  the  authority  of  the  agent,  than  instructions  not  to 
sell  unless  the  agent  can  obtain  a  good  price,  or  not  to  purchase  with- 
out he  can  obtain  the  propert}'  cheap  ;  or,  as  stated  by  some  of  the 


298  HATCH    V.    TAYLOR.  [CHAP.  II. 

evidence  in  this  case,  not  to  exchange  "unless  he  could  get  a  good 
five  year  old  horse,  and  boot  enough  ;  "  in  which  cases  the  instruction 
is  not  a  limitation  upon  the  authority,  and  the  transaction  to  be  held 
void  unless  the  principal,  or  a  jury,  should  consider  that  the  agent  had 
complied  with  the  direction.  The  principal  in  such  cases  trusts  the 
agent,  who  has  a  discretion  in  the  matter,  (Hicks  v.  Hankin,  4  P2sp.  R. 
114,)  and  it  would  be  most  mischievous  to  hold  such  direction  as  a 
condition,  upon  a  compliance  with  which  depended  the  vaUdity  of 
the  act. 

It  ma}^  be  otherwise  if  the  principal  directs  his  agent  to  offer  his 
horse  for  sale  at  the  sum  of  $100,  and  to  take  no  less  ;  or  to  purchase 
ten  bales  of  cotton,  if  to  be  had  at  a  certain  sum,  and  to  give  no  more ; 
for  in  those  cases  the  whole  matter  would  be  open  to  the  knowledge  of 
an}-  one  proposing  to  purchase,  or  sell,  and  the  direction  may  stand  as 
part  and  parcel  of,  and  a  limitation  upon,  the  authority  itself. 

The  view  we  have  thus  taken  is  strongly  supported  by  the  doctrine 
in  relation  to  agencies,  where  there  is  a  written  authority.  Mr.  Justice 
Stor}-,  in  another  part  of  his  work,  speaking  of  agencies  of  that  descrip- 
tion, says :  "  We  are,  however,  carefully  to  distinguish,  in  all  such 
cases,  between  the  authoritj'  given  to  the  agent,  and  the  private  in- 
structions given  to  him  as  to  his  mode  of  executing  that  authority. 
For,  although  where  a  written  authorit}'  is  known  to  exist,  or  is,  by 
the  very  nature  of  the  transaction,  presupposed,  it  is  the  dut}'  of  per- 
sons dealing  with  the  agent  to  make  inquiries  as  to  the  nature  and 
extent  of  such  authorit}',  and  to  examine  it ;  3'et  no  such  duty  exists 
to  make  inquiries  as  to  any  private  letter  of  instructions  from  the 
principal  to  the  agent ;  for  such  instructions  may  well  be  presumed 
to  be  of  a  secret  and  confidential  nature,  and  not  intended  to  be 
divulged  to  third  persons.  Indeed,  it  maj-  perhaps  be  doubted  if 
upon  this  subject  there  is  any  solid  distinction  between  the  case  of  a 
special  authority  to  do  a  particular  act,  and  a  general  authority  to  do 
all  acts  in  a  particular  business.  Each  includes  the  usual  and  appro- 
priate means  to  accomplish  the  end.  In  each  case  the  party  ought 
equally  to  be  bound  by  the  acts  of  his  agent,  executing  such  authority 
by  any  of  those  means,  although  he  may  have  given  to  the  agent  sepa- 
rate, private,  and  secret  instructions  of  a  more  limited  nature."  Story 
on  Agency,  70.  But  he  adds,  in  a  note,  "  The  case  intended  to  be  put 
in  the  text  is  that  of  an  authority  distinct,  and  not  derived  from,  the 
instructions  ;  for,  if  the  original  authoritj'  is  restricted  and  qualified, 
the  restrictions  and  qualifications  constitute  a  part  of  the  power  itself, 
and  govern  its  extent." 

It  is  undoubtedly  true  that  "if  the  original  authority  is  restricted 
and  qualified,  the  restrictions  and  qualifications  constitute  a  part  of  the 
power  itself,  and  govern  its  extent."  But  the  question  is,  when  is  it 
so  restricted  and  qualified ;  and  it  is  not  eas}-  to  distinguish  the  differ- 
ence in  principle  between  a  written  authority-,  with  a  private  letter  of 
instructions  of  a  secret  and  confidential  nature,  and  not  intended  to  be 


SECT,  in.]  HATCH    V.    TAYLOR.  299 

divulged,  and  a  verbal  authority,  with  verbal  instructions  of  a  secret 
and  confidential  nature,  whicli  also  are  not  intended  to  be  divulged. 

There  is  another  view  of  the  case,  which  perhaps  ought  not  to  be 
oniitted,  leading  to  the  result  at  which  we  have  already  arrived.  In  the 
case  of  general  agents,  the  principal  will  be  bound  by  the  acts  of  his 
agent,  within  the  scope  of  the  general  authority  conferred  upon  him, 
although  he  violates  by  these  acts  his  private  instructions  and  direc- 
tions. He  is  acting  within  the  scope  of  his  authority,  or  apparent 
authority.  So  a  special  agent  who  has  private  instructions  for  his 
government,  but  which  are  not  to  be  communicated  to  those  dealing 
with  him,  is  acting  within  the  scope  of  his  authoritv,  or  apparent 
authority,  when  he  is  acting  within  the  scope  of  what  he  is  to  commu- 
nicate, and  what  only  the  party  dealing  with  him  is  authorized  to 
know,  or  is  to  know  if  he  inquires. 

In  fact,  there  seems  to  be,  in  such  case,  a  holding  out  of  the  agent, 
or  an  authorization  to  him  to  hold  himself  out,  as  having  an  authorit}' 
beyond  the  private  instructions  intended  to  limit  his  action  upon  the 
subject  matter ;  and  upon  that  principle  the  employer  should  be  bound. 
"  The  principle  which  pervades  all  cases  of  agenc}-,  whether  it  be  a 
general  or  special  agenc}-,  is  this  :  The  principal  is  bound  by  all  acts  of 
his  agent  within  the  scope  of  the  authority  which  he  holds  him  out  to 
the  world  to  possess  ;  although  he  may  have  given  him  more  limited 
private  instructions  unknown  to  the  persons  dealing  with  him."  Story, 
118,  note.  "  For  I  am  bound  b}-  the  contracts  which  m}-  agent  makes 
in  my  name,  if  the}-  do  not  exceed  the  power  with  which  he  was 
ostensibly  invested  ;  and  it  will  not  avail  me  to  show  that  I  have  given 
him  secret  instructions  to  the  contrarv,  which  he  has  not  pursued." 
1  Livermore  on  Agency-,  107.  When  the  principal  sends  his  agent 
into  the  market  with  directions  to  sell  for  him  ten  bales  of  cotton,  or  a 
horse,  and  says  to  him  that  he  ma}'  sell  for  a  certain  sum,  if  he  cannot 
obtain  more,  but  not  to  sell  for  less  than  that,  and  to  get  as  much  more 
as  he  can,  he  has  not  onl}'  enabled,  but  directed,  the  agent  to  hold  him- 
self out  as  having  authorit}'  to  sell.  That  matter  is  to  be  communicated 
to  an}'  one  to  whom  he  proposes  to  make  a  sale  ;  and  he  is  acting  within 
the  scope  of  the  authority,  which  he  is  thus  held  out  as  possessing, 
when  he  makes  the  sale,  notwithstanding  he  may  disregard  the  secret 
limit  upon  the  price  which  he  was  directed  to  require. 

It  is  believed  there  is  little  in  the  cases  conflicting  with  the  views 
DOW  expressed.  In  some  of  them  there  is  a  mere  statement  of  the 
general  principle,  that  if  a  special  agent  exceed  his  authority,  his  act  is 
void.  In  others,  the  instruction  was  not  private,  or  there  was  a  clear 
excess  of  authority.  2  Kent's  Com.  484,  Lect.  41  ;  Jeflfrey  v.  Bigelow, 
13  Wend.  R.  520  ;  Rossiter  v.  Rossiter,  8  Wend.  R.  494  ;  Munn  v.  The 
Commission  Co.,  15  Johns.  R.  .')4  :  Andrews  v.  Kneeland,  6  Cowen's  R. 
357  ;  1  Peters"  S.  C.  R.  264  ;  9  Pick.  R.  542  ;  Denning  f.  Smith,  3  Johns. 
Ch.  R.  344  ;  Fenn  v.  Harrison,  3  D.  &  E.  760  ;  East  India  Co.  v.  Hens- 
ley,  1  Esp.  R.  112  ;  Runquist  v.  Ditchell,  3  Esp.  R.  65  ;  Batty  v.  Car* 


300  HATCH  V.   TAYLOR.  [CHAP.  II. 

well,  2  Johns.  R.  48  ;  Gibson  v.  Colt,  7  Johns.  R.  390  ;  Beals  v.  Allen, 
18  Johns.  R.  3G3  ;  Thompson  v.  Stewart,  3  Conn.  R.  183.  Sed  vide 
11  Wend.  R.  90;  15  East,  467. 

In  the  present  case,  there  was  some  contradiction  in  the  evidence, 
whether  any  authority  was  given  to  Clark  ;  or  if  any  was  given,  what 
it  was.  It  became  necessary,  of  course,  to  submit  a  question  upon  that 
to  the  jury.  And  from  the  uncertainty  respecting  what  was  said  by 
the  defendant,  and  how  it  was  said,  it  was  also  left  to  the  jury  to  lind, 
in  case  an  authority  was  given,  how  far  it  extended,  and  whether  what 
was  said  about  not  parting  with  one  horse  unless  both  were  disposed  of, 
was  said  in  a  way  to  be  a  limitation  upon  the  authority,  or  as  mere 
instructions  and  directions.  It  does  not  seem  to  have  appeared,  dis- 
tinctly, whether  what  was  said  about  disposing  of  one  only,  if  anything 
of  that  kind  was  in  fact  said,  was  a  private  direction  to  Clark,  or  was 
in  fact  incorporated  into,  and  part  of,  the  authority  itself.  If  Clark  had 
an  authority  to  exchange,  and  the  defendant  told  him,  as  he  himself 
afterwards  stated,  "  not  to  part  the  span,"  but  ''•  if  he  could  put  them 
away,  and  get  a  good  five-year-old  horse,  and  boot  enough,  he  might," 
this  declaration,  so  far  as  it  relates  to  a  good  horse,  and  boot  enough, 
cannot  be  held  to  be  a  limitation  on  the  authority  ;  and  if  tliis  is 
regarded  as  instructions,  what  was  said  in  connection  with  it,  about 
parting  the  span,  might  well  partake  of  the  same  character.  The 
principle  now  settled,  that  whatever  is  not  to  be  communicated  to  the 
person  with  whom  the  agent  may  deal,  is  not  to  be  regarded  as  a  limi- 
tation upon  his  authority,  was  not  adverted  to.  But  no  objection  is 
taken  that  the  matter  was  not  properl3'  submitted  to  the  jur}',  on  the 
evidence  before  them,  if  there  may  be  instructions  to  a  special  agent, 
given  at  the  same  time  with  the  authority,  which  are  not  limitations 
upon  his  authority  to  execute  the  agenc}',  but  private  directions,  in- 
tended to  limit  his  action  in  the  matter,  and  a  disobedience  of  which 
may  make  him  liable  to  his  principal,  but  will  not  avoid  the  act  done. 
It  is  apparent  that  in  some  cases  the  evidence  may  be  of  such  a  charac- 
ter that  it  must  be  submitted  to  a  jury  to  determine,  in  effect,  how  far 
the  authority,  so  called,  extended,  by  finding  what  in  fact  was  said  by 
the  principal,  and  what  was  intended  as  mere  private  instructions  to  the 
agent ;  and  this  seems  of  that  description.  On  the  view  we  have  taken, 
therefore,  there  is  nothing  in  the  instructions  upon  this  point  on  which 
to  set  aside  the  verdict. 

The  instructions  to  the  jury  respecting  a  ratification  were  fully  war- 
ranted by  the  evidence  reported.  That  evidence  is  quite  sufficient  to 
authorize  a  belief  that  when  the  colt  was  sold,  and  the  defendant  fur- 
nished the  money  to  make  the  payment  to  Clark,  and  when  he  was 
afterwards  exchanged  b}'  Emerson  with  Spoff'ord  for  the  mare,  and  he 
furnished  the  money  to  pay  the  difference,  Clark  and  Emerson  were 
puppets  in  his  hands,  moving  as  ho  pulled  the  wires.  Emerson  was 
poor,  and  the  mare  was  immediately  sold,  as  it  was  called,  to  the 
defendant.     Upon  this  part  of  the  case  the  jur}-  ought  to  have  found  for 


SECT.  III.]  HAWTAYNE   V.    BOURNE.  301 

the  plaintiff,  if  there  had  been  no  evidence  of  an}-  previous  authority  in 
Clarlv  to  malve  the  exchange.  1  Liverniore  on  Agenc}-,  45  ;  Codwise 
V.  Hacker,  1  Caines'  R.  520  ;  Ward  v.  Evans,  2  Salli.  442  ;  Story  on 
Agency,  247,  and  authorities  cited.  Having  been  active  in  the  sale 
of  the  colt,  the  defendant's  declaration  that  he  would  not  sanction 
the  trade  cannot  avail  him.  Cornwall  c.  Wilson,  1  Livermore,  395  ; 
1  Ves.  Sr.  oOy.  Jadgment  on  the  verdict. 


HAWTAYNE  v.   BOURNE. 
Exchequer.     1841. 

[7  M.  Sf-  W.  595.] 

Debt  for  money  lent,  and  on  an  account  stated.  Plea,  ntinqnam  in- 
debitatus. At  the  trial  before  Maule,  J.,  at  the  last  Cornwall  Assizes, 
the  following  appeared  to  be  the  facts  of  the  case  :  — 

The  defendant,  who  resides  at  Liverpool,  was  the  holder  of  100 
shares  in  a  company  established  for  the  working  of  a  mine  called  the 
Trewolvas  Mine,  in  the  parish  of  St.  Cohimb  Major,  Cornwall.  The 
mine  was  managed  by  an  agent,  appointed  by  the  directors  of  the  com- 
pany for  that  purpose.  In  March,  1839,  in  consequence  of  the  share- 
holders not  having  paid  up  the  calls  regularly,  the  concern  fell  into 
difficulties,  and  the  agent,  from  want  of  funds,  became  unable  to  pay 
the  laborers:  a  considerable  number  of  whom,  their  wages  being  in 
arrear,  applied  to  the  magistrates,  and  obtained  warrants  of  distress 
upon  the  materials  belonging  to  the  mine.  The  agent,  finding  that 
these  warrants  were  about  to  be  put  into  execution,  applied  in  the  name 
of  the  compan}-,  but  in  fact  upon  his  own  responsibility,  and  without 
the  knowledge  of  the  shareholders,  to  the  St.  Columb  Branch  of  the 
Western  District  Banking  compan}-,  for  a  loan  of  £400  for  three 
months,  which  was  advanced  accordingly,  and  placed  b}-  the  bank  to 
the  credit  of  the  corhpany,  and  out  of  it  the  arrears  of  wages  were 
discharged.  To  recover  the  balance  of  that  sum  the  present  action 
was  brought.  There  was  some  evidence  of  a  conversation  between  the 
defendant  and  the  agent,  in  which  the  former  had  asked  whether  they 
could  not  get  money  from  the  bank  to  keep  the  concern  going:  but 
this  evidence  was  not  left  to  the  jur}'.  The  learned  judge,  in  summing 
up,  stated  to  the  jur}',  that  although  under  ordinar}'  circumstances  an 
agent  could  not,  without  express  authorit}',  borrow  mone}'  in  the  name 
of  his  principal,  so  as  to  bind  him,  ^et  if  it  became  absolutely  neces- 
sary to  raise  money  in  order  to  preserve  the  property-  of  the  principal, 
the  law  would  imph'  an  authority  in  the  agent  to  do  so,  to  the  extent 
of  that  necessity  ;  ^nd  he  left  it  to  the  jury  to  sav  whether  the  pressure 
on  the  concern  was  such  as  to  render  the  advance  of  this  monc}-  a  case 
of  such  necessity.     The  jury  found  for  the  plaintiff. 


302  HAWTAYNE   V.    BOURNE.  [CHAP.  II. 

In  Michaelmas  Terra,  Erie  obtained  a  rule  nisi  for  a  new  trial,  on 
the  ground  of  misdirection. 

Bompas,  Sergt.,  and  Cockburn.,  now  showed  cause. 
Crowder  (with  whom  was  Erie),  in  support  of  the  rule,  was  stopped 
by  the  court. 

Parke,  B.     This  is  an  action  brought  by  the   plaintiffs,   who  are 
bankers,  to  recover  from  the  defendant,  as  one  of  the  proprietors  of 
the  Trewolvas  Mine,  a  mine  carried  on  in  the  ordinary  way,  the  balance 
of  a  sum  of  £400,  advanced  by  them  to  the  agent  appointed  by  the 
company  of  proprietors  for  the   management  of  the  mine.     Now  the 
extent  of  the  authority  conferred  upon  the  agent  by  his  appointment 
was  this  only,  —  that  he  should  conduct  and  carry  on  the  affairs  of  the 
mine  in  the  usual  manner ;  there  is  no  proof  of  express  authority  to 
borrow  money  from  bankers  for  that  purpose,  or  that  it  was  necessary 
in  the  ordinary  course  of  the  undertaking  ;  and  certainly  no  such  au- 
thority could  be  assumed.     There  are  two  grounds  on  which  it  is  said 
the  defendant  may  be  made  responsible  :   first,  on  that  of  a  special  au- 
thority given  to  the  agent  to  borrow  money  ;   and  secondly,  on  the 
assumed  principle,  that  every  owner  who  appoints  an  agent   for  the 
management  of  his  property  must  be  taken  to  have  given  him  authority 
to  borrow  money  in  cases  of  absolute  necessity.     Tiiere  certainly  was, 
in  the  present  case,   some  evidence  from   which  a  jury   might   have 
inferred  that  a  power  to  borrow  money,  for  the  purposes  of  the  mine, 
had  been  expressly  given  to  the  agent ;  but  that  evidence  does  not  ap- 
pear to  have  been  left  to  the  jury,  and  therefore  the  verdict  cannot  be 
supported  on  the  first  ground.     Then  as  to  the  second  ground,  it  ap- 
pears that   the  learned  judge  told  the  jury  that  they  might  infer  an 
authority'  in  the  agent,  not  only  to  conduct  the  general  business  of  the 
mine,  but  also,  in  cases  of  necessity,  to  raise  money  for  that  purpose. 
I  am  not  aware  that  an}'  authoritj-  is  to  be  found  in  our  law  to  support 
this  proposition.     No  such  power  exists,  except  in  the  cases  alluded  to 
in  the  argument,  of  the  master  of  a  ship,  and  of  the  acceptor  of  a  bill 
of  exchange  for  the  honor  of  the  drawer.     The  latter  derives  its  ex- 
istence from  the  law  of  merchants  ;  and  in  the  former  case  the  law, 
which  generally'  provides  for  ordinar}-  events,  and  not  for  cases  which 
are  of  rare  occurrence,  considers  how  likely  and  frequent  are  accidents 
at  sea,  when  it  may  be  necessary,  in  order  to  have  the  vessel  repaired, 
or  to  provide  the  means  of  continuing  the  voyage,  to  pledge  the  credit 
of  her  owners  ;  and  therefore  it  is  that  the  law  invests  the  master  with 
power  to  raise  money,    and,   b}'  an   instrument  of  hypothecation,   to 
pledge  the  ship  itself  if  necessary.     If  that  case  be  analogous  to  this, 
it  follows  that  the  agent  had  power  not  only  to  borrow  money,  but,  in 
the  event  of  securit}"  being  required,  to  mortgage  the  mine  itself.     The 
authority  of  the  master  of  a  sliip  rests  upon  the  peculiar  cliaracter  of 
his  office,  and  affords  no  analogy  to  the  case  of  an  tordinary  agent.     I 
am  therefore  of  opinion  that  the  agent  of  this  mine  had  not  the  au- 
thority contended  for.     Whether  he  had  or  had  not,  was  a  question  for 


SECT.  III.]  NORTH    RIVER    BANK    V.    AYMAR.  303 

the  juiy ;  but,  on  the  general  principles  of  law,  it  seems  to  me  that  the 
ruling  of  the  learned  judge  cannot  be  supported,  and  therefore  that  the 
rule  for  a  new  trial  must  be  made  absolute. 

Alderson,  B.  I  am  of  the  same  opinion.  There  is  no  rule  of  law 
that  an  agent  ma}',  in  a  case  of  emergency  suddenly  arising,  raise 
money,  and  pledge  the  credit  of  his  principals  for  its  repayment;  and 
even  if  it  were  so,  in  this  instance  tliere  was  ample  time  and  opportu- 
nity for  him  to  have  applied  to  his  principals.  Several  cases  have  been 
cited  as  analogous  to  the  present,  but  they  have  been  alread}'  satisfac- 
torily distinguished  by  mj-  brother  Parke.  Lamb  v.  Bunce,  4  M.  &  S. 
275,  ma}'  appear  to  be  a  case  similar  to  the  present,  but  it  is  very  dis- 
tinguishable, for  there  is  an  original  liability  in  parish  officers  to  support 
the  poor  in  their  parish  ;  and  it  appears,  moreover,  that  the  parish 
officers  in  that  case  were  aware  of  the  surgeon  being  in  attendance  on 
the  pauper,  and  made  no  objection.  Those  were  circumstances  from 
which  a  jur}'  might  well  infer  a  contract  on  their  part  to  paj'  his  bill. 
In  the  present  case  there  was  no  such  evidence. 

RoLFE,  B.,  concurred.  Rule  absolute.^ 


NORTH   RIVER  BANK  v.   AYMAR. 

Supreme  Court  of  New  York.     1842. 

[3  Hill,  262.] 

Error  to  the  Superior  Court  of  the  city  of  New  York.  The  action 
in  the  court  below  was  b}'  the  North  River  Bank  against  Aymar  and 
Embur}',  executors,  &c.,  of  Pexcel  Fowler  deceased,  on  eleven  promis- 
sory notes  ;  six  of  which  purported  to  have  been  made  on  behalf  of  the 
defendants'  testator,  and  were  signed  thus:  "  Pexcel  Fowler  —  Jacob 
D.  Fowler,  att'y."  Of  these  six  notes,  four  were  payable  to  the  order 
of  David  Rogers  &  Son,  and  by  them  indorsed  ;  and  the  other  two 
were  payable  to  the  order  of  Jacob  D.  Fowler,  and  were  indorsed  by 
him,  and  by  D.  Rogers  &  Son.  The  remaining  five  notes  purported  to 
have  been  made  by  Jacob  D.  Fowler,  payable  to  the  order  of  Pexcel 
Fowler,  and  were  indorsed  in  the  same  form  in  which  the  other  six 
notes  were  signed  —  viz. :  "  Pexcel  Fowler  —  Jacob  D.  Fowler,  att'y" 
—  and  were  also  indorsed  by  D.  Rogers  &  Son.  The  case,  as  it 
further  appeared  on  the  trial,  was  this  :  The  defendants'  testator,  in 
his  lifetime,  executed  to  Jacob  D.  Fowler  a  letter  of  attorney  in  these 
words:  "Know  all  men,  &c.,  that  I,  Pexcel  Fowler,  of,  &c.,  have 
made,  &c.,  Jacob  D.  Fowler,  of,  «&c.,  my  true  and  lawful  attorney,  for 

1  As  to  the  authority  of  the  master  of  a  ship  to  pledge  the  owner's  credit,  see 
Arthur  v.  Barton,  6  M.  &  W.  138  (1840)  ;   Beldon  v.  Campbell,  6  Ex.  886  (1851). 

As  to  emergencies,  compare  Toledo,  St.  L.,  &  K.  C  Railroad  Co.  v.  Mylott,  6  Ind 
App.  438  (1893).  — Ed. 


304  NORTH    EIVEU    BANK    V.    AYMAR.  [CHAl'.  II. 

me  and  in  my  name,  place,  and  stead,  and  to  my  use,  to  ask,  demnnd, 
&c.,  all  such  sum  and  sums  of  money,  debts,  &c.,  which  are  or  shall  be 
due,  owing,  &c.,  to  me,  &c.  I  do  further  authorize  and  empower  the 
said  Jacob  D.  Fowler  to  draw  all  checks  or  drafts  upon  any  of  the 
banks  in  the  city  of  New  York  for  all  moneys  deposited  in  my  name, 
to  indorse  any  promissory  note  or  notes,  bills  of  exchange  or  drafts,  to 
accept  all  bills  of  exchange  or  drafts,  or  in  my  name  to  draw  any  note 
or  notes,  to  enter  merchandise  at  the  custom  house,  &c.,  and  to  manage 
and  negotiate  any  business  from  time  to  time  in  the  same  manner  as  if 
I  was  personally  present.  Giving  and  granting  unto  m}'  said  attorney 
full  power  and  authority  in  and  about  the  premises,  &c.  In  witness," 
&c.  About  the  time  this  power  was  executed,  Pexcel  Fowler  and 
Jacob  D.  Fowler  called  together  at  the  banking-house  of  the  plaintiffs 
and  left  it  in  their  possession,  where  it  had  ever  since  remained.  The 
notes  in  question  were  all  made  during  the  life  of  the  defendants'  testa- 
tor, and  after  the  execution  of  the  power.  Nine  of  them  were  not 
made  or  indorsed  in  the  business  of  the  defendants'  testator,  nor  for 
his  use  or  benefit,  but  for  the  accommodation  of  David  Rogers  &  Son, 
under  an  agreement  between  them  and  the  firm  of  Fowler,  Gordon,  & 
Co.  (of  which  Jacob  D.  Fowler  was  a  member)  for  the  mutual  exchange 
of  accommodation  paper.  Fowler,  Gordon,  &  Co.  failed  in  business, 
leaving  unpaid  a  large  number  of  notes  made  and  indorsed  under  this 
agreement,  on  which  D.  Rogers  &  Son  were  liable,  and  which  had 
been  discounted  b}'  the  plaintiffs.  The  notes  in  question  were  procured 
by  D.  Rogers  &  Son  for  the  purpose  of  relieving  themselves  from  such 
liability,  and  were  passed  b}-  them  to  the  plaintiffs  in  exchange  for  the 
said  notes  of  Fowler,  Gordon,  &  Co.  At  the  time  the  notes  in  question 
were  received  by  the  plaintiffs,  Samuel  D.  Rogers,  a  member  of  the 
firm  of  D.  Rogers  &  Son,  and  who  was  also  one  of  the  directors  of  the 
bank,  declared  the  notes  to  be  business  paper,  given  for  goods  sold. 
The  defendants  admitted  that  the  plaintiffs  were  entitled  to  recover  on 
two  of  the  eleven  notes  ;  and,  in  respect  to  the  others,  the  court  charged 
the  jury  that  Jacob  D.  Fowler  exceeded  his  authority,  —  that  the  power 
being  special,  the  plaintiffs  were  aflTected  b}'  the  excess,  and  were  not 
therefore  entitled  to  recover.  The  plaintiffs  excepted.  The  jury  ren- 
dered a  verdict  for  the  amount  of  the  two  notes  in  favor  of  the  plain- 
tiffs, who,  after  judgment,  sued  out  a  writ  of  error.  Some  other  facts 
necessar}-  to  a  more  full  understanding  of  the  case  will  be  found  stated 
in  the  following  opinions. 

S.   G.  Raymond^  for  the  plaintiffs  in  error. 

J.  W.  Gerard,  for  the  defendants  in  error. 

CowEN,  J.  As  the  notes  in  question  were  received  b}'  the  plaintiffs 
in  exchange  for  the  notes  of  Fowler,  Gordon,  &  Co.,  the  former  are 
entitled,  so  far  as  their  rights  are  in  question  on  this  writ  of  error,  to 
be  considered  bona  fide  holders  in  the  fair  course  of  trade  and  for  a 
valuable  consideration. 

That  the  power  conferred  by  the  letter  of  attorney  was  limited  to 


SECT.  III.]  NORTH   KIVEK   BANK    V.    AYMAK.  305 

notes  in  the  proper  business  of  the  testator,  and  that  it  would  have 
been  so  independently  of  the  words  to  his  use,  there  can  be  no  doubt. 
Stainer  v.  Tysen,  3  Hill,  279  ;  Nichol  v.  Green,  Peck's  Eep.  283  ; 
Butclier  v.  Tysen,  U.  S.  Circ.  Court,  Nov.  1840,  4  Hunt's  Merch.  Mag. 
456.  To  fulfil  this  purpose  of  the  power,  it  was  essential  that  the 
making  and  indorsing  should  be  upon  a  consideration  passing  to 
Pexcel  Fowler,  the  testator.  There  is  nothing  in  the  nature  or  effect 
of  such  a  power  which  authorizes  the  attorney'  to  use  it  for  his  own 
benefit  or  the  benefit  of  any  one  excepting  the  principal.  And  if  this 
limitation  be  such  that  an  appointee  would  be  bound  to  notice  the  fact 
that  the  attorney  overstepped  it,  then  these  plaintiffs  were  properly  cut 
off  by  the  court  below  from  their  claim  upon  the  contested  notes  and 
indorsements. 

The  general  rule,  that  when  an  attorney  does  an}'  act  beyond  the 
scope  of  his  power,  it  is  void  even  as  between  the  appointee  and  the 
principal,  has  always  prevailed,  and  is  indeed  elementary  in  the  doc- 
trine of  powers.  The  ground  on  which  the  rule  rests  is  familiar.  The 
appointee  need  not  deal  with  the  attorney  unless  he  choose ;  and  it  is 
very  reasonable  that  he  should  be  bound  to  inspect  the  power,  when  in 
writing,  or  to  learn  its  language  in  the  best  wa}-  he  can,  when  it  is  by 
parol.  On  becoming  acquainted  with  it,  he  shall  be  holden  to  under- 
stand its  legal  effect,  and  must  see,  at  his  peril,  that  the  attorne}"  does 
not  transgress  the  prescribed  boundary-  in  acting  under  it.  I  sa}'  in 
acting  under  it ;  for  it  is  eas}-  to  compare  the  act  with  the  words  to 
which  it  must  conform  ;  and  so  far,  there  is  nothing  unreasonable,  — 
nothing  impossible  or  even  difficult.  In  speaking  of  the  attorney's  acts, 
I  certainl}'  mean  to  include  his  declarations  made  at  the  time,  or  in  the 
business  which  he  transacts  under  the  power ;  for  his  declarations  are 
a  part  of  the  res  gestoe,  and  bind  his  principal  equall}'  with  the  act  to 
which  the}'  relate.  They  are  always  received  as  evidence  against  the 
principal.  I  authoi'ize  a  man  to  borrow  a  sum  of  mone}'  for  me.  The 
power  being  limited,  he  has  no  authorit}'  to  borrow  for  himself  or  his 
neighbor.  He  goes  to  the  lender  and  borrows  in  my  name,  showing 
him  my  written  power,  and  declaring  at  the  same  time  that  he  takes 
the  loan  on  my  account.  Both  his  acts  and  declarations  are  evidence 
against  me. 

A  question  often  arises  upon  this  and  the  like  cases,  how  far  the 
appointee  is  responsible  for  the  agent's  fidelity.  Take  it,  in  the  in- 
stance supposed,  that  his  acts  and  professions  make  out  a  case  within 
the  terms  of  his  authority  ;  is  the  man  who  advances  his  money  account- 
able for  the  truth  or  the  good  faith  of  a  transaction  which,  so  far  as  he 
can  see  and  has  reason  to  believe  at  the  time,  is  in  honest  conformity 
with  such  authority?  Take  it  that  the  attorne}' comes  with  a  falsehood, 
meaning  the  loan  for  his  own  use,  or  the  use  of  another  whom  he 
desires  to  accommodate  ;  must  the  appointee  lose  his  money?  He  brings 
his  action  against  the  principal,  and  proves  the  letter  of  attornej'  and 
the  loan  as  stated  ;  is  it  necessar}'  to  do  more  ?  or  can  the  principal 

20 


306  NORTH    RIVER   BANK   V.   AYMAR.  [CHAP.  II. 

turn  round  upon  him  and  show  that  his  attornej'  was  false  to  his  in- 
terest, and  so  infer  that  the  man  who  trusted  to  his  letter  and  made  a 
loan  apparently  according  to  its  purview,  must  himself  be  visited  with 
the  consequences  of  the  fraud?  I  confess  that,  until  I  heard  the  argu- 
ment in  this  cause,  I  had  supposed  the  mere  statement  of  such  a  case 
furnished  its  own  answer ;  and  that  to  allow  such  a  defence  would  be 
pushing  the  duty  of  inquiry  on  the  part  of  the  appointee  far  beyond 
the  principle  on  which  it  is  founded,  —  indeed  to  an  extent  absolutely 
impracticable. 

The  case  I  have  instanced  is,  in  principle,  the  one  now  before  us. 
The  plaintiffs  were  apprised  that  Jacob  D.  Fowler  had  power  to  make 
and  indorse  notes  in  the  business  of  the  testator ;  and  notes  actually 
made  and  indorsed  bj'  the  attorne}',  and  purporting  to  have  been  so 
made  and  indorsed  in  conformity  with  the  power,  were  presented  to 
and,  in  effect,  discounted  by  the  plaintiffs.  This  act  was  equivalent  to 
an  express  declaration  that  the  notes  were  made  and  indorsed  in  the 
business  of  the  testator.  A  man  gives  a  power  to  sell  land,  and  the 
attorne}'  executes  a  deed  in  the  name  of  the  principal.  The  transac- 
tion imports  the  same  thing  as  a  recital  or  express  declaration  referring 
to  the  power ;  and  the  principal  is  equally  estopped  to  deny  that  the 
authority  has  been  pursued. 

There  are  a  few  general  principles  entirely  settled  and  universally 
acted  upon,  especiall}'  in  dealing  with  negotiable  paper,  which  it  may 
be  well  to  remember.  One  was  laid  down  in  Hern  v.  Nichols,  1  Salk. 
289.  The  defendant's  factor,  being  authorized  to  sell  silk,  defrauded 
the  vendee;  and  Holt,  C.  J.,  held,  that  the  principal  was  liable 
for  the  deceit ;  "  for,"  said  he,  "  seeing  somebody  must  be  a  loser  bj' 
this  deceit,  it  is  more  reason  that  he  that  employs  and  puts  a  trust  and 
confidence  in  the  deceiver,  should  be  a  loser  than  a  stranger."  See 
also  Bowles  v.  Stewart,  1  Sch.  &  Lef.  222  ;  The  Monte  Allegre,  9 
Wheat.  644.  An  application  of  this  principle  to  men  who  had  author- 
ized an  agent  to  indorse  for  them,  was  made  in  Putnam  v.  Sullivan, 
4  Mass  Rep.  45  ;  a  case  coming  very  near  if  not  quite  up  to  the  one 
before  us.  The  defendants,  who  were  merchants,  having  occasion  to 
be  absent,  left  their  names  with  a  clerk  on  blank  paper,  to  be  filled  up 
by  him  and  advanced  on  the  sale  of  goods  by  the  house  upon  commis- 
sion, or  to  renew  the  notes  of  the  house  when  due  at  the  banks.  On 
some  he  was  authorized  to  bind  them  as  makers,  and  on  others  as 
indorsers.  A  man  obtained  one  of  the  latter  from  the  clerk  by  false 
pretences,  wrote  and  signed  a  note  on  the  other  side,  and  got  money 
upon  it  for  his  own  use  on  the  credit  of  the  indorsement,  the  lenders 
having  no  notice  of  the  fraud.  The  defendants  were  held  liable.  The 
plaintiffs  were  informed  too  that  it  was  a  blank  indorsement  which  had 
been  left  with  the  clerk,  to  be  used  in  the  business  of  the  defendants. 
Parsons,  C.  J.,  said  :  "  Here  one  of  two  innocent  parties  must  suffer. 
The  indorsees  confided  in  the  signature  of  the  defendants  ;  and  they 
could  have  no  reason  to  suppose  that  it  had  been  improperly  obtained. 


SECT.  III.]  NORTH    RIVER    BANK   V.   AYMAR.  307 

On  the  other  hand,  the  loss  has  been  occasioned  by  the  misplaced  con- 
fidence of  the  indorsers  in  a  clerk  too  young  or  inexperienced  to  guard 
against  the  arts  of  the  promisor."  Looking  at  the  fact  that  the  plain- 
tiffs knew  the  clerk  was  limited  to  use  the  note  in  the  business  of  his 
principals,  the  power  was  the  same  in  respect  to  them,  as  that  of  Jacob 
D.  Fowler  here  in  respect  to  the  bank.  They  found,  as  the  bank  did, 
that  the  agent  had  delivered  out  the  note  to  the  promisor,  but  not  that 
he  had  exceeded  his  power,  though  he  had  done  so  in  fact.  Why  not 
require  them  to  stop  and  ascertain  whether  it  had  been  delivered  out 
upon  a  consideration  passing  to  the  defendants?  The  answer  is,  that 
they  had  put  their  agent  in  a  condition  which  enabled  him  to  impose 
upon  strangers  by  apparently  pursuing  his  authorit}-.  The}-  had  given 
him  a  discretion  to  speak  for  them,  both  bj-  words  and  actions.  The 
neglect  or  falsehood  of  their  agent,  therefore,  was  legall}-  imputable  to 
them.  The  paper  being  issued  without  consideration,  whether  by  their 
agent  or  themselves,  was  indeed  void  as  between  the  original  parties  ; 
but  there  being  in  each  case  a  power  to  issue  paper  valid  in  form,  it 
could  not  be  impeached  in  the  hands  of  a  bojui  Jide  holder.  Ever}'- 
bod}'  knows  that  a  partner  who  issues  a  note  of  the  firm  for  his  own 
benefit,  exceeds  his  power ;  but  the  firm  cannot  avail  themselves  of 
the  objection  as  against  a  bona  Jide  holder.  Another  case  is  that  of 
Prescott  V.  Flynn  (reported  in  Chitty  on  Bills,  35,  note,  Am.  ed. 
of  1839).  In  that  case  it  was  proved  by  circumstances  that  the  clerk 
of  the  defendants  was  authorized  to  indorse  for  them  in  their  business. 
Availing  himself  of  that  authority,  he  indorsed  their  names  on  two  bills 
of  exchange  which  he  procured  to  be  discounted  for  his  own  benefit, 
and  absconded  with  the  money.  It  was  hardly  pretended  that  the 
plaintiff  was  bound,  though  he  knew  of  the  limitation,  to  inquire 
whether  in  truth  the  money  was  intended  for  the  principals.  Indeed, 
when  the  case  came  to  be  reported  in  9  Bing.  19,  the  reporter  thought 
the  fraud  to  be  so  entirely  immaterial  that  he  did  not  even  mention  it. 
According  to  both  reports,  the  court  took  it  for  granted  that  the  agent 
acting  for  himself,  instead  of  his  principals,  could  make  no  difference 
as  between  them  and  the  plaintiff.  It  was  enough  that  he  had  power 
to  act  in  the  defendants'  business,  and  did  apparently  so  act.  In 
Newland  v.  Oakley,  6  Yerg.  489.  an  attorney  having  power  to  assign 
notes  for  his  principal,  did  so  ;  but  embezzled  the  mone^-  which  he  got. 
That  he  tlius  assigned  for  his  own  benefit,  was  held  not  to  affect  the 
right  of  a  person  to  whom  one  of  the  notes  came  in  the  course  of 
trade. 

These  cases  respecting  the  limited  powers  of  agents  to  make  indorse- 
ments, accord  with  the  proposition  concerning  powers  in  general  as  it 
was  submitted  to  us  by  the  counsel  for  the  plaintiff  in  error,  viz.  : 
"  Whenever  the  very  act  of  the  agent  is  authorized  by  the  terms  of  the 
power,  that  is,  whenever  by  comparing  the  act  done  bj-  the  agent  with 
the  words  of  the  power,  the  act  is  in  itself  warranted  bj-  the  terms 
used,  such  act  is  binding  on  the  constituent  as  to  all  persons  dealinf  in 


308  NORTH    RIVER    BANK    V.    AYMAR.  [CHAP.  II. 

good  faith  with  the  agent.  Such  persons  are  not  bound  to  inquire  into 
facts  aliunde.  'Die  apparent  authority  is  the  real  authority."  Such  a 
rule  was  substantial!}-  laid  down  by  Lord  EUenborough,  C.  J.,  in 
Pickering  r.  Busk,  15  East,  38,  43.  He  says:  "I  cannot  subscribe 
to  the  doctrine  that  a  broker's  engagements  are  necessarily  and  in  all 
eases  limited  to  his  actual  authority,  the  reality  of  which  is  afterwards 
to  be  tried  by  the  fact.  It  is  clear  tiiat  he  may  bind  his  principal 
within  the  limits  of  tlie  autliority  with  which  he  has  been  apparently 
clothed  b}'  the  principal  in  respect  to  the  subject  matter ;  and  there 
would  be  no  safety  in  mercantile  transactions,  if  he  could  not."  An- 
drews V.  Kneeland,  6  Cowen,  354,  357,  358,  and  the  books  there  cited; 
Rossiter  v.  Rossiter,  8  Wend.  498,  499,  and  the  cases  there  cited. 

How  were  the  plaintiffs  in  the  case  before  us  to  ascertain  whether 
Jacob  D.  Fowler  had  acted  in  good  faith  towards  his  principal?  On 
their  agent  asking  one  of  the  payees,  Samuel  D.  Rogers,  of  the  firm  of 
David  Rogers  &  Son,  he  answers  tliat  the  notes  were  business  paper, 
given  for  goods  sold  ;  and  this  is  another  circumstance  tending  to  per- 
fect the  parallel  with  Putnam  v.  Sullivan. 

The  onl}-  adjudged  case  cited  on  the  argument  for  the  defendants  in 
error,  giving  color  to  tlie  idea  that  the  appointee  must  look  behind  the 
power,  is  Attwood  v.  Munnings,  1  Mann.  «fe  Ryl.  66;  7  Barn.  &  Cress. 
42,  s.  c.  The  power  in  that  case  was  extremely  limited,  being  tied 
up  to  the  acceptance  of  bills  particularly  described.  The  words  were : 
"  For  me,  and  on  my  behalf,  to  pay  and  accept  such  bill  or  bills,  &c., 
as  shall  be  drawn,  &c.,  on  me  b\'  m}'  agents  or  correspondents,  as  occa- 
sion sliall  require."  The  bill  there  in  question  was  drawn  by  Burleigh, 
a  partner  of  the  defendant,  for  the  benefit  of  the  joint  concern  ;  and,  as 
the  court  held,  he  was  neither  a  correspondent  nor  agent  within  the 
meaning  of  the  power.  There  was  indeed  no  need  of  giving  effect  to 
the  bill  b}'  an  acceptance  under  the  power ;  for  Burleigh  was  authorized 
to  bind  the  defendant  as  his  partner.  The  court  held  that,  as  the 
power  described  the  persons  whose  names  must  appear  upon  the  bill, 
the  authority  was  overstepped  if  the  names  were  not  there.  In  other 
words,  a  power  to  accept  a  bill  drawn  by  an  agent,  did  not  extend  to  a 
bill  drawn  b}'  one  who  was  not  an  agent.  Here  the  power  contains  no 
such  limitation.  The  case  cited  accords  with  one  of  the  most  familiar 
rules  for  the  construction  of  powers  ;  but  it  does  not  appl}'.  If  the 
principal  will  describe  the  particular  condition  on  which  a  bill  shall  be 
accepted,  however  idle,  even  to  the  writing  of  it  with  a  steel  pen.  it 
must  be  fulfilled.  Tliere  it  was  to  be  drawn  by  a  correspondent  or 
agent;  and  not  being  so  drawn,  but  by  one  who  was  a  principal,  the 
condition  failed.  The  appointee  was  admonished  to  see  at  his  peril 
that  all  the  prescribed  requisites  were  combined.  The  principal  would 
not  trust  the  attorney,  even  to  judge  of  the  parties.  There  was  another 
clause  in  the  power  which,  as  Bayley,  J.,  inclined  to  think,  also 
amounted  to  a  condition.  The  bills  were  to  be  drawn  as  occasion 
should  require.     It   was  not  necessary  to  sa}'  that  the   plaintiflT  was 


SECT.  III.]  XOKTH    KIVER   BANK    V.    AYMAK.  309 

Ibound  on  this  clause  to  see  the  occasion  did  require  ;  and  a  majority  of 
the  judges  who  spoke  to  the  question  (Ilolro\d  and  Littledalc,  JJ.) 
did  not  sa\'  so.     The  two  reporters  do  not  entirely  agree.     In  7  Barn. 
&  Cress.,  both  of  the  two  latter  judges  are  made  to  discuss  the  ques- 
tion :  in  1  Mann.  &  Ryl.,  Littledale,  J.,  is  represented  as  having  given 
a  naked  assent  to  what  Holroyd,  J.,  said  ;  but  in  neither  does  it  appear 
that  any  but  Bayley,  J.,  considered  the  actual  occasion  of  accepting  as 
a  condition.     The  report  of  his  argument  is  substantially  the  same  in 
both,  though  in  Barn.  &  Cress,  he  seems  to  have  thought  it  sufficient 
to  have  called  for  the  letter  of  advice.     Littledale,  J.,    in   Barn.    & 
Cress.,  thought  the  words  "as  occasion  shall  require"  did  not  var\-  the 
question  ;  and  that  the  power  should  be  read  without  them.     This  was 
conceding  the  ground  taken  b\'  counsel,  that  the  attorney  had  a  dis- 
cretionary power  to  judge  of  the  occasion.     1  have  looked  into  some 
authoritative  books  on  agencN'  to  find  how  this  case  has  been  considered 
b}'   learned  writers  who  had  studied  the  subject.     It  is  introduced  into 
the  late  edition  of  Paley  on  Agency  (p.   192)  bj-  a  simple  statement 
of  the  case,  with  the  opinion  of  Bayle}',  J.  ;  or  rather,  as  illustrating 
the  general  remark,   that   all  written  powers   are  to  receive  a  strict 
interpretation,  the  authorit}-  never  being  extended  beyond  that  which 
is  given  in  terms,  or  is  absolutelv  necessary  for  carrying  the  authority 
into  effect.     Judge  Stor}'  mentions  the  case  several  times  in  his  work 
on  agenc}'  (pp.  22,  65  to  67,  69),  but  evidently  considers  it  as  holding 
no  more  than   that  the  appointee  is  bound  to  see  the  proper  parties 
introduced.     He  is  evidentlj-  of  opinion,  with  Littledale,  J.,  that  the 
words  "as  occasion  shall  require"  were  no  more  than  what  the  nature 
of  such  a  power  would  imply  without  tliem,  viz.  an  authority  in   the 
agent  to  govern   himself  according  to   the   emergencies  of  business. 
The  necessity  mentioned  b\'  Mr.  Justice  Baylej'  of  calling  for  the  letter 
of  advice  was,  I  think,  virtually  denied  b}-  what  Best,  C.  J.,  and  the 
whole  court  afterwards  held  as  to  letters  of  instruction  in  Withington 
V.  Herring,  5  Bing.  492  ;  3  Moore  &  Payne,  30  S.   C.     Such  letters 
are  often  confidential  between  the  parties,  and  contain  matters  not  fit 
to  be  divulged.     He  said,  all  that  was  necessary'  for  the  plaintiffs  to 
inquire  for,  was  the  authority.     The  case  of  Atwood  v.  Munnings  was 
mentioned  b}'  Park,  J.,  and  he,  like  Judge  Story,  understood  it,  not  as 
imposing  the  duty  to  inquire  into  the  state  of  the  principal's  affairs,  but 
only  as  to  the  character  of  the  drawers.     Indeed,  there  is  hardly  any 
rule  better  settled  or  of  more  universal  application,  than  that  the  ap- 
pointee need  not  inquire  as  to  matters  in  their  own  nature  private  or 
confidential  between  the  agent  and  principal.     It  may  be  doubted,  says 
Mr.  Justice  Story,  if  upon  this  subject  there  is  any  solid   distinction 
between  a  special  authoritj'  to  do  a  particular  act,  and  a  general  author- 
ity to  do  all  acts  in  a  particular  business.     Each  includes  the  usual 
and  appropriate  means  to  accomplish  the  end.      (Story  on  Agencv,  70.) 
Is  it  among  those  means  that  the  appointee  shall  lose  his  money,  be- 
cause the  attorney  happens  to  betray   the  interests  of  his  princii^al? 


310  NOKTII    EIVEK    BANK    V.    AYMAR.  [CIIAP.  II. 

Would  not  such  a  rule  rather  ])e  a  means  to  make  the  power  utterly 
unavailable?  No  prudent  man  woukl  advance  his  money  under  such  a 
responsibilit}'.  The  rule  supposes  a  degree  of  capacity  to  look  into  the 
affairs  and  even  the  private  intentions  of  others,  which  no  human  being 
jiossesses. 

In  the  case  at  bar,  the  principal  was  much  abroad,  and  had  left  this 
letter  of  attorney  with  the  bank  for  the  very  purpose  of  obtaining  credit 
there.  It  had  been  repeatedly  and  for  a  long  time  acted  upon,  the 
testator  having  an  account  at  the  bank,  and  the  power  of  Jacob  D. 
Fowler  never  having  been  drawn  in  question.  This  very  case  admits 
tlie  validity  of  two  out  of  the  eleven  notes  in  question.  Such  circum- 
stances, even  without  the  letter  of  attorney,  should  bind  the  testator's 
estate.  In  Prescott  v.  Flynn,  the  defendants'  clerk  having  been  intro- 
duced as  confidential,  drawn  bills,  and  on  one  occasion  only  been  em- 
powered to  indorse  in  their  business,  the}-  were,  from  that  circumstance 
alone,  held  liable  on  his  subsequent  indorsement  of  their  names  for  his 
own  benefit.  Here  we  have  a  stronger  case.  Both  the  testator  and 
Jacob  D.  Fowler  came  with  the  letter  of  attorne}',  and  deposited  it 
with  tiie  plaintiffs ;  the  attorney  had  drawn  and  indorsed  through  a 
course  of  five  or  six  years  ;  the  testator,  a  shipmaster,  being  frequently 
at  home,  and  knowing  and  approving  every  act  nearlj-  up  to  the  time 
of  the  making  and  indorsing  now  in  question. 

In  Nichol  i\  Green,  Peck's  Rep.  288,  the  attorne}',  under  a  power 
like  the  present,  dealt  directly  with  the  plaintiff,  purchasing  on  his  own 
account,  as  the  plaintiff  knew  ;  and  then,  under  the  power,  made  and 
indorsed  the  note  in  question.  Haywood  and  Peck,  JJ.,  held  what  we 
have  just  now  decided  in  Stainer  v.  Tysen  (3  Hill,  279),  on  the  dis- 
tinction between  taking  the  note  with  or  without  knowledge  of  the 
fraud.  One  judge  dissented,  and  one  took  no  part  in  the  cause.  It 
does  not  appear  how  it  was  finall}'  decided.  The  case  of  Butcher  v. 
Tj'sen,  which  was  before  the  Circuit  Court  of  the  U.  S.,  in  November 
term,  1840  (4  Hunt's  Merch.  Mag.  456),  decides  the  same  point  the 
same  wa}'.  The  plaintiff  cannot  complain  that  the  defendant  clothed 
his  agent  with  the  means  of  perpetrating  a  fraud  when  none  has  been 
actually  committed.  The  difference  rests  entirel}*  upon  that  fact.  In 
the  cases  cited,  the  question  in  debate  was,  whether,  by  authorizing 
the  agent  to  issue  notes  in  the  name  of  the  principal,  without  words 
expressly  restricting  the  issue  to  his  own  business,  he  did  not  confer 
the  power  of  issuing  them  for  the  benefit  of  everybody,  even  including 
the  attorney.  That  the  power  is  to  be  thus  construed,  was  contended 
in  the  case  before  us,  and  in  Stainer  v.  T3'sen.  "We  have  arrived  at 
the  conclusion  without  much  difficult}-,  that  to  give  the  power  so  great 
an  effect,  the  principal  must  go  farther,  and  expressly  declare  his  mean- 
ing that  the  attorney-  ma}-  use  his  notes  for  the  benefit  of  others  beside 
the  principal. 

On  the  distinction  which  I  have  endeavored  to  establish  in  favor  of  a 
bo?ia  fide  holder,  I  am  of  opinion   that,  in  the  case  at  bar,  the  court 


SECT.  III.]  MUSSEY    V.    BEECHER.  311 

below  erred  when  they  charged  that  the  attorney  had  exceeded  his 
power  in  that  sense  which  avoided  these  notes  in  the  hands  of  tlie 
plaintiffs.  As  against  his  principal,  he  did  exceed  his  power;  but  the 
executors  must  look  to  him-,  not  the  plaintiffs,  for  their  indemnit}-. 

The  point  that  the  bank  had  notice  through  Samuel  D.  Rogers,  the 
director,  does  not  arise.  There  was  indeed  evidence  that  he  had 
notice  and  acted  as  director  in  respect  to  nearly  if  not  quite  all  the 
notes.  If  these  things  finalh-  turn  out  to  be  so,  of  course  the  plaintiffs 
cannot  recover  on  those  notes  in  respect  to  which  the}-  were  thus 
affected  with  notice.  Bank  of  the  United  States  v.  Davis,  2  Hill, 
451.  But  the  question  was  entireh-  excluded,  by  the  charge,  from 
the  consideration  of  the  jury  ;  and,  for  aught  we  can  see,  the  court  laid 
no  stress  upon  it.  They  put  the  case  on  the  naked  independent  ques- 
tion of  authority  ;  and,  under  the  charge  given,  the  jur}'  were  bound 
to  find  for  the  defendants,  although  they  believed  the  plaintiffs  were 
bona  Jide  holders.  I  have,  therefore,  as  in  dut}-  bound,  considered 
them  such.  No  doubt  the}'  were  so  in  fact.  If  not  so  constructivel}-, 
owing  to  one  of  their  agents  having  had  notice,  the}-  must  fail ;  but 
they  are  none  the  less  entitled  to  have  the  question  tried  and  disposed 
of  upon  that  issue. 

Some  other  minor  points  were  mentioned  on  the  argument  by  the 
counsel  for  the  defendants  in  error ;  but  the  same  answer  applies. 
They  were  not  passed  upon  in  the  court  below.  On  the  whole,  I  am 
of  opinion  that  the  judgment  should  be  reversed  ;  a  centre  de  novo  to 
go  from  the  court  below,  the  costs  to  abide  the  event. 

Bronson,  J.  concurred. 

Nelson,  C.  J.,  dissenting.*  Judgment  reversed.* 


MUSSEY   V.   BEECHER. 
Supreme  Judicial  Court  of  Massachusetts.     1849. 

[3  Cush.  511.] 

This  was  an  action  of  assumpsit  for  goods  alleged  to  have  been 
sold  and  delivered  by  the  plaintiff  to  the  defendant,  through  the 
latter's  agent,  William  Pierce. 

The  case  having  been  referred  to  an  auditor,  he  reported  in  favor 
of  the  plaintiff,  for  goods  sold  and  delivered  between  the  10th  of 
March,  1842,  and  the  25th  of  May,  1843  ;  and  for  the  balance  of  two 

1  This  dissenting  opinion,  reiving  upon  Attwood  v.  Mannings,  ante,  p.  286,  is  omitted. 
—  Ed. 

-  This  decision  was  reversed  in  the  Court  of  Errors  ;  but  there  is  no  formal  report 
of  the  reversal.  The  doctrine  of  the  Supreme  Court  was  approved  in  later  cases.  See 
Farmers  &  Mechanics'  Bank  r.  Butchers  &  Drovers'  Bank,  16  N.  Y.  125,  138-139, 
142-143,  154  (1857)  ;  Bank  of  Batavia  v.  N.  Y.,  L.  E.  &  W.  Railroad  Co.,  106  N.  Y 
19.5,  199  (1887).  — El). 


312  MUSSEY   V.    BEECHER.  [CHAP.  II. 

notes,  one  for  $207,  dated  March  9th,  1842,  signed  "  W.  Pierce,  agent 
of  L.  S.  B. ;  "  and  the  other  for  $250,  dated  August  8th,  1841,  and 
signed  in  the  same  manner.  The  balance  found  due  by  the  auditor 
on  the  notes  was  $214.15,  and  for  goods  sold,  after  deducting  a  set- 
off, $890.25,  making  in  the  whole  $1104.40.  The  jury  returned  a 
verdict  for  the  plaintiff  for  $660.57. 

The  cause  was  tried  in  this  court  before  Wilde,  J.,  by  whom  it  was 
reported  for  the  consideration  of  the  whole  court. 

The  report  was  as  follows  :  — 

It  appeared  that  the  plaintiff  was  a  bookseller  and  publisher  in 
Boston,  and  that  Pierce  carried  on  a  bookseller's  shop  in  Andover,  as 
the  agent  of  Leonard  Woods,  until  the  1st  of  January,  1842,  at  which 
date  his  agenc}'  for  Woods  ceased,  and  he  thenceforth  carried  on  the 
same  business  and  purchased  goods,  under  a  written  authority  from 
the  defendant.     The  following  is  a  copy  of  this  instrument :  — 

Know  all  men  by  these  presents,  that  I,  Laban  S.  Beecher,  of  Roxbury,  in  the 
county  of  Norfolk,  (doing  business  in  Boston),  leather  dealer,  do  hereby  constitute 
and  apjjoint  William  Pierce,  of  Andover,  in  the  county  of  Essex,  bookseller,  my 
sufficient  and  lawful  attorney,  for  me,  in  my  behalf  and  as  my  agent,  to  purchase 
books,  paper,  and  stationery,  for  the  purpose  of  carrying  on  business  in  said  Andover ; 
and  the  same  to  sell  again,  for  my  benefit  and  on  my  account,  on  such  credit  and  at 
such  prices  as  he  may  deem  meet ;  to  collect,  recover,  demand  and  receive  all  debts 
and  sums  of  money  due  and  receivable  for  and  on  account  of  the  sales  of  said  goods 
and  merchandise,  and  generally  to  do  and  perforin  such  matters  and  things  as  are 
necessary  and  proper  for  the  carrying  on  and  conducting  of  said  business. 

Provided,  however,  that  said  Pierce  shall  not  make  purchases  or  incur  debts 
exceeding  in  amount  at  any  one  time  the  sura  of  two  thousand  dollars,  and  also  that 
this  power  or  agency  shall  not  extend  for  a  period  of  time  more  than  one  year  from 
the  date  hereof,  or  beyond  the  1st  day  of  January,  a.  d.  1842.  Hereby  ratifying  and 
confirming  whatsoever  my  said  attorney  may  do  in  the  premises.  In  testimony 
whereof,  I  have  hereunto  set  my  hand  and  seal  this  first  day  of  January,  in  the  year 
eighteen  hundred  and  forty-one. 

E.  N.  Badger,  witness.  Laban  S.  Beechee  (seal). 

Boston,  Jan.  1,  1842. 
The  foregoing  instrument  is  hereby  continued  in  force  for  twelve  months  from  this 
date.  Laban  S.  Beecher. 

This  paper,  it  was  admitted,  was  exhibited  by  Pierce  to  the  plain- 
tiff, Mussey,  prior  to  the  sale  and  delivery  of  any  of  the  goods,  out  of 
which  this  controversy  arose  ;  and  it  was  proved  that  the  plaintiff  sub- 
sequently sold  and  delivered  to  Pierce  the  goods  which  were  charged 
on  the  plaintiffs  books  to  Pierce,  and  bills  of  which  were  rendered  to 
Pierce  in  his,  Pierce's,  name. 

Pierce  was  called  as  a  witness  by  the  plaintiff,  and  testified  to  the 
custody,  execution,  and  delivei-y  of  the  instrument  creating  the  agenc}', 
which  the  defendant  was  notified  to  produce,  and  which,  upon  the 
cross-examination  of  this  witness,  was  produced.  On  such  cross-ex- 
amination Pierce  testified,  among  other  things,  that,  in  fact,  the  amount 
of  his  purchases  of  various  persons,  during  the  period  from  March  1st 
to  September  1st,  1842,  exceeded,  at  all  times,  the  sum  of  $2000  ;  that 


SECT.  III.]  MUSSEY    V.    BEECHER.  313 

his  suspicions  were  aroused  on  tliis  point  in  July  and  August,  but 
that  lie  did  not  go  into  any  particular  investigation  until  August ;  tliat, 
before  the  27th  of  August,  he  had  investigated  the  matter  sufficiently 
to  satisfy  himself  that  the  agency  was  full ;  that,  on  the  27th  of  August, 
he  applied  to  the  plaintiff  to  purchase  a  bill  of  goods  amounting  to 
$168.23,  which  was  included  in  the  auditor's  report;  that  the  plaintiff 
inquired  of  him  whether  the  agency  was  full,  and  if  there  was  no  danger 
of  his  buying  beyond  ;  that  the  witness  replied,  that  it  was  full,  and 
that  the  bill  must  be  sold  to  him  on  his  own  credit ;  to  which  the  plain- 
tiff replied,  that  payments  would  be  making,  by  and  by,  which  would 
reduce  the  amount,  and  then  it  would  come  within  the  agency,  and 
that  he,  the  plaintiff,  should  be  willing  to  trust  the  witness  $300  to 
$400  on  his  own  responsibility.  The  witness  also  testified,  that,  from 
time  to  time,  during  the  summer,  the  plaintiff  inquired  of  him,  when  he 
went  in  to  purchase,  whether  his  agency  was  full ;  that  the  witness  had 
sometimes  replied  that  it  was  nearly  full ;  that  at  another  time  witness 
thought  (but  was  uncertain)  that  it  was  probably  full ;  that,  during  his 
agency,  he  from  time  to  time  furnished  the  defendant  with  the  data 
respecting  the  amount  of  his  indebtedness  ;  that  the  defendant  knew  in 
August  that  the  amount  far  exceeded  the  sum  named  in  the  written 
authority  ;  and  that  he  knew  it  in  September ;  witness  was  more  doubt- 
ful as  to  the  defendant's  knowledge  in  July,  but  testified  that  it  was 
probable  that  he  also  knew  it  in  July  ;  that  in  October  the  defendant 
required  the  witness  to  notify  formally  two  or  three  parties  he  was 
dealing  with,  that  the  agency  was  at  an  end,  and  that  among  others  he 
notified  the  plaintiff;  that  in  August,  the  defendant  complained  to  the 
witness,  that  the  agency  was  full,  and  this  led  the  witness  to  make  the 
investigation  previously  referred  to,  and  he  communicated  the  result 
to  the  defendant. 

It  was  contended  by  the  plaintiff,  that  there  was  evidence  tending  to 
show,  that  the  limitation,  both  of  amount  and  time,  had  beei»  extended 
or  waived  by  the  defendant ;  but  this  was  wholly  denied  by  the 
defendant.  The  plaintiff  also  contended  that  Pierce  was  mistaken 
in  his  statement,  that  in  August  he  gave  notice  to  the  plaintiff  that  the 
agency  was  full,  and  that  the  purchase  then  made  was  upon  his  own 
personal  credit ;  and,  for  that  purpose,  he  offered  in  evidence  certain 
schedules  purporting  to  set  forth  his  debts,  subscribed,  sworn  to  and 
filed,  and  afterwards  amended  by  Pierce,  in  November  and  December, 
1842,  in  the  District  Court  of  the  United  States,  in  the  proceedings 
under  his  petition  to  be  declared  a  bankrupt,  and  for  a  discharge  from 
his  debts,  to  show  that  in  the  schedules  no  debt  was  set  forth  as  due 
from  him  to  the  plaintiff.  To  the  admission  of  this  evidence  the 
defendant  objected,  but  the  court  admitted  the  same.  The  defendant 
contended,  that  the  burden  of  proof  was  on  the  plaintiff,  to  show  that 
the  goods  sought  to  be  recovered  were  sold  to  Pierce  as  agent  for  the 
defendant,  under  the  power  above  referred  to,  and  that  as  such  power 
was  limited,  the  plaintiff  must  also  show   that  the  goods  were  sold 


314  MUSSEY   V.    BEECHER.  [CHAP.  II. 

within  the  limits  and  provisions  of  the  power,  and  that  if  he,  Pierce, 
had  already  purchased  goods  to  a  greater  amount  than  S2000,  under 
the  power,  the  plaintiff  could  not  recover  of  tlie  defendant  in  this 
case. 

But  the  court  instructed  the  jur\-,  that  the  i)laintiff  must  show  that 
the  goods  were  sold  under  the  power  to  Pierce  as  the  defendant's 
agent,  and  not  upon  the  personal  credit  of  Pierce  ;  and  that  although 
the  power  was  limited,  and  such  limitation  was  known  to  the  plaintiff, 
yet  that  the  defendant  would  be  liable  for  Pierce's  purchases,  even 
though  he  had  already  exceeded  tlie  amount  authorized  by  the  power, 
if  the  jury  were  satisfied,  from  the  evidence,  that,  at  the  time  of  the 
purchases.  Pierce  represented  that  by  such  purchases  he  would  nut 
exceed  his  limit. 

The  court  further  instructed  the  jury,  that  if  they  were  satisfied  that 
Pierce  notified  the  plaintiff  that  the  agency  was  full,  that  from  the 
time  of  giving  such  notice  the  plaintiff  could  not  recover,  if  such 
agency  was  in  fact  full,  or  he  trusted  Pierce  on  his  own  credit ;  and, 
also,  that  if  afterwards  the  plaintiff  had  inquired  of  Pierce  about  the 
agenc}',  and  had  been  informed  b}'  him  that  it  was  not  full,  and  the 
plaintiff  had  no  r«ason  to  suspect  the  truth  of  Pierce's  declaration,  and 
if  the  plaintiff  then  sold  goods  to  Pierce  as  agent,  as  aforesaid,  the 
defendant  would  be  liable  for  such  goods,  even  though  the  agency  was 
then  full. 

If  either  of  the  foregoing  rulings  or  refusals  of  the  court  was  errone- 
ous, a  new  trial  is  to  be  granted,  otherwise  judgment  is  to  be  rendered 
on  the  verdict. 

W.  Brigham^  for  the  defendant. 

S.  Hartlett,  for  the  plaintiff. 

The  opinion  of  a  majority  of  the  court  was  delivered  by 

Shaw,  C.  J.^  The  former  part  of  this  instruction,  that  it  must 
appear  that  the  goods  were  not  sold  on  the  personal  credit  of  Pierce, 
is  unquestionabl}'  correct ;  but,  in  regard  to  the  latter  part,  which 
makes  the  defendant  responsible  for  the  veracity  and  accuracy  of 
Pierce,  a  majorit}'  of  the  court  are  of  opinion  that  it  was  not  correct 
in  point  of  law. 

This  power  of  attorney,  which  is  in  the  nature  of  a  letter  of  credit, 
is  precise  and  limited  in  amount ;  and  though  it  contains  some  ex- 
pressions intimating  that  the  attorney  is  the  general  agent  of  the 
constituent  to  purchase  and  sell  goods,  yet  this  is  controlled  by  the 
proviso  and  express  condition ;  and,  taken  all  together,  as  every 
written  instrument  must  be,  it  is  an  authority  to  purchase  in  the  name 
and  on  the  credit  of  tlie  author  of  the  power,  to  the  amount  of  $2000 
and  no  more. 

The  precise  point  is  this,  whether,  if  Pierce,  through  design  or 
mistake,  represented  to  the  plaintiff  that  when  he  made  the  purchase 

*  After  stating  the  case.  —  Ed. 


SECT.  III.]  MUSSEY    V.    BEECHER.  315 

in  question,  he  had  not  purchased  on  the  credit  of  his  principal  to  the 
amount  of  S2000,  when,  in  truth,  his  purchases  exceeded  that  sum,  the 
defendant  was  bound  b}-  it.  It  is  unquestionably  true  that  the  state- 
ments and  representations  of  an  agent,  in  transacting  the  business 
of  his  principal  within  the  scope  of  his  authority,  are  as  binding  on 
his  principal  as  any  other  acts  done  within  the  scope  of  his  author- 
ity ;  they  are  res  ffestce,  and  are  acts.  But  an  agent  cannot  enlarge 
his  authority  any  more  by  his  declarations  than  by  his  other  acts  ; 
and  the  rule  is  clear  that  the  acts  of  an  agent  not  within  the  scope  of 
his  authority  do  not  bind  the  principal.  It  is  often  said,  indeed,  that 
one  is  bound  b}-  the  acts  of  a  general  agent,  though  done  against  his 
instructions.  This  is  because  the  acts  are  within  the  scope  of  his 
authority;  and  the  violation  of  his  instructions,  in  the  execution  of  such 
authority,  is  a  matter  solely  between  himself  and  his  princii)al,  which 
cannot  affect  a  stranger  dealing  with  him  without  express  notice. 

The  argument  is,  that  the  defendant  ought  to  be  bound,  because 
Pierce  was  his  agent,  and  he,  bj-  his  letter  of  attorney,  had  put  it  in 
his  power  to  make  such  purchase.  This,  it  appears  to  us,  assumes  the 
very  point  to  be  proved.  The  plaintiff  knew  that  he  was  limited  to 
$2000  ;  he  knew,  therefore,  that  if  he  had  purchased  to  that  amount, 
his  power,  by  its  own  limitation,  was  at  an  end.  If  it  were  otherwise, 
a  power  to  purchase  to  the  amount  of  $2000,  would  operate  as  a 
power  to  purchase  to  an  unlimited  amount.  But  it  is  urged  that, 
npon  this  construction,  no  one  could  safel\-  deal  with  the  agent. 
This  objection,  we  think,  is  answered  b}'  the  consideration  that  no  one 
is  bound  to  deal  with  the  agent,  whoever  does  so  is  admonished  of  the 
extent  and  limitation  of  the  agent's  authoritv,  and  must,  at  his  own 
peril,  ascertain  the  fact  upon  which  alone  the  authority  to  bind  the 
constituent  depends.  Under  an  authorit}-  so  peculiar  and  limited,  it 
is  not  to  be  presumed  that  one  would  deal  with  the  agent,  who  had 
not  full  confidence  in  his  honesty  and  veracity,  and  in  the- accuracy  of 
his  books  and  accounts.  To  this  extent,  the  seller  of  the  goods  trusts 
the  agent,  and  if  he  is  deceived  by  him,  he  has  no  right  to  complain 
of  the  principal.  It  is  he  himself,  and  not  the  principal,  who  trusts  the 
agent  beyond  the  expressed  limits  of  the  power;  and,  therefore,  the 
maxim,  that  where  one  of  two  innocent  persons  must  suffer,  he  who 
reposed  confidence  in  the  wrong-doer  must  bear  the  loss,  operates  in 
favor  of  the  constituent,  and  not  in  favor  of  the  seller  of  the  goods. 
Parsons  v.  Armor,  3  Pet.  413  ;  Stainer  v.  Tysen,  3  Hill,  279  ;  Attwood 
V.  Munnings,  7  Barn.  &  Cr.  278.  The  case  of  Putnam  v.  Sullivan,  4 
Mass.  45.  was  decided  on  the  ground  that  the  defendants,  by  leaving 
blank  indorsements  with  their  clerk,  had  authorized  him  b}-  his  act  to 
bind  them  as  indorsers. 

On  the  whole,  a  majority  of  the  court  are  of  opinion  that  the  verdict 
must  be  set  aside,  and  a  new  trial  granted. 

Wilde,  J.  I  have  been  unable  to  agree  with  m}'  learned  brethren  in 
the  decision  of  the  question  raised  at  the  trial  of  this  cause,  although 
I  fully  admit  the  principles  on  which  the  question  has  been  decided. 


316  UPTON   V.    SUFFOLK   COUNTY    MILLS.  [CHAP,  IL 

In  my  judgment,  with  great  deference  to  the  opinion  of  m}'  brethren, 
thesft  principles  are  not  applicable  to  the  present  case.  The  question, 
as  it  seems  to  me,  turns  on  a  well-established  principle  of  law,  which 
I  am  not  aware  has  ever  been  disputed. 

The  principle  is  this,  that  wherever  one  of  two  innocent  persons 
must  suffer  by  the  acts  of  a  third,  he  who  has  enabled  such  third  person 
to  occasion  the  loss  must  sustain  it.  .  .  } 

Now,  in  m}'  judgment,  these  instructions  are  not  liable  to  an}'  well- 
founded  exception.  I  admit  that  the  plaintiff  was  bound  to  inquire 
into  the  agent's  authority,  and  whether  the  sales  to  him,  on  the  credit 
of  the  defendant,  would  not  exceed  the  amount  limited  in  his  power  of 
attorne}-.  But  of  whom  was  he  to  inquire?  He  certainl}'  had  no  means 
of  knowing ;  and  if  he  might  not  rely  on  the  representations  of  the 
agent,  the  consequence  would  be  that  no  sale  could  safely  be  made  on 
credit  under  the  power.  But  the  power  was  given  to  be  used  for  the 
benefit  of  the  defendant,  and  if  given  in  such  a  form  as  to  enable  the 
agent  to  perpetrate  a  fraud,  by  obtaining  credit  b}-  false  representa- 
tions, and  credit  was  so  obtained,  and  a  loss  occurred,  it  should  be 
sustained  b}'  the  defendant,  and  not  bj-  the  plaintiff,  who  dealt  with  the 
agent  in  good  faith,  without  knowing,  or  having  an}'  means  of  knowing, 
that  he  was  exceeding  his  authority. 

I  am  therefore  of  opinion,  upon  the  authorities,  and  upon  the 
principle  of  law  to  which  I  have  referred,  that  the  instructions  given  to 
Khe  jury  were  correct. 

Verdict  set  aside,  and  new  trial  granted.^ 


UPTON  V.   SUFFOLK   COUNTY   MILLS. 
Supreme  Judicial  Court  of  Massachusetts.    1853. 

[11  Cush.  586.] 

Assumpsit  for  breach  of  a  warrant}'  that  certain  flour  should  keep 
sweet  during  a  voyage  to  California.  The  defendants,  a  corpora- 
tion established  for  the  manufacture  and  sale  of  flour,  among  other 
grounds  of  defence,  not  necessary  to  report,  denied  that  the}'  under- 
took and  warranted  as  set  forth  in  the  declaration.  At  the  trial  in 
this  court,  before  Bigelow,  J.,  it  appeared  that  the  plaintilT,  being  a 
merchant  engaged  in  the  California  trade,  on  the  19th  of  January,  1850, 

*  Citing  Lickbarrow  v.  Mason,  2  T.  R.  63,  70,  per  Ashhurst,  J. ;  Hern  i*.  Nichols, 
ante,  p.  90,  per  Holt,  C  J. ;  Putnam  v.  Sullivan,  4  Mass.  45,  54,  per  Parsons,  C  J. ;  and 
North  River  Bank  r.  Aymar,  ante,  p.  303,  per  Cowen,  C.  J. ;  and  restating  the  prin- 
cipal case.  —  Ei>. 

2  Compare  Lowell  Five  Cents  Savings  Bank  i:  Winchester,  8  Allen,  109  (1864). 
—  Ed.  , 


SECT.  III.]  UPTON    V.    SUFFOLK    COUNTY    MILLS.  317 

obtained  from  the  agent  of  the  defendants  the  following  memorandum 
of  agreement  in  writing,  namely  :  "  I  am  to  furnish  Mr.  Upton  4,000 
qrs.  bbls.  of  flour,  in  good  tight  packages,  on  or  before  the  18th  Febru- 
ary next.  The  flour  to  be  of  such  a  character  as  will  insure  its  keep- 
ing sound  on  a  voyage  to  San  Francisco.  For  S.  C.  Mills,  W.  W. 
Allcott.     January  19th,  1850." 

On  the  18th  of  February,  1850,  the  flour  having  been  made  at  the 
defendants'  mills,  and  delivered  to  the  plaii^ift'  for  shipment,  the  said 
Allcott  made  out  and  delivered  to  the  plaintiff"  the  following  bill  of  par- 
cels, receipt,  and  memorandum  of  warranty  :  "Boston,  Feb.  18th, 
1850.  Mr.  Geo.  B.  Upton,  Bo't  of  W.  W.  Allcott  [flour  described]. 
Rec'd  pay't,  Feb.  18th,  1850,  by  notes  payable  in  6  months.  William 
W.  Allcott.  The  above  flour  is  warranted  to  keep  sweet  during  voj'age 
to  California.     Witness,  Geo.  B.  Upton,  Jr." 

The  warranty,  receipt,  and  signature,  on  the  above  bill  of  parcels, 
were  in  the  handwriting  of  said  Allcott.  The  residue  of  the  bill  of 
parcels  was  written  by  a  clerk.  The  plaintiff  also  offered  evidence 
tending  to  show  the  injury  to  the  flour  on  the  vo\-age  to  California,  but 
the  evidence  upon  this  point  became  immaterial  in  the  final  decision  of 
the  cause. 

For  the  defendants,  said  W.  W.  Allcott,  among  other  things,  testi- 
fied as  follows:  "  In  January,  1850,  I  held  the  office  of  superintendent 
and  general  agent  for  the  Suffolk  Count}'  Mills  (the  defendants).  My 
duties  were  confined  to  manufactui'ing  and  selling  on  commission.  I 
have  been  a  director  for  some  time.  I  had  no  special  instructions  in 
regard  to  making  sales.  No  authorit}-  was  ever  given  me  b}'  the  com- 
pan}-  to  enter  into  such  a  warranty  as  in  the  bill  of  parcels.  I  never 
represented  to  Mr.  Upton  that  I  did  not  have  such  authority.  I  never 
mentioned  to  the  directors  that  I  had  given  such  a  warrant}'  until  the 
claim  was  made  b}-  Mr.  Upton.  I  return  the  proceeds  of  sales  from 
da}'  to  day  to  the  treasurer.  My  agency  in  selling  is  limited  to  selling 
and  paying  over  the  proceeds.  I  think  no  extra  price  was  paid  for  the 
warranty.  I  never  stated  to  Mr.  Upton  that  this  was  my  contract,  and 
not  that  of  the  company.  I  made  this  sale  for  a  commission,  on 
account  of  the  Suffolk  County  Mills,  and  as  their  propert}-.  I  entered 
the  sales  as  agent  of  the  company,  in  books  belonging  to  the  com- 
pany, but  not  the  warranty."  Ui)on  this  and  much  other  evidence  in 
the  case,  which  finall}'  became  immaterial,  the  case  was  taken  from  the 
jury  under  an  agreement  of  the  parties,  that  if  the  court  should  find 
upon  the  evidence  that  the  contract  of  warranty  wa§  not  originally 
binding  upon  the  defendants,  or  had  not  been  ratified  by  them,  the 
plaintifl^  was  to  become  nonsuit ;  otherwise  the  case  was  to  be  referred 
to  assessors. 

G.  T.  Curtis  and  C.  P.  Curtis,  Jr.,  for  the  plaintiff. 

C  G.  Loring  and  /.    W.  Thornton.,  for  the  defendants. 

Metcalf,  J.  The  court  have  not  found  it  necessary  to  form  an  opin- 
ion upon  a  question  which  was  ably  argued,  namely,  whether  the  con- 


318  UPTON    V.    SUFFOLK   COUNTY    MILLS  [CHAP.  IL 

tract  declared  on  legally  purports  to  be  a  contract  between  the  plaintiff 
and  the  defendants.  Assuming  that  it  does,  yet  we  are  all  of  opinion 
that  the  defendants  are  not  bound  b}-  it,  because  AUcott  had  no 
authority  to  bind  them  by  such  a  contract.  It  appears  from  his  testi- 
mony that  he  was  their  general  selling  agent,  and  had  no  special 
instructions  in  regard  to  making  sales  ;  that  no  authority  (by  which  he 
doubtless  means  express  authorit}')  was  ever  given  to  him  bj'  the  de- 
fendants to  make  such  ^  warranty  as  that  on  which  this  action  is 
brought ;  that  no  extra  price  was  paid  for  the  flour  by  reason  of  the 
warranty  ;  that  tliough  the  sale  was  entered  on  the  defendants'  books, 
yet  that  the  warranty  was  not  entered  there  ;  and  that  the  defendants 
bad  no  notice  of  the  warrant}'  until  they  were  called  upon  b^-  the  plain- 
tiff to  answer  for  a  breach  of  it. 

The  single  question  which  we  have  examined  is,  what  is  the  extent 
of  the  implied  authority'  of  a  general  selling  agent?  The  answer  is,  it 
is  the  same  as  that  of  other  general  agents.  And  it  is  an  elementary 
principle  that  an  agent  employed  generalh'  to  do  an}-  act,  is  authorized 
to  do  it  only  in  the  usual  way  of  business.  Smith's  Merc.  Law  (Amer. 
ed.  1847),  \05  (5th  ed.),  129  ;  Woolrych  on  Com.  &  Merc.  Law,  319  ; 
Jones  r.  Warner,  11  Conn.  48,  A  general  agent  is  not,  by  virtue  of 
his  commission ,  permitted  to  depart  from  the  usual  manner  of  effecting 
what  he  is  emploj'ed  to  effect.  3  Chit.  Law  of  Com.  &  Man.  199. 
When  one  authorizes  another  to  sell  goods,  he  is  presumed  to  authorize 
him  to  sell  in  the  usual  manner,  and  only  in  the  usual  manner,  in  which 
goods  or  things  of  that  sort  are  sold.  Stor}-  on  Agency,  §  60.  See 
also  Shaw  v.  Stone,  1  Cush.  228.  The  usage  of  the  business  in  which 
a  general  agent  is  employed  furnishes  the  rule  b}-  which  his  authorit}-  is 
measured.  Hence,  a  general  selling  agent  has  authority  to  sell  on 
credit,  and  to  warrant  the  soundness  of  the  article  sold,  when  such  is 
the  usage.  Goodenow  v.  Tyler,  7  Mass.  36  ;  Alexander  v.  Gibson, 
2  Campb.  555  ;  Nelson  v.  Cowing,  6  Hill,  336  ;  2  Kent  Com.  (6th  ed.) 
622;  Russell  on  Factors,  58;  Smith  on  Master  &  Servant,  128,  129. 
But  as  stocks  and  goods  sent  to  auction  are  not  usuall}-  sold  on  credit, 
a  stock-broker  or  auctioneer  has  no  authority  so  to  sell  them,  unless  he 
has  the  owner's  express  direction  or  consent.  Wiltshire  v.  Sims,  1  Campb. 
258  ;  3  Chit.  Law  of  Com.  &  Man.  205  ;  1  Bell  Com.  388.  And  it  was 
said  b}'  Mr.  Justice  Thompson  (9  Wheat.  647)  that  auctioneers  have  only 
authority-  to  sell,  and  not  to  warrant,  unless  specially  instructed  so 
to  do. 

As  there  is  no  evidence  nor  suggestion  of  a  usage  to  sell  flour  with 
the  hazardous  warranty  that  it  shall  keep  sweet  during  a  sea  voyage, 
in  which  it  must  twice  cross  the  equator,  we  deem  it  quite  clear  that 
nothing  short  of  an  express  authority,  conferred  on  Allcott  by  the 
defendants,  would  empower  him  to  bind  them  by  such  a  w-arrant}'.  See 
Cox  V.  Midland  Counties  Railway  Compan}-,  3  Welsh.  Hurlst.  &  Gord. 
278.  Plaintiff  nonsuit. 


SECT.  111.]  TEMPLE   V.   POMEOY.  319 


TEMPLE  V.  POMROY. 
Supreme  Judicial  Court  of  Massachusetts.     1855. 

[4   Graij,  128.] 

Action  of  Contract  against  Daniel  Puiiiioy  and  Francis  T.  Swan, 
desciibing  them  as  late  partners  in  the  butchering  business  under  the 
firm  of  Pomroy  &  Swan,  on  a  negotiable  promissory  note  signed  with 
their  individual  names.  Swan  was  defaulted.  A  trial  was  had  in  the 
Court  of  Common  Pleas  at  August  term,  1855,  before  Mellex,  C.  J., 
who  signed  the  following  bill  of  exceptions  :  — 

"  It  appeared  that  the  signature  of  the  defendant  Pomroy  was  not 
affixed  to  the  note  by  himself,  nor  in  his  presence.  The  plaintiff  offered 
evidence  to  show  that  it  was  affixed  by  Swan,  acting  as  Pomroy's  agent. 
The  defendant  Pomroy  objected  to  parol  proof  that  the  name  was  affixed 
by  an  agent,  that  fact  not  appearing  on  the  face  of  the  paper.  The 
evidence  was  admitted  by  the  court,  the  court  ruling  that  it  was  com- 
petent to  show  that  the  signature  of  Pomroj"  was  put  to  the  note  by  an 
agent  thereto  duly  authorized,  though  no  words  of  procuration  appeared 
on  the  face  of  the  note ;  and  the  court  left  the  question  of  fact  to  the 
jury  to  find,  whether  Swan,  by  whom  it  was  proved  Pomroy's  name  was 
written  on  the  note,  had  authoritj'  to  sign  Pomro^^'s  name  to  the  note 
without  naming  his  agenc}'. 

""  There  was  evidence  tending  to  prove  that  Swan  was  emplo3-ed  by 
Pomro}'  as  his  agent  to  manage  the  butchering  business  in  the  town  of 
Shelburne  from  May,  1853,  to  September,  1853.  The  plaintiff  intro- 
duced evidence  tending  to  show  that  Pomroy  succeeded  one  Martin  in 
the  prior  firm  of  Swan  &  Martin,  who  carried  on  the  business  of  buying 
and  selling  meat  and  slaughtering.  And  the  books  and  acts  of  the  de- 
fendant Pomroj' ;  and  his  dealings  ;  books  of  account  kept  in  his  own 
name,  containing  credits  of  cattle  purchased  by  said  Swan  for  the  busi- 
ness,  while  it  was  going  on,  and,  in  two  or  three  instances,  notes  entered 
and  charged  in  payment  of  the  same  accounts  opened  with  each,  alsQ 
showing  the  small  amount  of  moneys  advanced  by  Pomroy  to  carry  on 
the  business,  compared  with  the  exigencies  of  the  business  carried  on  ; 
and  the  fact  that,  in  some  other  instances,  notes  were  signed  in  the 
same  waj-,  in  similar  transactions,  —  were  offered  in  evidence  to  show 
in  the  first  instance  an  authority  in  Swan  to  bind  Pomroy  by  note,  as  a 
partner,  and  in  the  next  place,  as  agent,  under  an  authoritj-  express  oi 
implied  from  Pomroy  as  principal. 

"  The  counsel  for  the  defendant  Pomroy  requested  the  court  to  in- 
struct the  jury  that  no  implication  of  authority  to  sign  the  note  arose 
from  the  fact  that  Swan  was  an  agent  to  carry  on  the  business,  as  shown 
by  the  evidence ;  and  that  such  authority  was  not  to  be  implied  froni 
the  nature  of  the  business.  The  court  declined  so  to  give  the  instruct 
tions,  as  matter  of  law,  but  left  it  to  the  jury,  upon  all  the  evidence  in 


320  TEMPLE    V.    POMKOY.  [CHAP.  II. 

the  case,  to  find  whether  Swan  was  authorized  by  Pomroy  to  sign  his 
name  to  the  note  in  suit  without  naming  his  agenc}". 

"  There  was  evidence  tending  to  show  that  another  note  to  one  Hall, 
signed  similarly  to  that  in  the  present  action,  had  been  paid  b}'^  Pomro}' 
under  protest,  and  upon  receiving  security  which  he  deemed  to  be  suffi- 
cient from  Swan. 

"  The  defendant's  counsel  asked  the  court  to  instruct  the  jury  that 
the  payment  of  a  single  note  under  these  circumstances  could,  at  the 
most,  prove  nothing  more  than  that  the  defendant  misunderstood  or 
was  willing  to  waive  his  real  rights.  But  the  court  declined  so  to  rule, 
as  a  matter  of  law,  and  instructed  the  jury  that  this  was  a  question  of 
fact  for  them  to  determine,  how  far  this  evidence,  under  the  circum- 
stances, tended  to  prove  an  agency  in  Swan  to  sign  the  note  in  suit. 
And  the  judge  further  charged  the  jury,  that  if  they  should  find  that 
the  giving  of  notes  was  necessarily  incident  to  the  management  of 
the  business  Swan  was  authorized  by  Pomroy  to  conduct  for  him,  the 
agenc}'  would  imply  an  authority  for  that  purpose. 

"  To  these  refusals  and  rulings  the  defendant  excepts." 

C.  Allen,  for  Pomroy. 

C.  P.  Huntington,  for  the  plaintiff. 

Merrick,  J.  The  plaintiff  does  not  contend  that  Swan  was  ex- 
pressly' authorized  by  Poraro}'  to  put  his  signature  to  the  note  in  suit- 
As  a  general  rule,  a  special  agent,  or  one  who  is  employed  to  make 
purchases  for  his  principal,  has  no  authorit}',  unless  it  is  directly  con- 
ferred, to  bind  him  by  a  negotiable  note  or  bill  of  exchange.  But  such 
a  power  is  a  necessar}'  implication  from  his  employment,  whenever  its 
exercise  is  indispensable  to  the  discharge  of  the  duties  to  be  performed. 
Paige  V.  Stone,  10  Met.  168  ;  Tabor  v.  Cannon,  8  Met.  458,  459.  To 
the  general  instructions,  therefore,  of  the  presiding  judge,  that  if  the 
giving  of  notes  in  the  name  of  his  principal  was  necessarily  incident  to 
the  management  of  the  business  which  he  was  to  conduct  for  Pomroy, 
his  agenc}-  would  impl}'  an  authoritv  for  that  purpose,  there  appears  to 
be  no  valid  ground  of  objection.  But  in  reference  to  particular  ques- 
tions which  arose  in  the  progress  of  the  trial,  and  to  which  the  attention 
of  the  court  was  requested  b3'  the  defendant,  the  rulings  and  instruc- 
tions given  to  the  jury  are  not  equally  satisfactor}'. 

1.  Evidence  was  adduced  by  the  plaintiff,  tending  to  show,  and  which 
may  now  be  considered  as  sufficient  to  prove,  that  on  some  other  occa- 
sion a  note  similar  to  the  one  in  suit,  and  signed  in  the  same  manner, 
had  been  made  by  Swan,  in  the  course  of  his  dealing  in  the  business  of 
Pomro3%  payable  to  a  person  of  the  name  of  Hall,  which  was  afterwards 
paid  by  Pomroy,  though  under  protest,  and  not  until  he  had  received 
from  Swan  what  he  considered  satisfactor}'  security  to  indemnify  him 
for  doing  so.  His  counsel  contended,  in  substance,  that  the  payment 
to  Hall,  under  such  circumstances,  implied  no  authority  in  Swan  to 
make  other  notes,  or  the  note  in  suit,  in  his  name  ;  and  that,  in  short, 
it  proved  nothing  more  than  that  he  might  in  this  instance  have  mis- 


SECT.  III.]  TEMPLE    V    POMROY.  321 

understood  or  was  willing  to  waive  his  rights.  But  the  court  declined 
to  rule  to  this  effect,  as  matter  of  law,  and  instructed  the  jury  that  the}' 
were  to  determine  how  fur  this  evidence  tended  to  prove  the  authority 
of  Swan,  as  the  agent  of  Pomroy,  to  put  his  signature  to  the  note  in 
suit.  This  instruction  cannot  be  sustained.  It  imported  that  it  was 
competent  for  the  jur}'  to  infer  from  this  evidence  the  lawful  authority' 
of  the  agent  to  bind  his  principal,  in  another  instance  and  upon  another 
occasion,  by  a  promissory  note.  This  was  erroneous,  because  such  an 
authorit}'  is  never  to  be  assumed  or  inferred,  unless  it  results  as  a 
necessar}'  implication  from  the  facts  established.  And  surely  the 
transactions  concerning  the  note  to  Hall  afford  no  ground  for  such  an 
implication.  It  does  not  appear  that  Pomro}'  had  any  knowledge  of 
its  existence  until  the  time  of  its  maturity.  He  paid  it  then  under  pro- 
test; that  is,  as  we  understand  it,  denying  the  authorit}-  of  Swan  to 
make  it,  and  his  own  liability  to  be  bound  by  it.  And  he  fortified  this 
denial  by  persisting  in  his  refusal  to  pay  until  he  received  from  Swan 
security  for  the  reimbursement  of  the  money  he  should  advance  for  that 
purpose.  All  this  evidence  concerning  the  note  to  Hall  ma}-  have  been 
inadvertently  admitted  upon  the  trial,  but  since  it  was  received,  the 
jury  should  have  been  guarded,  as  the  defendants'  counsel  desired  that 
they  should  be,  from  giving  it  an  effect  to  which  it  was  not  legally 
entitled. 

2.  The  counsel  for  Pomroy  further  requested  the  court  to  instruct  the 
jury  that  no  implication  of  authorit}'  to  sign  the  note  in  suit  arose  from 
the  fact  that  Swan  was  an  agent  to  carr}-  on  the  business,  as  shown  by 
the  evidence,  and  that  such  authorit}'  could  not  be  implied  from  the 
nature  of  the  business.  The  evidence  referred  to  in  this  request  is  so 
imperfectly  detailed  and  exhibited  in  the  bill  of  exceptions  that  it  is 
very  difficult,  and  perhaps  impossible,  to  appreciate  exacth'  the  ques- 
tion proposed  to  the  court,  or  the  ruling  which  was  made  upon  it.  Nor 
is  this  necessary,  since  it  is  apparent  that  the  instructions  given  to  the 
jur}-  in  relation  to  it  were  not  accompanied  by  the  necessar}'  qualifica- 
tions and  restrictions.  It  was  left  to  them,  in  indefinite  terms,  to  find, 
upon  all  the  evidence  in  the  case,  whether  Swan  was  authorized  to  sign 
his  name  to  the  note  in  suit  without  naming  his  agency.  The  question 
of  fact,  which  was  in  issue  in  relation  to  that  authority,  it  was  undoubt- 
edlv  their  duty  to  determine  ;  and  so  far  the}-  were  rightly  advised 
by  the  court.  But  under  the  special  requests  submitted  by  the  counsel 
for  the  defendant,  they  should  also  have  been  advised  that,  though  an 
agent  employed  to  make  purchases  for  his  principal  may  undoubtedly 
bind  him  by  a  contract  of  sale,  he  cannot  ordinarily,  without  express 
authority,  bind  him  by  a  negotiable  promissory  note  ;  and  that  the 
single  exception  to  this  positive  rule  is  in  relation  to  agencies,  the 
objects  and  purposes  of  which  cannot  be  accomplished  without  the  ex- 
ercise of  such  a  power.  If  the  instructions  which  were  given  in  reply  to 
this  request  of  the  defendant  had  been  connected  with  or  limited  by 
those  which  were  given  apparently  at  a  later  stage  in  the  trial  or  charge, 

21 


322  SEIPLE    V.    IRWIN.  [CHAI-.  II. 

though  the  occasion  which  iiidueod  the  later  explanation,  or  the  precise 
evidence  to  which  it  was  applied,  is  not  developed  in  the  bill  of  excep- 
tions, the3'  might  have  been  held  to  be  sufficient.  But  without  such 
limitations  they  cannot  be  considered  as  having  been  sufficiently  guarded 
to  secure  to  each  of  the  parties  the  legal  rights  to  which  they  were 
respectively  entitled.  Exceptions  sustained. 


SEIPLE  V.   IRWIN. 
Supreme  Court  of  Pennsylvania.     1858. 

[30  Pa.  513.] 

Error  to  the  District  Court  of  Philadelphia. 

This  was  an  action  of  assumpsit  by  Sei[)le  &  Erdman  against  Irwin, 
Shultz,  &  Peiper,  to  recover  the  amount  of  a  bill  of  goods  sold  and 
delivered  to  the  defendants. 

On  the  13th  November,  1854,  the  defendants  purchased  in  plaintiffs' 
store,  on  the  usual  credit,  a  bill  of  goods  amounting  to  $173.02.  The 
bill  was  purchased  from  one  John  AVilson,  a  salesman  in  the  plaintiffs' 
store,  employed  to  sell  goods  on  commission.  On  the  23d  November, 
1854,  the  defendants  paid  the  bill  to  Wilson,  with  a  deduction  of  five 
per  cent  for  cash,  and  took  his  receipt  for  the  amount,  as  agent  for  the 
plaintiffs.  No  authority  to  Wilson  was  shown  to  collect  money  for 
the  plaintiffs. 

The  court  below  (Hare,  J.)  charged  the  jur}'  as  follows  :  — 

"  The  question  for  j'our  determination  is  one  merel}'  of  authority  on 
the  part  of  John  Wilson,  to  collect  money  for  the  plaintiffs.  The  evi- 
dence shows  Wilson  to  have  been  a  salesman  for  plaintiffs,  or  that  he 
was  employed  b}'  them  to  sell  goods.  The  defendants'  counsel  con- 
tends, and  the  fact  no  doubt  is,  that  the  goods  charged  defendants  in 
this  suit  were  sold  b}'  John  Wilson  to  defendants.  The  defendants  have 
offered  in  evidence  John  Wilson's  receipt,  dated  a  few  days  after  the 
sale,  for  the  amount  of  the  bill.  Wliere  a  person  is  employed  to  sell 
goods,  and  is  intrusted  with  the  possession  and  disposal  of  them  by  the 
owners,  and  sells  for  cash,  payment  to  him  b}'  the  purchaser  will  be 
good  ;  and  it  may  well  be  so,  when  he  sells  on  credit ;  but  on  the  other 
hand,  when  the  person  is  merelv  employed  to  sell  goods,  and  sells  on  a 
credit,  without  having  the  possession  or  disposal  of  them,  a  payment 
to  him  will  not  be  good  without  some  other  evidence  of  authority. 
Take,  for  instance,  a  sale  of  goods  across  a  counter,  —  there  the  per- 
son  selling  the  goods  has  the  actual  possession  and  disposal  of  them, 
and  a  payment  to  him  at  the  time  will  be  good.  It  does  not  follow  that 
he  can  collect  the  money  afterwards.  And  I  do  not  conceive  that  a 
clerk's  having  the  authority  to  sell  goods  for  his  employers  for  credit, 


SECT.  HI.]  SEIPLE    V.    IRWIN.  323 

carries  with  it  an  authority  to  collect  the  money  for  the  goods.  It  is 
for  the  purchaser  to  see  to  whom  he  pays  his  money,  and  if  he  pays  the 
clerk  or  salesman  who  effects  the  sale,  without  sufficient  proof  of  his 
authority,  it  is  at  his  risk.  If  Wilson  actually  delivered  the  goods  to 
defendants,  or  had  the  control  of  them  for  the  purpose  of  delivery, 
payment  might  safely  be  made  to  him  ;  or  if  the  defendants  had  shown 
that,  although  Wilson  was  mereh*  employed  for  the  purpose  of  selling 
goods,  yet  that  the  plaintiffs  had  allowed  him  to  collect  money  for  them 
at  any  time,  or  had  kept  him  in  their  employ  after  he  had  made  such 
collections,  that  would  be  sufficient  to  imply  an  authority  from  plain- 
tiff's to  Wilson  to  collect  money,  and  defendants'  pa3ment  would  have 
been  valid.  The  question  of  Wilson's  authority  to  collect  the  amount 
of  this  bill  is  properly  for  your  determination.  Nevertheless,  I  will  say 
to  you,  that  the  mere  fact  that  the  goods  were  sold  bj-  Wilson  to  the 
defendants,  and  that  the\',  the  defendants,  afterwards  paid  Wilson  for 
theui",  does  not  constitute  a  good  defence  to  the  plaintiffs'  claim  in  this 
case,  unless  you  find  some  authoritv  from  the  plaintiff's  other  than  that 
necessarily  implied  in  their  authorizing  him  to  make  sales  for  them  as 
a  salesman." 

The  defendants  excepted  to  the  latter  part  of  this  charge  ;  and  a 
verdict  and  judgment  having  been  given  for  the  plaintiffs  for  S173.02, 
they  removed  the  cause  to  this  court,  and  here  assigned  the  same  for 
error. 

J.  M.  ArundcU  for  plaintiffs  in  error.  The  power  vested  in  an  agent 
to  sell  goods  for  his  principal,  carries  with  it  the  power  to  receive  pay- 
ment for  them.  Capel  v.  Thornton,  3  C.  &  P.  352;  6  Johns.  70;  1 
Caine,  .527  ;  3  Johns.  Cas.  36  ;   1  Caine,  324. 

Marshall  and  Budd,  for  defendants  in  error.  The  alleged  paj'ment 
to  Wilson  was  not  a  part  of  the  same  transaction.  It  was  separate, 
distinct,  independent,  and  irregular.  It  was  not  in  accordance  with 
the  usual  and  customary  course  of  business. 

If  payment  is  not  in  the  usual  and  customary  course  of  business,  and 
is  made  under  circumstances  fairh*  giving  rise  to  the  presumption  that 
the  agent  was  acting  malafide^  and  received  the  mone}'  with  intent  to 
appropriate  it  to  his  own  use  in  fraud  of  the  principal,  the  payment  is 
not  a  valid  payment.  Addison  on  Contracts,  1108.  Whoever  deals 
with  a  special  agent  is  bound  to  acquaint  himself  with  the  limitation 
and  extent  conferred  upon  him,  and  acts  at  his  own  peril.  Story  on 
Contracts,  §  134.  Though  payment  to  a  factor  for  goods  sold  hy  him 
be  valid,  the  principal  may  control  the  collection  and  sue  for  the  price 
in  his  own  name  ;  and  it  is  immaterial  whether  the  agent  was  an  auc- 
tioneer or  a  common  factor.     Girard  v.  Taggart,  5  S.  <fe  R.  19. 

The  cases  of  Pratt  v.  Willey,  2  Carr.  &  Payne,  350,  and  Oilman  v. 
Robinson,  1  Carr.  &  Pa3'ne,  642,  are  referred  to,  as  being  especially 
applicable.  Want  of  authorit}'  in  John  Wilson  to  collect  the  claim  of 
plaintiffs  below,  appears  both  in  the  evidence  and  by  the  verdict  of 
the  jury. 


S24  SMITH    V.    McGUIRE.  [CHAP.  I^; 

The  opinion  of  the  court  was  delivered  bj- 

Pouter,  J.  The  extent  of  the  agent's  authority  was  properly  sub- 
mitted to  the  jury  as  a  question  of  fact.  The  point  drawn  into  dis- 
pute is  the  qualifying  remark,  that  the  defence  would  be  incomplete, 
unless  the  jury  found  some  delegation  of  authority  from  the  plaintiffs 
to  the  agent  other  than  that  necessarily  implied  in  authorizing  him  to 
make  sales  as  a  salesman.  This  is  ground  to  be  cautiously  trodden. 
It  is  undeniable  that  an  agent  to  whom  merchandise  has  been  intrusted, 
with  authority  to  sell  and  deliver  it,  is  authorized  to  receive  the  price  ; 
otherwise  the  fraud  on  the  purchaser  would  run  into  cruelty-.  This 
agent's  powers  were  not  embraced  in  that  description.  He  was  em- 
ployed only  to  make  sales.  As  a  check,  his  employers  seem  to  have 
retained  in  their  own  hands  the  delivery  of  the  goods  and  the  appoint- 
ment of  the  terms  of  sale.  The  goods  in  question  were  so  delivered  as 
to  inform  the  defendants  sufficiently  of  the  character  of  the  agency. 
When  the  agreement  had  been  made  for  payment  in  six  months,  the 
contract  was  complete.  The  subsequent  acceptance  of  cash,  with  a 
deduction  of  five  per  centum  from  the  bill,  was  a  new  and  totally  un- 
authorized arrangement  on  the  agent's  part.  In  making  payment,  the 
defendants  took  the  risk  of  his  integrity,  and  they  must  bear  the  loss 
which  his  unfaithfulness  imposed.  Judgment  affirmed. 


SMITH   y.   McGUIRE. 

Exchequer.     1858. 
[3  H.  .j'  N.  554.] 

Declaration.  That,  by  charter-party  between  the  plaintiff  and 
the  defendant,  it  was  agreed  that  the  ship  "  Mahtoree,"  being  tight, 
staunch,  and  strong,  and  everj'  way  fitted,  would,  at  Limerick,  load 
a  full  cargo  of  oats  for  London,  after  discharging  her  timber  from 
Quebec,  at  the  rate  of  2s.  per  imperial  quarter,  with  8|  per  cent  pri- 
mage ;  the  said  ship  to  discharge  in  the  stream  in  London  ;  twelve  days 
for  loading  the  ship  in  Limerick,  and  the  usual  time  for  discharging 
in  London,  say  three  Mondays'  markets  ;  if  longer  detained,  to  pay 
b}'  the  affreighters  or  their  assigns  three  guineas  per  day  demurrage, 
&c. ;  ship  to  be  reported  at  Limerick  by  Mulloch  and  Sons  or  their 
agents  at  the  port  of  discharge.  And  the  defendant,  b^'  the  said 
charter-part}'  and  agreement,  agreed  to  load  the  said  ship  in  accord- 
ance with  the  terms  of  the  said  charter-party.  Breach :  that  though 
all  things  had  happened,  &c.,  and  all  time,  &c.,  had  elapsed,  and 
plaintiff  had  been  ready  and  willing,  &c.,  and  although  the  ship  was 
before    the    breach    tight,    stanch,    and    strong,    yet    the    defendant 


SECT.  III.]  SMITH    V.    McGUIHE.  325 

would  not  load  the  ship  ;  whereby,  &c.  There  was  also  a  count  for 
demurrrage. 

Pleas  to  the  first  count:  First,  denial  of  the  agreement;  secondly, 
that  the  ship  was  not  read}'  to  receive  the  cargo  at  the  time  and  place 
agreed  on  ;  third,  to  the  second  count,  never  indebted. 

The  defendant  took  out  a  summons  for  particulars  of  demand.  This 
was  opposed  by  the  plaintiff  before  a  judge  at  Chambers,  but  was  or- 
dered, it  being  alleged  that  it  was  intended  to  pay  mone^'  into  court. 
A  summons  to  plead  a  plea  of  pa3'ment  into  court  was  afterwards 
taken  out,  but  was  abandoned,  and  the  above  pleas  pleaded. 

The  particulars  of  demand  were  as  follows  :  The  plaintiff  seeks  to 
recover  £122  17s.  for  demurrage  for  detaining  the  ship  mentioned  in 
the  first  count  from  the  1st  January,  1858,  to  the  9th  Februar}-  in  the 
same  year.  And  the  plaintiff  also  claims  the  sum  of  £G8  8s.  9f?.  for 
loss  in  chartering  and  letting  the  ship  for  hire  during  the  time  it  was 
agreed  to  be  hired  b}'  the  defendant  for  a  less  sum  of  money,  namely, 
sixpence  for  each  quarter  of  oats  that  the  defendant  had  agreed  to  pay 
for  the  use  of  the  ship,  and  the  proportion  of  primage  thereon. 

At  the  trial,  before  Martin,  B.,  at  the  Middlesex  Sittings  in  last 
Easter  Term,  it  appeared  that  the  charter-party,  on  which  the  action 
was  brought,  bearing  date  the  3d  of  August,  1857,  was  signed  by 
Martin  M'Guire,  "  per  proc.  of  Thomas  M'Guire."  In  order  to  show 
that  Martin  M'Guire  was  the  agent  of  the  defendant,  it  was  proved 
that  the  defendant  had  carried  on  business  at  Limerick  as  a  corn  mer- 
chant till  about  three  years  previous  to  the  signing  of  this  charter, 
when  he  left  Limerick  and  went  to  London,  leaving  Martin  M'Guire, 
who  was  his  brother,  to  conduct  the  business,  which  consisted  in  bu}'- 
ing  up  corn  for  shipment.  It  was  proved  to  be  usual  and  prudent  to 
charter  vessels  beforehand  for  the  purpose  of  forwarding  corn,  and  that 
Martin  M'Guire  had  on  previous  occasions  hired  ships  and  signed 
charter-parties  "  per  proc."  for  the  defendant.  On  the  19th  of  Decem- 
ber, Messrs.  Mulloch,  who  acted  as  brokers  for  the  charterers,  wrote  to 
inform  the  plaintiff  that  the  charterer  could  not  load  the  vessel.  On 
the  1st  of  January,  1858,  the  vessel  was  ready  to  receive  her  cargo, 
of  which  due  notice  had  been  given  on  the  previous  day  to  Martin 
M'Guire.  The  ship  having  lain  twelve  days,  according  to  the  charter, 
notice  was  given  on  the  13th  of  January  that  she  was  on  demurrage 
pursuant  to  the  charter.  The  ship  lay  till  the  9th  of  February,  when 
she  was  chartered  by  several  persons,  of  whom  the  defendant  was  one, 
to  carry  a  cargo  of  oats  to  London  at  l.s.  Q,d.  a  quarter.  Martin 
M'Guire  signed  this  charter-party  for  the  defendant  "  per  proc."  The 
captain  stated  that  he  could  not  get  a  charter  sooner. 

The  defendant's  case  was  that  Martin  M'Guire  had  no  general  au- 
thority to  charter  vessels  for  him.  The  defendant  proved  that  on 
former  occasions  he  had  sent  special  instructions  to  Martin  M'Guire  as 
to  chartering  vessels,  and  that  he  never  authorized  him  to  sign  this 
particular  charter.     As  to  the  damages,  it  was  proved  that  the  plaintiflf 


326  SMITH   V.    MfGUIRE.  [CHAP.  II. 

might  have  got  a  cargo  at  an  earlier  period  if  the  captain  would  have 
allowed  the  broker,  Mulloch,  to  fix  a  cargo  on  the  26th  of  January. 
This  the  captain  refused  to  do  without  consulting  the  plaintiff. 

The  learned  judge  asked  the  jurj-  whether  Martin  M'Guire  was  per- 
mitted and  allowed  by  the  defendant  to  act  as  his  general  agent  at 
Limerick,  and  told  them  that  if  so  it  was  not  material  what  the  [irivate 
arrangement  between  them  was.  With  respect  to  the  damages,  his 
lordship  told  the  jury  that  the  claim  in  the  particulars  was  not  a  proper 
estimate  of  the  damage  ;  that  the  legal  damage  was  the  loss  which  had 
arisen  from  the  breach  of  the  contract ;  that  from  the  amount  of  freight 
which  the  ship  would  have  earned  if  the  charter-party  had  been  per- 
formed, there  ought  to  be  deducted  the  expenses  which  would  have 
been  incurred  in  earning  it,  and  also  any  profit  which  the  ship  earned 
between  the  expiration  of  the  lay  days  and  the  time  when  the  employ- 
ment of  the  ship  under  the  charter-party  would  have  ended.  The  jury 
fouad  a  verdict  for  the  plaintiff,  with  £191  bs.  damages,  being  the 
£122  17s.  for  demurrage  for  thirty-nine  days,  at  £3  3.s.  a  day,  and 
£68  8s.,  the  difference  between  the  freight  earned  under  the  second 
charter  and  that  which  would  have  been  receivable  under  the  first. 

Shee^  Serjt.,  in  the  following  term,  obtained  a  rule  nisi  for  a  new 
trial,  on  the  ground  that  the  learned  judge  had  misdirected  the  jury 
in  telling  them  that  they  were  at  liberty  to  infer,  from  the  fact  that 
Martin  M'Guire  had  for  a  long  time  signed  charter-parties  for  the  defend- 
ant, and  acted  as  his  agent,  that  he  had  authority  to  sign  this  charter- 
party  ;  or  why  the  damages  should  not  be  reduced  to  £68  8s.,  or  such 
other  sum  as  the  court  should  think  fit,  on  the  ground  that  the  plaintiff 
was  not  entitled  to  compensation  for  the  detention  of  the  ship  during 
the  lay  days,  or  for  the  interval  between  the  expiration  of  the  la}'  days 
and  the  9th  of  February. 

Prentice  and  Gordon  Allan  now  showed  cause. 

Shee.  Serjt.,  in  support  of  the  rule. 

Pollock,  C.  B.  With  respect  to  the  application  for  a  new  trial,  I 
am  of  opinion  that  the  direction  of  m}'  brother  Martin  was  perfectly 
correct.  I  think  that  questions  of  this  kind,  whether  arising  on  a 
charter-party,  a  bill  of  exchange,  or  an}-  other  commercial  instrument, 
or  on  a  verbal  conti-act,  should  be  decided  on  this  principle,  —  Has  the 
part}'  who  is  charged  with  liability  under  the  instrument  or  contract 
authorized  and  permitted  the  person  who  has  professed  to  act  as  his 
agent,  to  act  in  such  a  manner  and  to  such  an  extent  that,  from  what 
has  occurred  publicly,  the  public  in  general  would  have  a  right  to  rea- 
sonably conclude,  and  persons  dealing  with  him  would  naturally  draw 
the  inference,  that  he  was  a  general  agent?  If  so,  in  my  judgment, 
the  principal  is  bound,  although,  as  between  him  and  the  agent,  he 
takes  care  on  every  occasion  to  give  special  instructions  ;  and  I  think 
it  makes  no  difference  whatever,  whether  the  agent  acts  as  if  he  were 
the  principal,  or  professes  to  act  as  agent,  as  by  signing  "  A.  B.,  agent 
for  C.  D."     The  expression  "  per  procuration  "  does  not  always  neces 


SECT.  III.]  SMITH    V.    McGUIRE.  327 

saril}'  mean  that  the  act  is  done  under  procuration.  All  that  it  in 
realit}'  means  is  this :  "  I  am  an  agent  not  having  any  authority  of  my 
own."  Alexander  v.  M'Kenzie,  6  C.  B.  766,  was  chiefly  founded  on  tlie 
case  of  Attwood  v.  Munnings,  7  B.  &  C.  278,  where  the  agent  was  the 
defendant's  wife,  and  no  doubt  the  authority  was  quite  special.  It 
was  not  the  authority  which  a  tradesman  gives  to  his  shopman  to  sell 
goods  during  his  absence,  and  possibly  carry  on  his  trade  while  he  is 
abroad,  but  it  was  a  particular  authoritj'  to  perform  certain  acts  for 
certain  specified  objects  ;  and  the  court  (particularly  Holrovd,  J.)  ex- 
pressed itself  with  reference  to  that  circumstance.  It  frequently  hap- 
pens that,  where  a  judgment  is  delivered  either  b}-  the  court  or  a  judge, 
expressions  are  used  which  apply  to  a  particular  state  of  facts,  and,  in 
order  to  know  what  was  decided,  it  is  not  sufficient  merely  to  look  at 
the  judgment,  but  the  facts  and  circumstances  of  the  case  must  also  be 
regarded.  Now,  in  Attwood  c.  Munnings,  Holroyd,  J.,  said,  "  I  agree 
in  thinking  that  the  powers  in  question  did  not  authorize  this  accept- 
ance. The  word  '  procuration '  gave  due  notice  to  the  plaintiffs,  and 
they  were  bound  to  ascertain,  before  they  took  the  bill,  that  the  ac- 
ceptance was  agreeable  to  the  authority  given."  If  a  person  professes 
to  conve}-  an  estate  as  trustee,  the  party  taking  the  conveyance  from 
him  is  bound  to  ascertain  that  he  had  authority,  as  trustee,  to  convey 
it ;  but  tlie  same  principle  does  not  apply  to  commercial  dealings.  It 
would  be  most  inconvenient  if  a  person  could  not  go  into  a  shop  and 
purchase  an  article  without  first  asking  the  shopman  whether  he  has 
authority-  to  sell  it.  It  ma}'  be  tiiat  he  was  merely  emploj'ed  to  sweep 
the  shop  ;  but  it  would  be  absurd  to  apply  to  the  general  business  of 
life  the  doctrine  as  to  the  necessit}-  of  ascertaining  whether  an  agent  is 
acting  within  the  scope  of  his  authority,  —  indeed,  the  business  of  Lon- 
don could  not  go  on.  In  Attwood  v.  Munnings,  Littledale,  J.,  said  : 
"  I  am  of  the  same  opinion.  It  is  said  that  third  persons  are  not  bound 
to  inquire  into  the  making  of  a  bill ;  but  that  is  not  so  where  the  ac- 
ceptance appears  to  be  by  procuration."  Therefore,  if  a  person  for 
the  first  time  meets  with  a  bill  accepted  "  per  procuration,"  and  chooses 
to  take  it  without  making  any  inquiry,  the  loss  will  fall  on  him  if  the 
acceptor  had  no  authority.  But  the  practical  questions  are.  What  is 
the  extent  of  inquiry  which  ought  to  be  made?  and  what  answers  ma}- 
be  deemed  satisfactory,  so  as  to  protect  from  loss,  though  it  should 
turn  out  that  the  authority  has  been  exceeded?  It  is  true,  that  if  a  bill 
is  accepted  b}-  A.  on  behalf  of  B.,  and  it  is  known  that  B.  has  accepted 
bills  for  A.,  many  persons  would  take  it  for  granted  that  there  was 
neither  forgery  nor  fraud  in  the  matter,  and  that  the}'  might  safely 
take  it ;  but  if  the  law  is  complied  with,  and  an  inquiry  made,  to  what 
extent  is  it  to  go?  I  think  that  the  holder  is  not  bound  to  go  to  the 
acceptor  and  say,  "  Have  you  a  power  of  attorney,  or  other  authorit}, 
to  accept  this  bill  ? "  "When  he  has  ascertained  that  the  person  who 
has  accepted  the  bill  as  agent  or  by  procuration,  is  a  clerk  in  the  house, 
and,  in  the  course  of  his  employment,  has  from  day  to  day  accepted 


328  BRADY  V.    TODD.  [CHAP.  II. 

bills  of  that  sort,  that  is  enough,  and  he  need  not  ask  for  his  power  of 
attorney  or  authority,  nor  whether  that  particular  bill  is  on  account  of 
the  firm.  When  you  find  him  in  the  house  acting  and  recognized  as 
the  agent  of  the  firm,  you  need  not  make  any  further  inquiry  ;  and  yet 
it  may  turn  out  that  he  has  never  accepted  a  bill  without  a  schedule 
being  laid  before  him  in  the  morning  of  all  bills  that  were  to  be  ac- 
cepteil  by  him  on  that  day.  Persons  are  supposed  to  carry  on  their 
business  according  to  the  ordinary  arrangement  of  mankiml  generally. 
If  a  person  conducts  his  business,  as  the  defendant  did,  by  an  agent 
who  acts  in  his  absence,  in  my  judgment  it  is  a  question  for  the  jury 
whether,  according  to  the  ordinary  mode  in  which  business  is  carried 
on,  the  reasonable  conclusion  to  be  drawn  from  these  circumstances  is 
not  that  he  had  authority  as  a  general  agent ;  and,  if  so,  the  principal 
is  bound,  though  it  should  turn  out  that  he  had  limited  the  extent  of 
the  agency  by  certain  rules  and  regulations.  The  cases  cited  by  my 
brother  Shee  do  not  apply.  If  a  man,  by  his  conduct,  holds  out  another 
as  his  agent,  by  permitting  him  to  act  in  that  character  and  deal  with 
the  world  as  a  general  agent,  he  must  be  taken  to  be  the  general  agent 
of  the  person  for  whom  he  so  acts,  and  the  latter  is  bound,  though,  in 
a  particular  instance,  the  agent  may  have  exceeded  his  authority.  It  is 
so  even  in  the  case  of  a  special  agent ;  as,  for  instance,  if  a  man  sends 
his  servant  to  market  to  sell  goods,  or  a  horse,  for  a  certain  price,  and 
the  servant  sells  them  for  less,  the  master  is  bound  b}^  it.  There,  even 
the  violation  of  a  particular  authority  does  not  render  the  sale  null  and 
void.  Upon  these  grounds,  it  appears  to  me  that  the  direction  of  my 
brother  Martin  was  in  conformit}-  with  the  law,  and  that  the  verdict 
was  right ;  but,  unless  the  parties  come  to  some  arrangement,  there 
must  be  a  new  trial,  on  the  ground  that  the  damages  are  not  properly 
assessed.*  Rule  accordingly. 


BRADY  V.   TODD. 

Common  Pleas.     1861. 

[9  C.  B.  N.  s.  592.] 

This  was  an  action  for  the  breach  of  a  warranty  on  the  sale  of  a 
horse,  that  it  was  quiet  in  harness.  The  defendant  by  his  pleas  trav- 
ersed the  alleged  warranty,  and  averred  that  the  horse  at  the  time  of 
the  sale  was  quiet  in  harness. 

The  cause  was  tried  before  Cockburn,  C.J.,  at  the  last  Summer 
Assizes  at  Maidstone,  when  the  following  facts  appeared  in  evidence. 
The  defendant,  who  was  a  potato  salesman  in  London,  and  who  had  a 
farm  in  Essex  which  was  under  the  care  of  a  farm  bailiff  named  Greig, 

^  Concurring  opinions  by  Watson  and  Martin,  BB.,  are  omitted.  —  Ed. 


SECT.  III.]  BRADY    V.    TODD.  329 

had  in  the  month  of  February,  1860,  purchased  a  horse  which  he  sent 
to  the  farm  for  tlie  bailiff's  use.  Tlie  plaintiff,  an  attorney,  being 
desirous  of  purchasing  a  horse,  had  emplo3'ed  one  Hart,  a  veterinary 
surgeon,  to  look  out  for  one  for  liim.  Hart  inquired  of  Greig  whether 
the  defendant  would  sell  his  lioise  ;  and  (according  to  the  plaintiff's 
evidence)  after  some  correspondence,  the  plaintiff  went  to  the  farm 
to  see  the  horse,  and  in  the  course  of  a  conversation  with  Greig  on 
the  subject,  the  latter,  in  reply  to  the  plaintiff's  inquiry  whether  the 
horse  was  quiet  to  drive,  said,  "  He  is  perfectly  quiet  both  in  saddle 
and  harness.  He  is  an  honest  horse.  I  assure  you  he  is  as  quiet  as 
a  horse  can  be."  Upon  this  representation,  after  having  had  two 
trials,  the  plaintiff  bought  the  horse  for  thirty  guineas.  The  horse 
turned  out  to  be  not  quiet  in  harness,  but,  on  the  contrar}-,  extremely 
vicious  ;  whereupon  the  present  action  was  brought. 

The  defendant  swore  that  he  had  not  authorized  his  bailiff  to  war- 
rant the  horse  ;  and  Greig  also  swore  that  he  was  not  authorized  to 
give  any  warranty,  and  tliat  he  did  not  in  fact  give  an}'. 

It  appeared  that  Greig  had  on  two  or  three  occasions  sold  horses  for 
the  defendant,  but  whether  with  or  without  warranty  did  not  appear. 

On  the  part  of  the  defendant,  it  was  objected  that,  the  authorit}-  of 
Greig  to  warrant  being  negatived,  the  plaintiff  was  not  entitled  to  re- 
cover ;  for  that  there  could  be  no  implied  authority  to  warrant  unless 
perhaps  in  the  case  of  a  servant  of  a  horse-dealer. 

For  the  plaintiff  it  was  insisted  that  an  authority  to  an  agent  to  sell 
and  deliver  a  horse,  or  any  other  chattel,  imports  an  authority  in  him  to 
warrant ;  and  that  the  representations  of  Greig  in  law  amounted  to  a 
warranty. 

His  lordship  left  it  to  the  jury  to  say  whether  there  was  any  war- 
ranty, telling  them  that  it  was  not  necessarv  that  the  word  "  warrant" 
should  be  used,  and  whether  Greig  had  authority  in  point  of  fact  to 
warrant,  —  reserving  the  question  of  implied  authority  for  the  court. 

The  jury  having  returned  a  verdict  for  the  plaintiff,  — 

Montagu  Chambers.,  Q.  C,  in  Michaelmas  term  last,  obtained  a  rule 
nisi  to  enter  a  verdict  for  the  defendant,  or  a  nonsuit,  pursuant  to  leave 
reserved,  "on  the  ground  that  there  was  no  evidence  of  authority 
in  Greig  to  warrant,  and  that  without  express  authority  he  had  none, 
and  that  there  was  evidence  to  prove  that  Greig  had  no  such  au- 
thority ;  "  or  for  a  new  trial  ''on  the  ground  that  the  verdict  was 
against  the  evidence  on  the  question  of  unquietness  and  on  the  ques- 
tion of  warranty." 

Hawkins  and  Barnard  showed  cause. 

Montagu  Chambers,  Q.  C.,  and  Deiimmi,  in  support  of  the  rule. 

Cur.  adv.  vult. 

Erle,  C.  J.,  now  delivered  the  judgment  of  the  court :  — 

Upon  this  rule  to  set  aside  the  verdict  for  the  plaintiff  and  enter  it 
for  the  defendant  on  the  plea  denying  the  warranty  of  a  horse,  the 
question  has  been  whether  the  warranty  by  the  defendant  was  proved. 


330  BRADY  V.    TODD.  [CHAP.  U 

The  jury  have  found  that  Greig,  in  selling  the  horse  for  the  defendant, 
warranted  it  to  be  sound  and  quiet  in  harness.  The  defendant  stated, 
and  it  must  on  this  motion  be  taken  to  be  true,  that  he  did  not  give 
authority  to  Greig  to  give  any  warranty.  The  relevant  facts  are,  that 
the  plaintiff  applied  to  the  defendant,  who  is  not  a  dealer  in  horses,  but 
a  tradesman  with  a  farm,  to  sell  the  horse  ;  and  that  the  defendant  sent 
his  farm-bailiff,  Greig,  with  the  horse,  to  the  plaintiff,  and  authorized 
him  to  sell  it  for  thirtj*  guineas. 

Tlie  plaintiff  contends  that  an  authority  to  an  agent  to  sell  and  deliver 
imports  an  authority  to  him  to  warrant. 

The  subject  has  been  frequently  mentioned  by  judges  and  text- 
writers  ;  but  we  cannot  find  that  the  point  has  ever  been  decided.  It 
is  therefore  necessarj'  to  consider  it  on  principle. 

The  general  rule,  that  the  act  of  an  agent  does  not  bind  his  principal 
unless  it  was  within  the  authorit}'  given  to  him,  is  clear.  But  the 
plaintiff  contended  that  the  circumstances  created  an  autliority  in  the 
agent  to  warrant,  on  various  grounds,  —  among  others  he  referred  to 
cases  where  the  agent  has  bj'  law  a  general  authority  to  bind  his  prin- 
cipal, though  as  between  themselves  there  was  no  such  authorit}',  such 
as  partners,  masters  of  ships,  and  managers  of  trading  business  ;  and 
stress  was  laid  on  the  expressions  of  several  judges,  that  the  servant  of 
a  horse-dealer  or  liverj^-stable  keeper  can  bind  his  master  bj'  a  war- 
rant}', though,  as  between  themselves,  there  was  an  order  not  to  war- 
rant: see  Helyear  y.  Hawke,  5  Esp.  N.  P.  C.  72  ;  Alexanders.  Gibson, 
2  Campb.  555  ;  Fenn  v.  Harrison,  3  T.  R.  757.  We  understand  those 
judges  to  refer  to  a  general  agent  employed  for  a  principal  to  carry  on 
his  business,  that  is,  the  business  of  horse-dealing ;  in  which  case  there 
would  be  by  law  the  authorit}'  here  contended  for.  But  the  facts  of  the 
present  case  do  not  bring  the  defendant  within  this  rule,  as  he  was  not 
shown  to  carry  on  an}-  trade  of  dealing  in  horses. 

It  was  also  contended  that  a  special  agent,  without  any  express 
authority  in  fact,  might  have  an  authority  by  law  to  bind  his  principal ; 
as,  where  a  principal  holds  out  that  the  agent  has  such  authorit}',  and 
induces  a  party  to  deal  with  him  on  the  faith  that  it  is  so.  In  such  a 
case  the  principal  is  concluded  from  denying  this  authorit}',  as  against 
the  party  who  believed  what  was  held  out,  and  acted  on  it :  see  Picker- 
ing V.  Busk,  15  East,  38.  But  the  facts  do  not  bring  the  defendant 
within  this  rule. 

The  main  reliance  was  placed  on  the  argument  that  an  authorit}'  to 
sell  is  by  implication  an  authority  to  do  all  that  in  the  usual  course  of 
selling  is  required  to  complete  a  sale  ;  and  that  the  question  of  war- 
ranty is  in  the  usual  course  of  a  sale  required  to  be  answered,  and 
that  therefore  the  defendant  by  implication  gave  to  Greig  an  authority 
to  answer  that  question,  and  to  bind  him  by  his  answer.  It  was  a  part 
of  this  argument  that  an  agent  authorized  to  sell  and  deliver  a  horse 
is  held  out  to  the  buyer  as  having  authority  to  warrant.  But  on  this 
point  also  the  plaintiff  has  in  our  judgment  failed. 


SECT.  III.]  EDMUNDS    V.    BUSHELL    AND    JONES.  331 

We  are  aware  that  the  question  of  warranty  frequently  arises  upon 
the  sale  of  horses  ;  but  we  are  also  aware  that  sales  may  be  made  with- 
out any  warranty,  or  even  an  inquiry  about  warranty.  If  we  laid  down 
for  the  first  time  that  the  servant  of  a  private  owner  intrusted  to  sell 
and  deliver  a  horse  on  one  particular  occasion  is  tlierefore  by  law- 
authorized  to  bind  his  master  by  a  warranty,  we  should  establish  a  pre- 
cedent of  dangerous  consequence :  for  the  liability-  created  hy  a  war- 
ranty extending  to  unlvnown  as  well  as  known  defects  is  greater 
than  is  expected  b}-  persons  unexperienced  in  law  ;  and,  as  everything 
said  by  the  seller  in  the  bargaining  may  be  evidence  of  warranty  to  the 
etfect  of  what  he  said,  an  unguarded  conversation  with  an  illiterate 
man  sent  to  deliver  a  horse  may  be  found  to  have  created  a  liability 
which  would  be  a  surprise  equally  to  the  servant  and  the  master.  We 
therefore  hold  that  the  bu3er  taking  a  warranty  from  such  an  agent  as 
was  employed  in  this  case,  takes  it  at  the  risk  of  being  able  to  prove 
that  he  had  the  principal's  authority  ;  and,  if  there  was  no  authoritj'  in 
fact,  the  law  from  the  circumstances  does  not  in  our  opinion  create  it. 

When  the  facts  raise  the  question,  it  will  be  time  enough  to  decide 
the  liability  created  b^'  such  a  servant  as  a  foreman  alleged  to  be  a 
general  agent,  or  such  a  special  agent  as  a  person  intrusted  with  the 
sale  of  a  horse  in  a  fair  or  other  public  mart,  where  stranger  meets 
stranger,  and  the  usual  course  of  business  is  for  the  person  in  posses- 
sion of  the  horse,  and  appearing  to  be  the  owner,  to  have  all  the  powers 
of  an  owner  in  respect  of  the  sale.  The  authority  ma}-  under  such  cir- 
cumstances as  are  last  referred  to  be  implied,  though  the  circumstances 
of  the  present  case  do  not  create  the  same  inference.  It  is  unnecessary 
to  add,  that,  if  the  seller  should  repudiate  the  warranty  by  his  agent,  it 
follows  that  the  sale  would  be  void,  there  being  no  question  raised  upon 
this  point.  Judgment  /or  the  defendant.^ 


EDMUNDS   V.   BUSHELL   and  JONES. 

Queen's  Bench.     1865. 

[Z.  R.  1  Q.  B.  97.] 

This  was  an  action  commenced  under  the  Summary  Procedure 
on  Bills  of  Exchange  Act,  1855  (18  &  19  Vict.,  c.   67).     The  defend- 

1  Compare  Howard  v.  Sheward,  L.  R.  2  C.  P.  148  (1866). 

As  to  power  to  warrant  in  case  of  sale  of  personalty,  see  also  Dingle  v.  Hare,  7 
C.  B.  N.  s.  14.5  (1859);  Herring  v.  Skaggs.  62  Ala.  180  (1878)  ;  Perrine  v.  Cooley,  42 
K.  J.  L.  62.3  (1880);  Dayton  v.  HooglunH  .39  Ohio  St.  671  (1884);  Wait  v.  Borne, 
123  N.  Y.  592  (1890). 

As  to  power  to  warrant  in  case  of  sale  of  realty,  see  Peters  v.  Farnsworth,  15  Vt 
155  (1843);  Le  Roy  v.  Beard,  8  How.  451,  465-469  (1850);  Schultz  v.  Griffin,  121 
N.  Y.  294  (1890).  — Ed. 


332  EDMUNDS    V.    BUSHELL    AND    JONES.  [CHAP.  11. 

ant  Bushell  had  not  appeared,  and  judgment  had  been  signed  against 
him. 

The  declaration  was  against  Jones,  as  acceptor  of  a  bill  for  £184, 
dated  1st  of  February,  1865,  at  four  months  after  date,  drawn  by 
one  Britten  to  his  order,  and  indorsed  by  him  to  Taylor,  and  by  Taylor 
to  the  Birmingham  and  Midland  Banking  Company,  of  which  the  plain- 
tiff was  the  public  otticer. 

Plea,  that  the  defendant  Jones  did  not  accept  the  bill. 

The  cause  was  tried  at  the  last  Surrey  Summer  Assizes,  before 
Crompton,  J.,  and  the  following  facts  were  proved.  The  defendant 
Jones  was  a  wholesale  straw  hat  manufacturer,  who  carried  on  business 
at  Luton,  in  Bedfordshire,  and  also  until  May,  1865,  had  a  branch 
establishment  in  Milk  Street,  London.  The  business  in  London  was 
carried  on  under  the  name  of  •'  Bushell  &  Co."  By  an  agreement 
between  the  two  defendants  it  was  agreed  that  Bushell  should  enter 
Jones's  service  as  manager  of  the  establishment  in  London,  and  that 
he  should  be  paid  for  his  services  quarterly  an  amount  equal  to  one- 
half  of  the  net  profit  to  be  derived  from  the  business  carried  on  in 
London,  Jones  opened  an  account  in  the  name  of  "Bushell  &  Co.," 
at  the  London  and  County  Bank,  into  which  account  Bushell  was  to 
pay  all  sums  which  he  received  to  the  amount  of  £5.  He  had  authority 
from  Jones  to  draw  checks  in  the  name  of  Bushell  &  Co.  for  the 
purposes  of  the  business,  but  he  had  no  authorit}*  to  draw  or  accept 
bills.  In  Jul}',  1864,  Bushell  accepted  a  bill  in  the  name  of  Bushell 
&  Co.,  dated  9th  of  April,  1864,  drawn  upon  Bushell  &  Co.,  and  made 
pa3'able  at  the  London  and  County  Bank.  This  bill  was  paid  at 
maturit}',  and  Jones  did  not  know  of  the  transaction  until  he  saw  the 
amount  entered  in  his  pass-book  as  a  payment.  Jones  then  told 
Bushell  he  had  no  authority  to  accept  bills,  and  forbade  him  to  do  so. 
Bushell,  however,  accepted  three  other  bills,  dated  in  November  and 
December,  1864,  which  fell  due  in  February-  and  March  following,  and 
were  paid  at  the  London  and  County  Bank,  and  charged  to  Jones. 
These  four  bills  were  given  to  persons  with  whom  "  Bushell  &  Co." 
had  dealings  in  the  way  of  business.  In  consequence  of  these  irregu- 
larities Bushell  was  dismissed  in  May,  1865. 

The  acceptance  to  the  bill  sued  upon  was  in  the  style  of  •'  Bushell  & 
Co.,"  and  was  proved  to  be  in  the  handwriting  of  Bushell.  The  bill 
was  taken  by  the  banking  company  from  Taylor,  a  customer,  for  a 
good  consideration,  the  company  knowing  nothing  of  Bushell  &  Co. 

The  jury  found  a  verdict  for  the  plaintiff,  for  £185  lis.,  leave  being 
reserved  to  move  to  enter  a  verdict  for  the  defendant,  if  the  Court 
should  be  of  opinion  that  there  was  no  reasonable  evidence  of  the 
defendant  Jones's  liabilit}'. 

Joseph  JBroioi^  Q.  C,  moved  accordingl}'.  There  is  no  evidence 
to  make  Jones  liable.  In  order  to  make  him  liable,  either  he  must 
have  held  himself  out  to  the  company  as  a  partner,  or  have  publicly 
held  himself  out  as  connected   with  the  firm;    Jones's  name  did   not 


SECT,  til]  EDMUNDS   V.    BUSHELL    AND   JONES.  333 

appear  on  the  bill,  nor  was  it  shown  that  the  company  were  aware  of 
his  connection  with  the  business,  for  he  had  never  had  a  transaction 
with  them.  In  Young  y.  Axtell,  cited  in  Waugh  v.  Carver,  1  8m.  L. 
C.  734,  it  is  said  if  a  person  sutters  his  name  to  be  used  in  a  business, 
and  holds  himself  out  as  a  partner,  he  will  be  certainly  liable,  though 
a  creditor  of  the  firm  does  not  at  the  time  of  dealing  know  that  he  was 
a  partner,  or  that  his  name  was  used.  But  this  is  questioned  in  the 
note,^  and  Dickenson  v.  Valpy,  10  B.  &  C.  140,  is  cited  to  show  that 
a  nominal  partner  to  be  made  liable  must  have  held  himself  out,  not 
to  the  world,  for  that  is  a  loose  expression,  but  to  the  creditor.  The 
banking  company  did  not  take  the  bill  on  the  faith  of  Jones's  apparent 
responsibility.  He  is  not  liable  unless  it  can  be  shown  that  he  repre- 
sented himself  to  the  banking  company  as  a  partner.  In  Carter  v. 
Whalley,  1  B.  &  Ad.  11,  a  person  was  held  not  to  be  liable  as  a 
partner  unless  the  creditor  had  dealt  with  him  in  the  character  of  a 
partner,  or  he  had  held  himself  out  so  publicly  to  be  one  as  that  the 
creditor  must  have  known  of  it. 

[CocKBURN,  C.  J.  This  is  not  a  case  of  nominal  partners :  here 
the  actual  owner  of  the  business  enii)loys  Bushell  in  the  business  as 
his  manager  and  ostensible  principal :  it  is  a  question  of  agency.] 

Jones  never  held  Bushell  out  as  a  partner  to  the  banking  company, 
and  is  not  bound  by  his  acts  ;  he  has  never  in  an}'  way  deceived  the 
company. 

CocKBURN,  C.  J.  In  this  case  there  ought  to  be  no  rule.  The 
defendant  carried  on  business  both  at  Luton  and  in  London.  In 
London  the  business  was  carried  on  in  the  name  of  Bushell  &  Co., 
Jones  at  the  same  time  employing  Bushell  as  his  manager;  Bushell 
was  therefore  the  agent  of  the  defendant  Jones,  and  Jones  was  the 
principal,  but  he  held  out  Bushell  as  the  principal  and  owner  of  the 
business.  That  being  so,  the  case  falls  within  the  well-established 
principle,  that  if  a  person  employs  another  as  an  agent  in  a  character 
which  involves  a  particular  authority,  he  cannot  by  a  secret  reserva- 
tion divest  him  of  that  authority.  It  is  clear,  therefore,  that  Bushell 
must  be  taken  to  have  had  authority  to  do  whatever  was  necessary  as 
incidental  to  carrying  on  the  business ;  and  to  draw  and  accept  bills 
of  exchange  is  incidental  to  it,  and  Bushell  cannot  be  divested  of  the 
apparent  authority  as  against  third  persons  by  a  secret  reservation. 
1  think  Jones  was  properl}'  held  to  be  liable  on  the  bill. 

Mellor,  J.  I  am  of  the  same  opinion.  The  case  differs  from 
those  in  which  the  question  turns  upon  the  fact  whether  A  or  B  is  a 
partner  in  the  same  firm.  Here  Jones  puts  forward  Bushell  as  a 
principal,  and  it  is  in  the  name  of  Bushell  &  Co.  that  the  business  is 
carried  on.  It  is  not  a  question  of  partnership,  but  whether  Bushell, 
who  has  been  held  out  to  everybody  as  a  partner,  has  authority  to 
bind  Jones.     It  would  be  very  dangerous  to  hold  that  a  person   who 

1  I  Sm.  L.  C.  747.  — Rep. 


334  BAINES    I'.    EWING.  [CHAP.  IT. 

allows  an  agent  to  act  as  a  principal  in  caiT3-ing  on  a  business,  and 
invests  him  with  an  apparent  authority  to  enter  into  contracts  inciden- 
tal to  it,  could  limit  that  authority  by  a  secret  reservation.  I  see  no 
reason  for  disturbing  the  verdict. 

Shee,  J.  The  leave  reserved  in  this  case  was  to  enter  a  verdict  for 
the  defendant,  if  the  Court  should  be  of  opinion  that  there  was  no 
reasonable  evidence  on  which  the  jury  could  find  for  the  plaintiff,  and, 
in  my  opinion,  there  was  reasonable  evidence  to  sustain  the  verdict. 
I  think  we  are  not  in  any  danger  of  disturbing  the  cases  which  relate 
to  the  law  of  partnership.  In  this  case  it  appears  that  Jones  cairied 
on  two  distinct  businesses.  The  business  in  London  was  carried  on 
for  his  benefit,  and  with  his  sanction,  in  the  name  of  Bushell  &  Co., 
and  was  a  business  in  which  a  partner  would  be  presumed  to  have 
authority  to  accept  bills  ;  and  the  natural  inference,  when  a  person 
allows  an  agent  to  carry  on  a  particular  business  as  an  ostensible  prin- 
cipal, is  that  he  clothes  him  with  every  authority  incidental  to  a  prin- 
cipal in  the  business.  liule  refused} 


BAINES   V.   EWING. 

Exchequer.     1866. 
[AH.Sr  C.  511.2] 

Declaration  on  a  policy  of  insurance  on  the  ship  "  City  of  Bris- 
bane." The  declaration  was  in  the  ordinary  form,  and  averred  that 
the  defendant  subscribed  the  policy  for  the  sura  of  £150. 

Plea.  That  the  defendant  did  not  subscribe  the  policy,  and  did  not 
become  an  insurer  as  alleged.     Issue  thereon. 

At  the  trial,  before  Lush,  J.,  at  the  last  Liverpool  Spring  Assizes, 
the  following  facts  were  admitted  by  counsel.  In  July,  1861,  the  de- 
fendant, who  resided  at  Richmond,  near  London,  authoi'ized  Messrs. 
North,  Ewing  &  Co.,  insurance  brokers  at  Liverpool,  to  underwrite 
policies  on  marine  risks  in  his  name,  to  the  extent  specified  in  the  writ- 
ten authority  sent  to  them,  which  was  as  follows  :  — 

"  Messrs.  North,  Ewing,  &  Company. 
"  Gentlemen, 

"I  hereby  authorize  3'ou.  in  my  name,  on  my  behalf,  to  under- 
write policies  of  insurance  against  marine  risks  not  exceeding  £100  by 
any  one  vessel ;  and  I  authorize  you  to  hold  and  retain  all  premiums 
received  for  me  as  a  fund  to  answer  losses,  it  being  understood  that  all 
accounts  between  us  are  to  be  settled  according  to  the  usual  course  of 
transacting  business  between  an  underwriter  and  a  broker,  as  customary 

1  See  Tn  re  Adansonia  Fibre  Co.,  L.  R.  9  Ch.  635,  647,  648  (1874).  —  Ed. 

2  8.  c.  L.  R.  1  Ex.  320.  —Ed. 


SECT.  III.]  BAINES   V.    EWING.  335 

in  Liverpool ;  separate  deposit  account  to  l)e  kept  at  the  bank,  and  ac- 
counts to  be  rendered  half  yearly. 

"  I  remain,  &c., 

"  WlI.lJAM    EWING. 

"  Riclimond,  26th  July,  1861." 

At  Liverpool  there  is  an  Underwriters'  Association,  and  when  a  per- 
son desires  to  become  an  underwriter  he  authorizes  a  broker  to  under- 
write for  him.  The  broker  submits  the  name  of  his  principal  to  the 
Underwriters'  Association,  and,  if  no  objection  is  made  to  it,  the  name 
is  entered  in  their  book,  and  then  tlie  broker  underwrites  in  the  name 
of  his  principal.  From  the  time  that  the  defendant  gave  to  Messrs. 
North,  Ewing  &  Co.  the  above  authority  to  underwrite  for  him,  they 
signed  policies  in  his  name.  It  is  well  known  in  Liverpool  that  in 
almost  all  cases,  if  not  in  all,  a  limit  is  put  to  the  amount  for  which 
the  broker  can  sign  his  principal's  name.  The  principal  allows  the 
broker  to  sign  for  a  fixed  sum  on  each  of  any  number  of  ships,  and  on 
an3-  terras  he  pleases  ;  but  when  the  principal's  name  is  given  to  the 
Association  that  limit  is  not  mentioned,  and  it  is  in  fact  known  only 
to  the  broker  and  his  principal.  The  plaintiffs  did  not  know  of  the 
limit  imposed  bj-  the  defendant,  nor  that  it  had  in  this  case  been  ex- 
ceeded ;  neither  was  the  defendant  aware  until  afterwards  that  the  limit 
had  been  exceeded,  nor  did  he  subsequently-  ratifj'  the  act  of  his  broker. 
On  the  2d  October,  1862,  and  whilst  the  above  authority  was  in  force, 
the  policy  on  which  this  action  was  brought  was  underwritten  by 
Messrs.  North,  Ewing  &  Co.  in  tlie  defendant's  name  for  £150.  The 
ship  was  totally  lost.  'By  consent  a  verdict  was  entered  for  the  plain- 
tiffs for  £150,  leave  being  reserved  to  the  defendant  to  enter  a  nonsuit 
or  a  verdict  for  him,  or  to  reduce  the  damages  to  £100. 

EdtvardtTarnes,  in  last  Easter  Term,  obtained  a  rule  nisi  accordingl}', 
on  tlie  ground  that  there  was  no  evidence  of  authority  given  b}-  the 
defendant  to  underwrite  the  policy" ;    against  which 

Brett  and  Quain  now  showed  cause.  First,  the  defendant  is  liable 
on  this  policj'  to  the  extent  of  £150.  He  held  out  the  brokers  as  his 
agents,  to  underwrite  for  him  ;  and  although  the_y  were  not  general 
agents  for  all  purposes,  they  were  for  the  particular  purpose  of  signing 
policies  in  his  name.  A  general  agent  is  a  person  whom  a  man  puts  in 
his  place  to  transact  all  his  business  of  a  particular  kind.  Smith's  Mer- 
cantile Law,  p.  128,  7th  ed.  In  the  case  of  a  general  agent  "  the  princi- 
pal will  be  bound  by  the  acts  of  his  agent  within  the  scope  of  the  genei-al 
authority  conferred  on  him,  although  he  violates  bv  those  acts  his  pri- 
vate instructions  and  directions,  which  are  given  to  him  bv  the  principal, 
limiting,  qualifying,  suspending,  or  prohibiting  the  exercise  of  such  au- 
thority under  particular  circumstances."  Story  on  Agenc}",  §  126,  p.  151, 
4th  ed.  The  business  of  an  underwriter  could  not  be  carried  on  if  the 
assured  was  bound  on  every  occasion  to  inquire  into  the  extent  of  the 
agent's  autiiority.  Of  whom  is  he  to  inquire?  If  the  agent  says  that 
he  is  authorized  to  underwrite  for  £150,  must  inquiry  be  made  of  the 


336  BAINES   V.    EWING.  [CHAP.  II. 

principal  in  London  wliether  tliat  is  true?  The  restrictions  to  which 
the  agent  is  subject,  even  where  he  exceeds  his  authority-,  do  not  avoid 
the  policj'  unless  the  assured  had  knowledge  of  them.  If  the  restric- 
tions are  private  and  confidential,  they  are,  as  against  third  persons, 
inoperative  and  void,  unless  disclosed.  Duer  on  Marine  Insurance, 
§§  49,  50,  p.  346,  note  {h),  p.  347.  Then  the  question  is,  What  are  the 
usual  incidents  of  an  agency  to  underwrite  in  the  principal's  name? 
One  of  them  is  to  underwrite  for  different  amounts  according  to  the 
agent's  discretion.  Is  tliat  altered  by  the  fact  that  it  is  well  known  in 
Liverpool  that  in  almost  all  cases  the  agent's  authority  is  limited,  but 
the  limit  is  not  made  known  to  the  public?  The  authority  of  a  general 
agent  to  perform  all  things  usual  in  the  line  of  business  in  which  he  is 
employed  cannot  be  limited  by  any  private  order  or  direction  not  known 
to  the  party  dealing  with  him.  Smith's  Mercantile  Law,  p.  128,  7th  ed. 
In  Story  on  Agency,  §  127,  p.  153,  4th  ed.,  it  is  said  that,  ''  if  a  per- 
son is  lield  out  to  third  persons,  or  to  the  public  at  large,  by  his  prin- 
cipal, as  having  a  general  authority  to  act  for  and  to  bind  him  in  a 
particular  business  or  employment,  it  would  be  the  height  of  injustice, 
and  lead  to  the  grossest  frauds,  to  allow  him  to  set  up  his  own  secret 
and  private  instructions  to  the  agent,  limiting  that  authority."  If  the 
limit  is  not  disclosed,  it  is  the  same  as  if  there  was  none.  Where  a 
factor  has  private  instructions  from  his  principal  not  to  sell  under  a 
certain  sum,  and  he  sells  for  less,  the  principal  is  bound.  This  case  is 
within  the  law,  as  laid  down  in  Stor^'  on  Agenc}',  §  131,  p.  185,  4th  ed. 

Secondly,  the  defendant  is  liable,  at  all  events,  to  the  extent  of  £100, 
because  he  has  authorized  his  agents  to  underwrite  for  that  amount. 
"  Where  a  man  does  less  than  the  authorit}'  committed  to  him,  the  act 
is  void  ;  but  where  he  does  that  which  he  is  authorized  to  do  and  some- 
thing more,  it  is  good  for  that  which  is  warranted  and  void  for  the 
rest."  Co.  Litt.  258  a.  [Bramv^ell,  B.  I  can  well  understand  that  if 
a  man  is  authorized  to  make  a  feoffment  of  one  acre  and  he  makes 
a  feoffment  of  two,  it  is  good  for  the  one  and  void  as  to  the  other ; 
but  a  contract  is  an  entire  thing  and  indivisble.  Martin,  B.  If  the 
defendant  is  bound  at  all,  he  was  bound  when  his  agent  signed  the 
policy.] 

Edward  James,  Mellish,  and  Holland  appeared  to  support  the  rule, 
but  were  not  called  upon  to  argue. 

Martin,  B.  As  to  the  last  point,  I  think  it  scarcel}^  arguable.  This 
is  an  entire  and  indivisible  contract  to  pay  ^150,  and  it  is  not  valid 
because  the  broker  had  authority'  only  to  make  a  contract  to  the  extent 
of  £100. 

With  respect  to  the  other  point,  it  seems  to  me  clear.  A  contract 
was  made  b}'  an  agent  on  behalf  of  his  principal ;  and  an  action  having 
been  brought  against  the  principal  upon  that  contract,  it  became  neces- 
sary for  the  plaintiff  to  prove  the  agent's  authorit}'  to  make  it.  Ac- 
cordingly' he  produced  and  proved  this  document :  "I  hereb}'  authorize 
you,  in   my  name,  on  my  behalf,  to  underwrite  policies  of  insurance 


SECT.  III.]  BAINES    V.    EWING.  337 

against  marine  risks  not  exceeding  £100  by  any  one  vessel."  That  au- 
thority was  produced  to  prove  a  declaration  which  alleges  that  a  policy 
was  subscribed  b^'  the  defendant  for  £150.  If  it  had  stood  there,  it 
would  be  obvious  that  the  agent  made  a  contract  which  he  had  no  au- 
thority to  make.  But  then  it  is  said  that  there  -is  a  course  of  business 
in  Liverpool  by  which  brokers  acting  on  behalf  of  underwriters  make 
valid  contracts  in  the  names  of  their  principals.  But  it  is  well  known 
that  a  limit  is  placed  upon  the  amount  for  which  the  broker  can  sign 
his  principal's  name.  In  this  case  the  broker  could  sign  for  £100  on 
any  number  of  ships.  When  the  name  of  the  underwriter  is  given  to 
the  Underwriters'  Association  the  limit  is  not  disclosed,  and  it  is  known 
only  to  the  broker  and  his  principal.  Now,  the  plaintiff  having  pro- 
duced the  written  authority,  by  which  the  contract  contained  in  this 
policy  was  certainly  not  authorized,  it  is  contended  that,  by  reason  of 
the  course  of  business  in  Liverpool,  there  was  virtually  an  authority  to 
underwrite  for  £150,  because  it  is  well  known  that  there  is  some  limit, 
and  therefore  everj'  man  who  makes  a  contract  of  this  kind  has  notice 
that  he  is  dealing  with  an  agent  who  has  only  a  limited  authority.  But 
when  a  principal  has  put  a  limit  to  his  agent's  authority,  and  a  person 
contracts  with  knowledge  that  there  is  always  some  limit,  how  can  it 
be  said  that  the  agent  may  bind  his  principal  to  a  greater  extent  than 
the  limit?  This  view  is  in  accordance  with  common  sense,  and  no  re- 
finements of  text  writers  can  alter  it. 

Bramwell,  B.  I  am  of  the  same  opinion.  The  actual  authorit}' 
given  to  the  agent  cannot  be  relied  on,  and  therefore  the  counsel  for 
the  plaintiff  are  obliged  to  relv  upon  a  supposed  authoritv  which  the 
agent  had  not,  that  is  to  sa}-,  that  the  principal  held  out  the  broker  as 
his  agent,  having  authority  to  sign  policies  in  his  name  for  more  than 
£100.  But  that  is  not  true.  The  utmost  that  can  be  said  is  that  the 
principal  held  out  the  broker  as  having  that  authority  which  a  Liverpool 
broker  ordinaril}-  has.  It  seems  to  me  almost  a  matter  of  logical  dem- 
onstration that  the  plaintiffs  proposition  is  erroneous.  "What  would 
have  been  the  case  if  there  had  been  no  limitation  upon  Liverpool 
brokers  in  general  it  is  unnecessar}"  to  sa}',  and  it  might  give  rise  to  a 
question  of  some  difficulty. 

Reference  has  been  made  to  Story  on  Agency,  §  131,  where  it  is  said 
that  the  distinction  between  general  agents  and  limited  or  special  agents 
may  be  illustrated  by  the  case  of  a  factor  who  has  a  general  authority 
to  sell ;  and  if  in  selling  he  violates  his  private  instructions,  the  princi- 
pal is  nevertheless  bound.  Amongst  others,  the  case  of  Fenn  v.  Har- 
rison, 3  T.  R.  757,  762,  is  cited,  but  it  does  not  warrant  the  proposition. 
I  can  well  understand  that,  if  a  factor  is  simply  employed  to  sell,  he 
has  a  general  authority  to  sell  in  the  usual  way  ;  but  I  doubt  whether 
when  a  factor  is  authorized  to  sell  at  a  particular  price  he  can  bind  his 
principal  by  a  sale  at  a  less  price.  I  do  not  think  that  any  of  the  authori- 
ties referred  to  by  Mr.  Justice  Story  warrant  such  an  inference. 

Again,  we  are  asked  how  is  the  business  of  an  underwriter  to  be 

22 


338  BAINES   V.    EWING.  [CHAP.  II. 

carried  on  if  the  assured  is  bound  on  ever}'  occasion  to  inquire  into  the 
extent  of  the  broker's  authority.  The  answer  is  twofold  :  first,  the  busi- 
ness is  carried  on  ;  and,  secondly,  it  will  and  ought  to  be  carried  on  bj' 
the  assured  trusting  to  the  honesty  of  the  broker  that  he  is  not  telling 
an  untruth  when  lie  assumes  not  to  exceed  his  autliority.  Generally- 
speaking,  the  trust  is  well  founded  ;  for  although  brokers  sometimes 
pledge  the  credit  of  their  principals  beyond  what  is  right,  they  do  not 
usually  exercise  an  authority  which  the}-  do  not  possess. 

CiiANNELL,  B.  I  am  of  opinion  that  so  much  of  the  rule  as  seeks 
to  set  aside  the  verdict  for  the  plaintiff  and  enter  a  nonsuit  ought  to  be 
made  absolute.  With  respect  to  the  other  branch  of  the  rule,  which 
seeks  to  reduce  the  damages,  it  only  becomes  important  in  one  point  of 
view,  for  if  the  defendant  is  right  in  his  contention  the  plaintiflfs  cannot 
sever  the  amount  and  maintain  their  verdict  with  £100  damages. 

The  question  is,  therefore,  whether  the  defendant  is  liable  on  the 
polic}'  declared  on.  Now,  the  express  authority  given  by  the  plaintiff 
not  only  does  not  establish  a  liability,  but  negatives  it.  But  then  it  is 
said  that  we  ought  not  to  look  at  that  authority  simpUciter,  but  in  con- 
nection with  the  fact  that  the  limit  is  never  disclosed  ;  and  it  is  con- 
tended the  authorit}-  given  to  a  general  agent  cannot  be  limited  bj- 
secret  instructions  from  his  principal  inconsistent  with  that  authority. 
I  do  not  wish  to  interfere  with  that  as  a  general  rule  of  law  ;  nor  do  I 
think  that  in  order  to  appl}'  that  rule  the  agent  must  be  a  general  agent 
for  all  purposes.  Perhaps  the  expression  is  incorrect,  but  there  may 
be  a  special  general  agent ;  for  instance,  an  agent  to  sign  bills  of  ex- 
change or  subscribe  policies  of  insurance  ;  and  although  his  authority 
does  not  extend  to  other  matters,  it  ma}-  be  general  as  to  the  particular 
business  in  which  he  is  employed.  But  looking  at  the  facts  of  this  case, 
and  the  admission  that  it  is  well  known  in  Liverpool  that  there  is  a  limit 
to  a  broker's  authority  to  underwrite  policies,  although  the  precise 
amount  is  not  disclosed  (which  I  think  makes  no  difference),  I  am  of 
opinion  that  the  broker  was  not  in  the  situation  of  a  general  agent  so 
as  to  make  applicable  the  rule  of  law  relied  on  in  the  argument  for  the 
plaintiffs. 

For  these  reasons  I  agree  that  the  rule  to  enter  a  nonsuit  ought  to  be 
absolute.  Hule  absolute  for  a  nonsuit} 

1  See  Thomas  r.  Joslin,  30  Miun.  388  (1883).  Compare  Brocklesby  v.  Temperance 
Building  Society,  [1895]  A.  C.  173.  — Ed. 


SECT.  Ill]  WARD    V.    SMITH.  339 


WARD   V.   SMITH. 
Supreme  Court  of  the  United  States.     1868. 

[7    IFa//.  447.] 

Error  to  the  Circuit  Court  of  Maryland. 

In  August,  1860,  William  Ward,  a  resident  of  Alexandria  in 
Virginia,  purchased  of  one  Smith,  of  the  same  place,  then  administrator 
of  the  estate  of  Aaron  Leggett,  deceased,  certain  real  property  situated 
in  the  State  of  Virginia,  and  gave  him  for  the  consideration  monej' 
three  joint  and  several  bonds  of  himself  and  Francis  Ward.  These 
bonds,  each  of  which  was  for  a  sum  exceeding  four  thousand  dollars, 
bore  date  of  the  22d  of  that  month,  payable,  with  interest,  in  six, 
twelve,  and  eighteen  months  after  date,  "■  at  the  office  of  discount  and 
deposit  of  the  Farmers'  Bank  of  Virginia,  at  Alexandria." 

In  Februar}',  1861,  the  first  bond  was  deposited  at  the  bank  desig- 
nated for  collection,  ^t  the  time  there  was  indorsed  upon  it  a  credit 
of  over  five  hundred  dollars  ;  and  it  was  admitted  that,  subsequentl}', 
the  further  sum  of  twenty-five  hundred  dollars  was  received  by  Smith, 
and  that  the  amount  of  certain  taxes  on  the  estate  purchased,  paid  by 
the  Wards,  was  to  be  deducted. 

In  May,  1861,  Smith  left  Alexandria,  where  he  then  resided,  and 
went  to  Prince  William  County,  Virginia,  and  remained  within  the 
Confederate  military  lines  during  the  continuance  of  the  civil  war. 
He  took  with  him  the  other  two  bonds,  which  were  never  deposited  at 
the  Farmers'  Bank  for  collection.  Whilst  he  was  thus  absent  from 
Alexandria,  William  Ward  deposited  with  the  bank  to  his  credit,  at 
different  times  between  June,  1861,  and  April,  1862,  various  sums,  in 
notes  of  different  banks  of  Virginia,  the  nominal  amount  of  which 
exceeded  by  several  thousand  dollars  the  balance  due  on  the  first  bond. 
These  notes  were  at  a  discount  at  the  times  the}-  were  deposited,  vary- 
ing from  eleven  to  twenty-three  per  cent.  The  cashier  of  the  bank 
indorsed  the  several  sums  thus  received  as  credits  on  the  first  bond  ; 
but  he  testified  that  he  made  the  indorsement  without  the  knowledge  or 
request  of  Smith.  It  was  not  until  June,  1865,  that  Smith  was  informed 
of  the  deposits  to  his  credit,  and  he  at  once  refused  to  sanction  the 
transaction  and  accept  the  deposits,  and  gave  notice  to  the  cashier  of 
the  bank  and  to  the  Wards,  ol^ligees  in  the  bond,  of  his  refusal.  The 
cashier  thereupon  erased  the  indorsements  made  by  him  on  the  bond. 

Smith  now  brought  the  present  action  upon  the  three  bonds  to 
recover  their  entire  amount,  less  the  sum  credited  on  the  first  bond 
when  it  was  deposited,  the  sum  of  twent3'-five  hundred  dollars  subse- 
quenth'  received  by  the  plaintiff,  and  the  amount  of  the  taxes  paid  by 
the  defendants  on  the  estate  purchased. 

The  court  below  instructed  the  jury  that,  if  they  found  that  the 
defendants  executed  the  bonds,   the  plaintiff  was  entitled  to  recover 


340  WARD    V.    SMITH.  [CIIAP.  II. 

their  amounts,  less  the  credit  indorsed  on  the  first  one,  and  the  taxes 
paid  b}'  defendants,  and  the  subsequent  payment  to  the  plaintiff,  with 
interest  on  the  same.  The  plaintiff  recovered,  and  the  defendants 
brought  the  case  to  this  court  b}-  writ  of  error. 

Messrs.  Drown  and  F.    \V.  Brune,  for  the  plaintiffs  in  error. 

Messrs.  M.  J.  and  J,  L.  Droit.,  contra. 

Mk.  Justice  P'ield,  after  stating  the  case,  delivered  the  opinion  of 
the  court,  as  follows. 

The  defendants  claim  that  they  are  entitled  to  have  the  amounts 
the}'  deposited  at  the  Farmers'  Bank  in  Alexandria  credited  to  them 
on  the  bonds  in  suit,  and  allowed  as  a  set-off  to  the  demand  of  the 
plaintiff.  The}'  make  this  claim  upon  these  grounds :  that  by  the  pro- 
vision in  the  bonds,  making  them  payable  at  the  Farmers'  Bank,  the 
parties  contracted  that  the  bonds  should  be  deposited  there  for  collec- 
tion either  before  or  at  maturity' ;  that  the  bank  was  thereby  constituted, 
whether  the  instruments  were  or  were  not  deposited  with  it,  the  agent 
of  the  plaintiff  for  their  collectiooi^i*.  and  that  as  such  agent  it  could 
receive  in  payment,  equally  with  gold  and  silver,  the  notes  of  any 
banks,  whether  circulating  at  par  or  below  par,  and  discharge  the 
obligors. 

We  do  not  state  these  grounds  in  the  precise  language  of  counsel, 
but  we  state  them  substantially. 

It  is  undoubtedly  true  that  the  designation  of  the  place  of  payment 
in  the  bonds  imported  a  stipulation  that  their  holder  should  have  them 
at  the  bank,  when  due,  to  receive  payment,  and  that  the  obligors 
would  produce  there  the  funds  to  pay  them.  It  was  inserted  for  the 
mutual  convenience  of  the  parties.  And  it  is  the  general  usage  in 
such  cases  for  the  holder  of  the  instrument  to  lodge  it  with  the  bank 
for  collection,  and  the  part}'  bound  for  its  payment  can  call  there  and 
take  it  up.  If  the  instrument  be  not  there  lodged,  and  the  obligor 
is  there  at  its  maturity  with  the  necessary'  funds  to  pa}'  it,  he  so  far 
satisfies  the  contract  that  he  cannot  be  made  responsible  for  any  future 
damages,  either  as  costs  of  suit  or  interest,  for  delay.  When  the 
instrument  is  lodged  with  the  bank  for  collection,  the  bank  becomes 
the  agent  of  the  payee  or  obligee  to  receive  payment.  The  agency 
extends  no  further,  and  without  special  authority  an  agent  can  only 
receive  payment  of  the  debt  due  his  principal  in  the  legal  currency  of 
the  country,  or  in  bills  which  pass  as  money  at  their  par  value  by 
the  common  consent  of  the  community.  In  the  case  at  bar  only  one 
bond  was  deposited  with  the  Farmers'  Bank.  That  institution  there- 
fore, was  only  agent  of  the  payee  for  its  collection.  It  had  no  author- 
ity to  receive  payment  of  the  other  bonds  for  him  or  on  his  account. 
Whatever  it  may  have  received  from  the  obligors  to  be  applied  on  the 
other  bonds,  it  received  as  their  agent,  not  as  the  agent  of  the  obligee. 
If  the  notes  have  depreciated  since  in  its  possession,  the  loss  must  be 
adjusted  between  the  bank  and  the  depositors  ;  it  cannot  fall  upon  the 
holder  of  the  bonds. 


SECT.  III.J  WAKD   V.    SMITH.  341 

But  even  as  agent  of  the  payee  of  the  first  bond,  the  bank  was  not 
authorized  to  receive  in  its  payment  depreciated  notes  of  the  banks  of 
Virginia.  The  fact  that  tliose  notes  constituted  the  principal  currency 
in  wiiich  the  ordinar}'  transactions  of  business  were  conducted  in 
Alexandria,  cannot  alter  the  law.  The  notes  were  not  a  legal  tender 
for  the  debt,  nor  could  the}-  have  been  sold  for  the  amount  due  in  legal 
currencv.  The  doctrine  that  bank  bills  are  a  good  tender,  unless 
objected  to  at  tlie  time,  on  the  ground  that  the}-  are  not  money,  only 
applies  to  current  bills,  which  are  redeemed  at  the  counter  of  the  bank 
on  presentation,  and  pass  at  par  value  in  business  transactions  at  the 
place  where  offered.  Notes  not  thus  current  at  their  par  value,  nor 
redeemable  on  presentation,  are  not  a  good  tender  to  principal  or 
agent, ^whether  they  are  objected  to  at  tlie  time  or  not. 

In  Ontario  Bank  v.  Lightbody,  13  Wendell,  105,  it  was  held  that 
the  payment  of  a  check  in  the  bill  of  a  bank  which  had  previously 
•suspended  was  not  a  satisfaction  of  the  debt,  though  the  suspension 
was  unknown  by  either  of  the  parties,  and  the  bill  was  current  at  the 
time,  the  court  observing  that  the  bills  of  banks  could  only  be  con- 
sidered and  treated  as  money  so  long  as  they  are  redeemed  by  the 
bank  in  specie. 

That  the  power  of  a  collecting  agent  by  the  general  law  is  limited 
to  receiving  for  the  debt  of  his  principal  that  which  the  law  declares  to 
be  a  legal  tender,  or  which  is  by  common  consent  considered  and 
treated  as  money,  and  passes  as  such  at  par,  is  established  by  all  the 
authorities.  The  only  condition  they  impose  upon  the  principal,  if 
anything  else  is  received  by  his  agent,  is,  that  he  shall  inform  the 
debtor  that  he  refuses  to  sanction  the  unauthorized  transaction  within 
a  reasonable  period  after  it  is  brought  to  his  knowledge.  Story  on 
Promissory  Notes,  §§  115,  389  ;  Graydon  v.  Patterson,  18  Iowa,  256  ; 
Ward  ?'.  Evans,  2  Lord  Raymond,  930 ;  Howard  v.  Chapman,  4  Car- 
rington  &  Payne,  508. 

The  objection  that  the  bonds  did  not  draw  interest  pending  the 
civil  war  is  not  tenable.  The  defendant  Ward,  who  purchased  the 
land,  was  the  principal  debtor,  and  he  resided  within  the  lines  of 
the  Union  forces,  and  the  bonds  were  there  payable.  It  is  not  necessary 
to  consider  here  whether  the  rule  that  interest  is  not  recoverable  on 
debts  between  alien  enemies  during  war  of  their  respective  countries, 
is  applicable  to  debts  between  citizens  of  States  in  rebellion  and 
citizens  of  States  adhering,  to  the  national  government  in  the  late 
civil  war.  That  rule  can  only  apply  when  the  money  is  to  be  paid  to 
the  belligerent  directly.  When  an  agent  appointed  to  receive  the 
money  resides  within  the  same  jurisdiction  with  the  debtor,  the  latter 
cannot  justify  his  refusal  to  pay  the  demand,  and,  of  course,  the 
interest  which  it  bears.  It  does  not  follow  that  the  agent,  if  he  receive 
the  money,  will  violate  the  law  by  remitting  it  to  his  alien  principal. 
"  The  rule,"  says  Mr.  Justice  Washington,  in  Conn  v.  Penn,  "  can 
never  apply  in  cases  where  the  creditor,  although   a  subject   of  the 


342  STEWART    V.    WOODWAKD.  [CHAP.  II. 

enemy,  remains  in  tbe  countiy  of  the  debtor,  or  has  a  known  agent 
there  authorized  to  receive  the  debt,  because  the  payment  to  such 
creditor  or  bis  agent  could  in  no  respect  be  construed  into  a  violation 
of  the  duties  imposed  by  a  state  of  war  upon  the  debtor.  The 
payment  in  such  cases  is  not  made  to  an  enemy,  and  it  is  no  ob- 
jection tliat  the  agent  may  possibly  remit  the  money  to  his  principal. 
If  he  should  do  so,  the  offence  is  imputable  to  him,  and  not  to  the 
person  paying  him  the  money."  1  Peters's  Circuit  Court,  496  ;  Dennis- 
ton  V.  Imbrie,  3  Washington  do.  396.  Nor  can  the  rule  apply  when 
one  of  several  joint  del)tors  resides  within  the  same  country  with  the 
creditor,  or  with  the  known  agent  of  the  creditor.  It  was  so  held  in 
Paul  V.  Christie,  4  Harris  &  McHenrv,  161. 

Here  the  principal  debtor  resided,  and  the  agent  of  the  creditor  for 
the  collection  of  the  first  bond  was  situated  within  the  Federal  lines  and 
jurisdiction.  No  rule  respecting  intercourse  with  the  enemy  could  appl}' 
as  between  Marbury,  the  cashier  of  the  bank  at  Alexandria,  and  Ward, 
the  principal  debtor  residing  at  the  same  place. 

Tbe  principal  debtor,  being  within  the  Union  lines,  could  have  pro- 
tected himself  against  the  running  of  interest  on  the  other  two  bonds 
bj'  attending  on  their  maturity  at  the  bank,  where  the}'  were  made 
pa3-able,  with  the  funds  necessary  to  pay  them.  If  the  creditor  within 
the  Confederate  lines  had  not  in  that  event  an  agent  present  to  receive 
pa^'ment  and  surrender  the  bonds,  he  would  have  lost  the  right  to  claim 
subsequent  interest.  Judgment  affirmed} 


STEWART    r.    WOODWARD. 
Supreme  Court  of  Vermont.     1877. 

[50  Vt.  78.] 

Book  account.  The  auditor  reported  substantially  as  follows.  The 
account  upon  which  the  plaintiff  seeks  to  recover,  is  for  a  suit  of 
clothes,  and  various  articles  of  clothing.  The  defendant  did  not  deny 
the  receipt  of  any  of  tbe  articles  charged,  except  a  vest  and  a  box  of 
cuffs,  and  those  items  I  disallowed  for  want  of  proof.  The  plaintiffs, 
I  find,  are  entitled  to  recover  for  the  remainder  of  tbe  account,  unless 
the  Court  should  be  of  opinion,  upon  the  following  statement  of  facts, 
that  tiie  defendant  is  not  liable.  In  January,  1874,  the  plaintiffs,  who 
reside  in  Concord,  N.  H.,  and  are  there  engaged  in  business  as  mer- 
chant tailors,  started  a  branch  house  in  Montpelier.  Neither  of  the 
plaintiffs  personally  superintended  the  business  there,  but  they  em- 
ployed Fred.  R.  Stevens  to  assist  in  selling  goods,  and  espcciall}'  to 
look  after  the  furnisliing  department,  and  A.  S.  Currier,  whom  they 

1  Compare  Oliver  v.  Sterling,  20  Ohio  St.  391  (1870).  —  Ed. 


SECT.  III.]  STEWART    V.    WOODWAKD.  343 

had  before  employed  as  a  general  agent,  who  was  to  do  the  cutting, 
and  order,  sell,  and  superintend  the  making  up  of  the  goods,  and  draw 
checks  on  the  bank,  in  Montpelier,  where  the  firm  kept  a  deposit,  to 
pay  the  current  expenses  of  the  firm.  The  agreed  price  for  Currier's 
work  was  $18  per  week.  .Soon  after  Currier  comnu-nced  work  he  and 
his  family  fell  ill,  and  he  employed  the  defendant,  wiio  was  a  physician, 
until  his  bill  was  greater  than  the  account  in  suit.  Ciurier  solicited 
the  defendant  to  take  his  pay  out  of  the  store,  and  to  have  a  new  suit 
of  clothes,  and  told  liim  tliat  the  goods  he  took  should  apply  in  pay- 
ment of  his  bill  for  medical  attendance.  The  defendant  took  the  goods, 
relying  on  what  Currier  told  him,  supposing  that  Currier  had  autliorit}' 
to  dispose  of  the  goods  in  that  wa}',  and  supposing  that  he  was  getting 
pay  for  his  account  against  Currier  ;  otherwise  he  would  not  have  taken 
the  goods.  At  the  time  the  goods  were  taken,  they  were  charged  to 
the  defendant  on  the  plaintiffs'  books,  and  at  the  time  the  plaintifll's' 
business  was  closed  in  Montpelier,  in  July,  1874,  had  not  been  trans- 
ferred thereon  to  the  account  of  Currier.  The  plaintiffs  made  no  ques- 
tion but  that  Currier  had  the  right  to  use  enough  of  their  funds  to  pay 
himself  his  wages.  At  the  time  plaintiffs  closed  out,  owing  to  sick- 
ness, or  other  causes.  Currier  had  taken  from  plaintiffs'  funds  more 
than  the  amount  of  his  wages,  and  he  took  more  than  the  amount 
of  the  account  against  the  defendant,  after  the  goods  were  bought. 
The  defendant  offered  evidence  tending  to  show  that  Currier  had 
agreed  to  pay,  and  had  paid,  other  of  his  private  bills  out  of  the 
store,  to  which  the  plaintiffs  objected  ;  but  the  auditor  received  it,  sub- 
ject to  legal  objection,  and  finds  therefrom  only  that  such  agreements 
and  payments  were  made.  If,  upon  the  foregoing  facts,  the  Court 
should  be  of  opinion  tliat  the  plaintilTs  are  entitled  to  recover,  I  find 
due  the  plaintiffs,  with  interest  to  date,  $61.73.  The  defendant  also 
oflTered  evidence  tending  to  show  that  one  of  the  plaintiffs,  before  the 
house  was  established  at  Montpelier,  had  a  conversation  with  the  de- 
fendant in  which  he  informed  him  that  Currier  was  to  have  an  interest 
in  the  business  ;  but  I  do  not  find  that,  after  looking  up  the  business 
and  deciding  to  establish  the  branch  house,  the  plaintiffs  ever  held  out 
that  Currier  was  anything  but  an  emploj'ee.  The  defendant  also  offered 
evidence  tending  to  show  that  Currier  often  told  diflTerent  parties  that 
he  had  an  interest  in  the  concern,  to  which  the  plaintiffs  objected,  but 
which  was  received  subject  to  legal  objection.  I  find  therefrom  that 
some  parties,  including  the  defendant,  understood  him  to  mean  that 
either  he  was  a  partner  in  the  firm  or  had  some  interest  beyond  that  of 
an  employee,  although  I  do  not  find  that  Currier  ever  gave  that  expla- 
nation of  what  he  said  ;  and  that  that  phrase  is  just  as  consistent  with 
the  idea  that  his  interest  was  only  tliat  of  an  employee.  The  sign  at 
the  store  was,  "  T.  "W.  &  J.  H.  Stewart.  A.  S.  Currier,  cutter'*;  and 
they  advertised  under  that  name  in  one  or  more  papers  published  at 
Montpelier.  T  do  not  find  that  Currier,  as  the  general  agent  of  the 
plaintiffs,  had,  in  the  management  of  the  business,  authoritj'  co-exten- 


344  STEWART   V.   WOODWARD.  [CHAP.  II. 

sive  with  that  of  either  of  the  partners;  but  I  do  find  that  Currier,  as 
such  agent,  had  authority  to  do  all  things  necessary  and  proper  to  be 
done,  and  that  could  legitimately  be  done,  in  running  the  business 
established  in  Montpelier.  The  Court,  at  the  March  term,  1877,  Red- 
field,  J.  presiding,  rendered  judgment,  jaro/orma,  on  the  report  for  the 
defendant;  to  wliich  the  plaintiffs  excepted. 

Gleason  and  Field,  for  the  plaintiffs. 

Hiath  and  Carleton,  for  the  defendant. 

The  opinion  of  the  Court  was  delivered  by 

Powers,  J.  The  report  of  the  auditor  states  that  Currier  was  the 
general  agent  of  the  plaintiffs  in  the  conduct  of  their  business  at  Mont- 
pelier. His  authority  there  empowered  him  to  do  all  things  usual  and 
useful  to  conduct  the  business  of  merchant-tailors.  A  general  agency 
is,  however,  a  restricted  service.  The  agent  cannot  go  outside  the 
proper  scope  of  his  principal's  business.  So  far  as  the  business  of  his 
principal  is  concerned,  he  may  do  all  that  his  principal  could  do.  He 
cannot  steal  his  principal's  goods,  nor  appropriate  them  to  his  own  use. 
He  can  only  appropriate  them  to  the  use  and  profit  of  the  principal. 
Persons  dealing  with  a  general  agent  are  bound  to  measure  the  scope 
of  his  authority,  as  they  are  in  dealing  with  a  special  agent.  Although 
the  compass  of  authority  in  the  one  case  is  wider  than  in  the  other, 
still  it  is  to  be  understood  that  it  has  its  limits.  It  is  to  be  understood 
that  it  is  an  agent,  not  a  principal,  who  acts.  Lapoint  v.  Scott,  36 
Vt.  608. 

The  defendant's  good  faith  in  the  transaction  avails  him  nothing.  It 
does  not  cure  Currier's  bad  faith. 

The  plaintiffs  have  not  misled  the  defendant.  They  notified  ever}'- 
bod\'  that  Currier  was  an  agent,  authorized  to  sell  their  goods.  Pur- 
chasers understood  the}'  were  buying  goods  of  the  plaintiffs  through 
Currier  as  their  salesman,  and  that  the  pay  went,  or  should  go,  to  the 
plaintiffs. 

The  defendant  purchased  the  goods  sued  for,  and  attempted  a  mode 
of  payment  which  he  was  bound  to  know  was  unauthorized.  He  has 
had  the  goods  and  converted  them  to  his  own  use,  never  having  paid 
the  plaintiffs  for  them.  The  implied  promise  arising  from  taking  the 
benefit  of  the  delivery  of  them,  is  sufficient  to  warrant  a  recovery  in 
this  action. 

Judgment  reversed,  and  judgment  on  the  re'port  for  the  plahitijfs.^ 

1  See  Holton  v.  Smith,  7  N.  H.  446  (1835)  ;  Benny  v.  Rhodes,  18  Mo.  147  (1853)  ; 
Benny  v.  Pegram,  18  Mo.  191  (1853)  ;  Aultman  v.  Lee,  43  Iowa,  404  (1876) ;  Williams 
p.  Johnston,  92  N.  Car.  532  (1885)  ;  Dowden  v.  Cryder,  55  N.  J.  L.  329  (1893).—  Ed. 


SECT.  III.]  BENTLEY    V.   DOGGETT.  345 


BENTLEY   v.    DOGGETT. 
Supreme  Court  oe  Wisconsin.     1881. 

[51    Wis.  224.] 

Appeal  from  the  Circuit  Court  for  Grant  County. 

Action  to  recover  $oO,  with  interest,  upon  an  account  for  livery  fur- 
nished in  February  and  May,  1875,  to  one  I.  C.  Otis,  a  servant  and 
agent  of  the  defendants,  which  livery,  it  is  alleged  in  the  complaint, 
"•  was  used  and  employed  b}-  the  said  I.  C.  Otis  in  and  about  the  busi- 
ness of  the  said  defendants,  and  at  their  special  instance  and  request." 
The  account  attached  to  the  complaint  was  made  out  against  Otis. 
The  facts  shown  by  the  evidence,  and  the  exceptions  relied  upon  by  the 
defendants,  are  thus  stated  by  Mr.  Justice  Taylor  :  — 

"  The  plaintiff  kept  a  livery  stable  in  Platte ville,  in  this  State,  and 
in  February  and  May,  1875,  he  let  one  I.  C.  Otis  have  horses  and  car- 
riages to  transport  said  Otis  and  his  trunks  from  place  to  place,  and 
the  value  of  the  use  of  the  horses  and  carriages  was  the  sum  of  S50,  of 
which  an  itemized  account  is  given.  Said  Otis  was  at  the  time  in 
the  employ  of  the  defendants,  a  firm  of  merchants  in  the  cit}-  of 
Chicago,  and  was  travelling  for  them,  selling  goods  by  sample  and 
collecting  bills  for  goods  sold  by  him  for  said  firm  ;  the  livery  was  fur- 
nished to  Otis  to  transact  his  legitimate  business  for  said  firm  ;  such 
livery  was  necessary  and  convenient  for  the  transaction  of  the  business 
of  said  Otis  ;  and  he  had  failed  to  pay  therefor.  The  evidence  also 
shows  that  Otis  was  paid  a  fixed  salary  by  the  defendants,  and  his 
expenses  whilst  travelling  for  them. 

"  On  the  trial,  the  defendants  ofl"ered  to  prove  that  the}-  alwaj-s 
furnished  Otis,  as  the}-  did  all  their  other  travelling  salesmen,  suflScient 
money  to  pa}-  all  their  expenses  ;  that  he  was  so  furnished  with  suffi- 
cient money  at  the  time  this  bill  was  made  ;  that  he  had  no  authorit}' 
to  incur  any  liabilit}'  whatever  against  the  firm  ;  and  that  subsequently 
to  the  making  of  this  bill  by  Otis,  and  without  any  knowledge  that  the 
plaintiff  had  any  such  bill  against  them  or  Otis,  they  had  settled  with 
said  Otis,  and  allowed  him  in  such  settlement  the  amount  of  plaintiff's 
bill,  as  mone}-  expended  by  him  in  their  employment.  The  evidence 
further  shows  that  the  charges  made  on  the  plaintiff's  books  for  said 
bill  were  all  made  against  I.  C.  Otis,  and  not  against  these  defendants, 
and  that  no  demand  was  made  of  the  defendants  for  the  payment  of 
the  bill  until  after  this  action  was  commenced.  The  defendants  offered 
to  prove  on  the  trial  that  it  is  a  general  custom,  and  was  when  this  bill 
was  made,  among  the  commercial  houses  in  the  city  of  Chicago,  in 
sending  out  travelling  agents  to  sell  goods  for  their  employers,  to  fur- 
nish them  with  sufficient  money  to  pay  all  their  hotel  bills  and  travel- 
ling and  other  expenses,  and  that  in  no  instance  are  such  agents 
permitted  to  pledge  the  credit  of  their  principals  or  incur  any  liability 


346  BENTLEY   V.   DOGGETT.  [CHAP.  II. 

against  their  emplo3'ers.    This  evidence  was  objected  to  by  the  plaintiff, 
and  excluded. 

"Upon  the  close  of  the  evidence  the  defendants  requested  the  Court 
to  submit  the  following  questions  to  the  jur^-,  in  the  way  of  a  special 
verdict:  (1)  Was  the  credit  given  by  the  plaintiff  to  the  defendants 
Doggett,  Bassett  &  Hills,  or  was  it  given  to  I.  C.  Otis,  at  the  time  the 
livery  was  furnished  him  ?  (2)  Did  or  did  not  the  defendants  furnish 
I.  C.  Otis  with  sufficient  money  with  which  to  pay  his  travelling  ex- 
penses at  the  time  and  prior  to  his  starting  out  on  these  trips  to  sell 
the  goods  of  the  defendants?  (3)  Did  or  did  not  the  defendants  give 
any  authority  to  I.  C.  Otis  to  obtain  liver}'  on  credit?  The  Court 
declined  to  sul)mit  to  the  jury  the  second  and  third  questions  pro- 
posed, and  submitted  the  first;  and  in  answer  to  that  question  the 
jury  found  as  follows  :  '  We,  the  jury,  find  that  the  livery  was  furnished 
upon  the  credit  of  Doggett,  Bassett  &  Hills.' 

"  There  was  no  question  made  as  to  the  amount  of  the  plaintiff's  bill, 
nor  as  to  the  facts  that  it  was  unpaid,  and  that  the  livery  was  used  by 
I.  C.  Otis  in  the  pursuit  of  his  business  as  a  (;omraercial  agent  in  the 
employ  of  the  defendants.  The  defendants  offered  to  show  upon  thQ 
trial  that  they  had  furnished  Otis  with  sufficient  money  to  pay  all  his 
expenses  and  livery  bills,  and  that  he  had  no  authority  and  was  forbid- 
den by  them  to  pledge  the  credit  of  the  defendants  for  such  bills  ;  but 
they  did  not  offer  to  show  that  these  facts  were  known  to  the  plaintiff 
when  he  furnished  the  livery  to  their  agent,  Otis.  The  court  below 
held  that,  a  knowledge  of  these  restrictions  upon  the  power  of  their 
agent  not  having  been  brought  home  to  the  plaintiff  at  the  time  he  fur- 
nished the  livery  to  the  agent,  Otis,  they  were  not  material  to  the  issue. 
and  should  be  disregarded  by  the  jury  in  making  up  their  verdict ;  and 
it  entirel}'  withdrew  them  from  their  consideration,  l)y  refusing  to  sub- 
mit the  second  and  third  questions  propounded  by  the  defendant  for  a 
special  verdict." 

Tlie  jury  found  specially  that  the  livery  was  furnished  upon  the 
credit  of  defendants,  and  also  rendered  a  general  verdict  in  favor  of 
the  plaintiff ;  defendants'  motion  for  a  new  trial  was  denied  ;  and  they 
appealed  from  a  judgment  on  the  verdict. 

For  the  appellants  there  was  a  brief  by  W.  H.  Beebe,  their  attorney, 
with  A.  R.  Bushnell^  of  counsel,  and  oral  argument  by  Mr.  Beebe. 

William  E.  Carter,  for  the  respondent. 

Taylor,  J.  It  is  clearly  shown  by  the  evidence  that  it  was  not  onh' 
convenient  but  necessary  for  the  agent,  Otis,  to  have  the  use  of  horses 
and  carriages  in  order  to  transact  the  business  he  was  employed  to 
transact ;  and  the  only  question  is  whether  he  could  bind  his  princi- 
pals b}'  hiring  them  upon  their  credit.  Otis  was  the  agent  of  the 
defendants  for  the  purpose  of  travelling  about  the  countr}'  with  samples 
of  their  merchandise,  contained  in  trunks,  which  rendered  it  necessary 
to  have  a  team  and  carriage  to  transport  him  and  his  samples  from 
place  to  place,  with  full  authorit}-  to  sell  their  merchandise  by  sample 


SECT.  III.]  BENTLEY   V.    DOGGETT.      -  347 

to  customers,  and  direct  the  same  to  be  delivered  according  to  his 
orders.  The  defendants  not  having  furnished  their  agent  the  neces- 
sary teams  and  carriages  for  transportation,  he  clearly  had  the  right  to 
hire  the  same  and  i)ay  their  hire  out  of  the  funds  in  his  hands  belong- 
ing to  them.  Tliis  is  admitted  by  all  parties.  The  real  question  is, 
Can  the  agent,  having  the  money  of  his  principals  in  his  possession 
for  the  purpose  of  paying  such  hire,  b3'  neglecting  to  pay  for  it,  charge 
them  with  the  payment  to  the  part}-  furnishing  the  same,  such  part}' 
being  ignorant  at  the  time  of  furnishing  the  same  that  the  agent  was 
furnished  by  his  principals  with  money  and  forbidden  to  pledge  their 
credit  for  the  same? 

There  can  be  no  question  that,  from  the  nature  of  the  business 
required  to  be  done  by  their  agent,  the  defendants  held  out  to  those 
who  might  have  occasion  to  deal  with  him  that  he  had  the  right  to 
contract-  for  the  use  of  teams  and  carriages  necessary  and  convenient 
for  doing  such  business,  in  the  name  of  his  principals,  if  he  saw  fit,  in 
the  way  such  service  is  usually  contracted  for ;  and  we  ma}-,  perhaps, 
take  judicial  notice  that  such  service  is  usually  contracted  for,  payment 
to  be  made  after  the  service  is  performed.  It  would  seem  to  follow 
that,  as  the  agent  had  the  power  to  bind  his  principals  by  a  contract 
for  such  service,  to  be  paid  for  in  the  usual  way,  if  he  neglects  or 
refuses  to  pay  for  the  same  after  the  service  is  performed,  the  princi- 
pals must  pay.  The  fault  of  the  agent  in  not  paying  out  of  the  money 
of  his  principals  in  his  hands  cannot  deprive  the  party  furnishing  the 
service  of  the  right  to  enforce  the  contract  against  them,  he  being 
ignorant  of  the  restricted  authority  of  the  agent.  If  the  party  fur- 
nishing the  service  knew  that  the  agent  had  been  furnished  by  his 
principal  with  the  money  to  pay  for  the  service,  and  had  been  for- 
bidden to  pledge  the  credit  of  his  principals  for  such  service,  he  would 
be  in  a  different  position.  Under  such  circumstances,  if  he  furnished 
the  service  to  the  agent,  he  would  be  held  to  have  furnished  it  upon  the 
sole  credit  of  the  agent,  and  he  would  be  compelled  to  look  to  the 
agent  alone  for  his  pay.  We  think  the  rule  above  stated  as  governing 
the  case  is  fully  sustained  by  the  fundamental  principles  of  law  which 
govern  and  limit  the  powers  of  agents  to  bind  their  principals  when 
dealing  with  third  persons.  Judge  Story,  in  his  work  on  Agency, 
§  127,  says:  "  The  principal  is  bound  by  all  acts  of  his  agent  within 
the  scope  of  the  authority  which  he  holds  him  out  to  the  world  to 
possess,  although  lie  may  have  given  him  more  limited  private  instruc- 
tions unknown  to  the  persons  dealing  with  him."  In  §  133  he  says: 
"So  far  as  an  agent,  whether  he  is  a  general  or  special  agent,  is  in 
any  case  held  out  to  the  pulilic  at  large,  or  to  third  persons  dealing 
with  him,  as  competent  to  contract  for  and  bind  the  principal,  the  lat- 
ter will  be  bound  by  the  acts  of  the  agent,  notwithstanding  he  may 
have  deviated  from  his  secret  instructions."  And  again,  in  §  73, 
in  speaking  of  the  power  of  an  agent  acting  under  a  written  authority, 
he  says:   "In   each  case  the   agent   is    apparently  clothed   with    full 


348  BENTLEY  V.    DOGGETT.  [CHAP.  II. 

authority  to  use  all  such  usual  and  appropriate  means,  unless  upon  the 
face  of  the  instrument  a  more  restricted  authority'  is  given,  or  must  be 
inferred  to  exist.  In  each  case,  therefore,  as  to  third  persons  inno- 
centl}'  dealing  with  his  agent,  the  principal  ought  equally  to  be  bound 
by  acts  of  the  agent  executing  such  authority'  by  any  of  those  means, 
although  he  maj'  have  given  to  the  agent  separate  private  and  secret 
instructions  of  a  more  limited  nature,  or  the  agent  may  be  secretly 
acting  in  violation  of  his  dut}'.''  In  the  case  of  Pickering  v.  Busk, 
15  East,  38-43,  Lord  P^llenborough,  speaking  of  the  power  of  an 
agent  to  bind  his  principal,  says:  "  It  is  clear  that  he  ma}-  bind  his 
principal  within  the  limits  of  the  authority  with  which  he  has  been 
apparent!}'  clothed  by  the  principal  in  respect  to  the  subject-matter ; 
and  there  would  be  no  safety  in  mercantile  transactions  if  he  could 
not."  These  general  principles  have  been  illustrated  and  applied  by 
this  and  other  courts  in  the  following  cases  :  Young  v.  Wright,  4  Wis, 
144;  Whitney  v.  State  Bank,  7  Wis.  620;  Long  v.  Fuller,  21  Wis. 
121  ;  Houghton  v.  Bank,  26  Wis.  663  ;  Kasson  v.  Noltner,  43  Wis.  646  ; 
Smith  V.  Tracy,  36  N.  Y.  79  ;  Andrews  v.  Kneeland,  6  Cow.  354. 

In  this  view  of  the  case  it  was  immaterial  w4mt  the  orders  of  the 
principal  were  to  the  agent,  or  that  he  furnished  him  mone}'  to  pay 
these  charges,  so  long  as  the  person  furnishing  the  service  was  in  igno- 
rance of  such  facts.  In  order  to  relieve  himself  from  liability,  the 
principal  was  bound  to  show  that  the  plaintiff  had  knowledge  of 
the  restrictions  placed  upon  his  agent,  or  that  the  custom  to  limit  the 
powers  of  agents  of  this  kind  was  so  universal  that  the  plaintiff  must 
be  presumed  to  have  knowledge  of  such  custom.  Under  the  decisions 
of  this  court,  the  custom  offered  to  be  proved  was  not  sufficiently  uni- 
versal to  charge  the  plaintiff  with  notice  thereof.  See  Scott  v.  Whit- 
ney, 41  Wis.  504,  and  the  cases  cited  in  the  decision,  and  Hinton  v. 
Coleman,  45  Wis.  165.  And  there  being  no  proof  of  actual  notice  to 
the  plaintiff,  the  onl}'  issue  left  in  the  case,  which  was  not  clearl}'  dis- 
posed of  in  favor  of  the  plaintiff  b}'  the  evidence,  was  submitted  to  the 
jur}',  viz. :  whether  the  credit  was,  in  fact,  given  b\-  the  plaintiff  to  the 
agent  or  to  the  firm.  The  inry  found  against  the  defendants  upon  this 
issue.  From  reading  the  evidence  in  the  record,  I  should  have  been 
better  pleased  with  a  different  verdict  upon  this  issue  ;  but  as  there  is 
some  evidence  to  support  the  verdict,  and  as  this  court  has  held  sub- 
stantiall}^  in  Champion  v.  Doty,  31  Wis.  190,  that  charging  the  service 
in  the  plaintiff's  books  to  the  agent  is  not  conclusive  that  the  credit 
was  given  to  him,  but  might  be  explained,  it  was  the  province  of  the 
jury  to  say  whether  the  explanation  given  by  the  plaintiff  was  reason- 
able and  satisfactory.  We  cannot,  therefore,  set  aside  the  verdict  as 
against  the  evidence. 

By  the  Court.     The  judgment  of  the  Circuit  Court  is  affirmed.* 

1  See  Huntley  i-.  Mathias,  90  N.  Car.  101  (1884).  — Ed. 


SECT,  III,]      CAMDEN   SAFE  DEPOSIT  AND   TRUST  CO,  V.  ABBOTT.      349 


CAMDEN   SAFE  DEPOSIT  AND  TRUST  CO.   v.  ABBOTT. 

Supreme  Court  of  New  Jersey.     1882. 
[44  .V.  J.  L.  257.] 

On  rule  to  show  cause. 

Argued  at  February  term,  1882,  before  Justices  Dixon,  Reed,  and 
Magie. 

Chas.  T.  Meed,  for  the  rule, 

Samuel  H.  Grey,  contra. 

The  opinion  of  the  court  was  delivered  by 

Dixox,  J,  This  suit  was  brought  upon  a  promissory  note  drawn  to 
the  order  of  J.  R.  Abbott,  signed  witli  the  defendant's  name  by  Jesse  R. 
Abbott,  who  acted  under  a  power  of  attorney  of  the  following  tenor  :  — 

"  Sir  :  Tliis  is  to  certify  that  J.  R.  Abbott  ...  is  tliis  day  appointed 
with  power  of  attorney,  and  authorized  by  me  to  sign  my  name  to  any 
paper  or  papers,  notes,  «fec. 

"  T,  Abbott. 

"  Dated  Sept.  18th,  1878, 

"  Witness  present,  William  J.  Westcott." 

On  the  trial  a  question  was  raised  whether  the  words  "  notes,  &c." 
were  not  added  fraudulently  after  the  defendant  had  executed  the  in- 
strument, but  the  jury  found  against  this  proposition.  Such  an  inquiry 
seems  scarcely  important,  for  the  language  of  the  power,  without  those 
words,  is  so  general  that  it  is  hardly  possible  to  interpret  them  in  such 
manner  as  to  exclude  an  authority  to  sign  notes  on  proper  occasions. 

But  in  whichever  form  the  instrument  was  delivered,  it  did  not  justify 
the  signing  of  notes  for  purposes  outside  of  tlie  principal's  business. 
Gulick  V.  Grover,  4  Vroom,  463  ;  Stainer  v.  Tysen,  3  Hill,  279, 

The  note  in  suit  was  given  for  such  a  purpose,  it  having  been  put  forth 
for  the  personal  benefit  of  the  attorney,  who  converted  its  proceeds  to 
his  own  use.  It  was  therefore  issued  under  an  apparent  authority,  but 
in  fraud  of  the  principal.  The  holders  of  such  notes  can  recover  of  the 
principal  only  on  showing  that  they  took  them  for  value,  before  matu- 
rit}-,  and  bona  fide.  North  River  Bank  v.  Ay  mar,  3  Hill,  262  ;  Duncan 
V.  Gilbert.  5  Dutcher,  521  ;  Hamilton  v.  Vou;j:ht,  5  Yroora,  187;  Bird 
V.  Daggett,  97  Mass.  494. 

The  onl}'  evidence  touching  this  matter,  in  the  record  before  us,  is 
that  the  attorney  received  the  amount  of  the  note,  but  when,  from 
whom,  and  under  what  circumstances,  do  not  a])pear. 

The  verdict  for  the  plaintiff  must  therefore  be  set  aside,  and  a  new 
trial  granted. 


S50  QUINLAN    V.    PROVIDENCE    WASHINGTON    INS.    CO.       [CHAP.  IL 


QUINLAN,    Appellant    v.    PROVIDENCE   WASHINGTON 
INSURANCE   COMPANY,    Respondent. 

Court  of  Appeals  of  New  York.     1892. 

[133  iV.    i'.  356.] 

Appkal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  entered  upon  an  order  made  July  7, 
1891,  wliich  affirmed  a  judgment  in  favor  of  defendant  entered  upon 
an  order  nonsuiting  plaintiff  on  trial  at  Circuit. 

This  action  was  upon  a  policy  of  fire  insurance  on  a  dwelling-house 
at  Cape  Vincent,  Jefferson  County. 

The  policy  was  issued  b}-  one  Kelsey,  an  agent  of  the  defendant, 
having  power  to  countersign  and  issue  policies  furnished  in  blank  by 
the  comi)any,  within  the  territorj'  covered  b}'  his  agency.  It  was  a 
standard  polic}'  in  the  form,  and  containing  the  printed  conditions  pre- 
scribed by  the  Act  of  1886.  It  is  dated  July  12,  1887,  and  insured  for 
three  j-ears  a  dwelling-house  of  the  plaintiff  in  the  sura  of  $500.  The 
plaintiff  had  insurance  on  other  property  in  different  companies,  and 
by  an  arrangement  between  him  and  the  agent  of  the  defendant,  his 
policies  were  left  in  charge  of  the  latter,  who  was  to  attend  to  the 
plaintiffs  interests  in  case  of  any  loss  by  fire.  The  defendant's  policj' 
contained,  among  otlier  conditions  embraced  in  the  standard  polic}',  a 
condition  that  it  should  be  void,  unless  provided  by  agreement  indorsed 
on  or  added  to  the  policy,  "if,  with  knowledge  of  the  insured,  fore- 
closure proceedings  be  commenced,  or  notice  of  sale  of  an}'  property 
covered  by  the  policy  b}'  virtue  of  any  mortgage  or  trust  deed."  Also 
a  provision  that  in  case  of  fire  the  "  insured  shall  give  immediate  notice 
of  any  loss  thereb}',  in  writing,  to  the  compan}',  .  .  .  and  witliin 
sixty  days  after  tlie  fire,  unless  such  time  is  extended  in  writing  by 
this  companj-,  sliall  render  a  statement  to  this  compan}'  in  writing, 
signed  and  sworn  to  by  the  insured,"  containing  certain  particulars 
enumerated. 

By  the  concluding  clause  in  the  polic}'  it  was  provided  that  "  no 
oflScer,  agent,  or  other  representative  of  the  company  shall  have  any 
power  to  waive  any  provision  or  condition  of  this  policy,  except  such 
as  by  the  terms  of  this  policy'  ma}'  be  the  subject  of  agreement,  indorsed 
hereon  and  added  hereto,  and  as  to  such  provisions  or  conditions,  no 
oflScer,  agent,  or  representative  shall  have  such  power,  or  be  deemed  or 
held  to  have  waived  such  provisions  or  conditions,  unless  such  waiver, 
if  any,  shall  be  written  upon  or  attached  hereto,  nor  shall  any  privilege 
or  permission  affecting  the  insurance  under  this  policy  exist  or  be 
claimed  by  the  insured  unless  so  written  or  attached." 

The  part  of  this  clause  relating  to  added  conditions  or  provisions  is 
not  material  here,  as  none  were  added  to  the  policy  in  question.     After 


SECT.  III.]       QUINLAN    V.    PROVIDENCE    WASHINGTON    INS.    CO.  351 

the  policy  was  issued,  and  before  the  fire,  the  phiiiitiff  mortgaged  the 
premises  on  which  the  property  insured  was  situated,  in  connection 
with  other  premises,  for  $3,500.  A  foreclosure  of  the  mortgage  was 
commenced  by  process  served  on  the  plaintiff  Ma}'  27,  1889,  twenty 
days  before  the  fire  which  destroyed  the  insured  premises,  which  was 
on  June  16,  1889.  The  company  had  no  notice  of  thi^s  foreclosure. 
The  policy  of  insurance  was,  at  the  request  of  plaintiff,  delivered  by 
Kelsey  the  agent,  who  issued  it,  to  the  mortgagee  upon  the  execution 
of  the  mortgage,  and  there  was  indorsed  thereon  a  clause  making  the 
loss,  if  any,  payable  to  him. 

In  February  thereafter  (1889)  the  policy,  then  in  possession  of  the 
mortgagee,  was  burned  in  the  burning  of  a  building  in  which  it  was 
deposited,  and  no  duplicate  policy  was  applied  for  or  issued.  In 
August,  1888,  about  ten  months  before  the  fire,  Kelsey  ceased  to  act 
as  agent  for  the  defendant,  and  one  Block  was  appointed  agent  in  his 
place,  who,  before  the  fire,  issued  to  the  plaintifl^  a  policy  in  the  defend- 
ant's company  on  other  property,  and  Block  kept  the  policj"  with  others 
issued  to  the  plaintiff  in  his  possession,  apparently*  under  an  arrange- 
ment similar  to  that  previously-  had  with  Kelsey. 

The  plaintiff  never  served  an}'  notice  of  loss  on  the  company. 
Kelsey,  the  former  agent  of  the  defendant,  on  July  19,  1889,  thirt}'- 
three  days  after  the  fire,  addressed  a  letter  to  the  compan}*,  saying 
that  he  had  just  discovered,  in  looking  over  his  account  with  the  plain- 
tiff, that  the  defendant  had  a  risk  on  the  propert}-,  and  adding,  "Not 
knowing  anything  further,  whether  reported  by  3'our  agent,  or  whether 
adjusted  and  paid,  I  take  the  trouble  to  make  this  report,  feeling  then 
as  if  I  had  done  my  duty."  The  company'  replied  that  the  matter  had 
already'  "  had  our  attention."  The  letter  of  Kelse}'  was  not  written 
in  behalf  of  the  plaintiff,  or  with  his  knowledge  at  the  time,  but  he 
testified  that  Kelse\-  informed  him  about  a  month  after  the  fire  that  he 
had  written  the  company,  and  that  the}-  informed  him  they  were  pay- 
ing attention  to  the  matter.  '•  He  said  he  thought  it  would  be  all 
right ;  that  he  could  collect  it."  No  proofs  of  loss  were  served  on  the 
company  until  January  8,  1890.  about  seven  months  after  the  fire. 
The  company  refused  to  accept  the  proofs  and  returned  them.  The 
witness  Kelsey  testified  that,  in  case  of  loss,  he  would  notify  the  com- 
pany, and  it  would  send  an  adjuster  who  would  prepare  proof  of  loss 
and  settle  the  claim.  But  it  appeared  that  only  one  loss  had  occurred 
during  his  agency  for  the  defendant,  and  that  it  involved  a  few  dollars 
only  and  was  adjusted  by  a  special  agent.  The  plaintiff  testified  that 
he  did  not  read  the  policy,  and  was  ignorant  of  its  conditions. 

The  trial  judge  refused  to  permit  proof  that  Kelsey  knew  of  the 
commencement  of  the  foreclosure  proceedings,  and  assured  the  plain- 
tiff at  the  time  that  no  harm  could  come  to  him  therefrom.  The  court, 
at  the  close  of  the  whole  case,  directed  a  nonsuit. 

i>.  G.  Griffin,  for  appellant. 

A.  H.  Sawyer,  for  respondent. 


352  QUINLAN    V.    PROVIDENCE   WASHINGTON    INS.    GO.       [CHAP.  II. 

Andrews,  J.  If  the  rights  of  the  parties  depend  upon  the  contract 
of  insurance  as  expressed  in  the  policy,  there  can  be  no  hesitation  in 
affirming  the  judgment  of  nonsuit. 

The  provision  as  to  the  commencement  of  foreclosure  proceedings  ; 
the  requirement  that  the  insured,  in  case  of  loss,  shall  give  immediate 
notice  in  writing  to  the  company,  and  the  other  requirement  that 
within  sixt}'  days  after  a  fire  he  shall  render  to  the  company  a  sworn 
statement  of  the  particulars  specified,  are  conditions  precedent  to  a 
right  to  recover  on  the  policy,  and  each  of  the  three  conditions 
mentioned  was  violated.  Foreclosure  proceedings  were  commenced  to 
the  knowledge  of  the  insured  before  the  fire ;  no  notice  of  loss  was 
served  at  anj-  time  by  him,  and  the  letter  of  Kelse}'  to  the  company 
written  thirty-three  days  after  the  fire,  even  if  it  could  be  treated  as 
having  been  written  in  behalf  of  the  insured,  was  not  immediate  notice  ; 
and  finally-  the  proofs  of  loss  were  not  served  until  months  after  the 
sixty  days'  limitation  in  the  policy  had  expired.  The  authorities  are 
conclusive  that  the  non-performance  of  these  conditions,  or  any  one  of 
them,  constituted  a  complete  defence  to  a  claim  to  recover  on  the 
polic}'  as  printed.  Inman  v.  Western  F.  Ins.  Co.,  12  Wend.  460; 
Blossom  V.  Lycoming  F.  Ins.  Co.,  64  N-  Y.  162;  Titus  w.  Glens  Falls 
Ins.  Co.,  81  id.  411. 

The  plaintiff  was  driven  to  the  claim  that  the  company  had  waived 
the  right  to  insist  upon  the  conditions  of  the  contract  as  contained  in 
the  polic}',  or  had  consented  to  be  bound,  notwithstanding  the  violation 
of  the  conditions.  He  relied,  to  establish  this  contention,  upon  certain 
transactions  between  himself  and  Kelsey,  the  agent  who  acted  for  the 
compan}'  in  making  the  contract  of  insurance  and  issuing  the  polic}', 
fully  recited  in  the  statement  of  facts.  It  is  to  be  assumed  that  Kelsey 
learned  of  the  commencement  of  the  foreclosure  proceedings,  and 
thereupon  assured  the  plaintiff  that  his  rights  under  the  policy  would 
not  be  prejudiced  thereb3- ;  also  that  he  knew  of  the  fire  when  it 
occurred,  and  after  writing  the  compan}'  the  letter  of  July  19,  1889, 
informed  the  plaintiff  that  he  had  done  so,  and  that  he  need  take  no 
further  steps  towards  giving  notice  or  securing  proofs  of  loss,  and  it  is 
to  be  admitted  also  that  the  plaintiff  had  not  read  the  polic\-,  and  did 
not  know  what  conditions  it  contained. 

It  is  insisted  that  upon  the  whole  evidence  a  question  was  presented 
for  the  jur3'  whether  the  company-  had  waived  the  conditions  relied 
upon  to  defeat  a  recover^'  or  had  consented  to  be  bound  notwithstand- 
ing their  violation.  The  transactions  and  interviews  between  Kelsey 
and  the  plaintiff  took  place  after  Kelsey  had  ceased  to  act  as  the  agent 
for  the  defendant ;  but  it  is  claimed  that  the  plaintiff  did  not  know  that 
his  agency  had  terminated,  and  we  shall  consider  the  case  upon  the 
assumption  that  the  company  was  bound  b}'  his  acts  to  the  same  extent 
as  if  there  had  been  no  change  in  his  relation  to  the  defendant.  The 
substance  of  the  claim  made  by  the  plaintiff  is  that  the  agent  of  the 
company,  invested  with  the  power  to  make  contracts  of  insurance  and 


SECT.  III.]       QUINLAN    V.    PROVIDENCE    WASHINGTON    INS.    CO.  353 

issue  and  countersign  policies,  may  subsequently  change  or  modify 
conditions  therein  and  waive  forfeitures  ;  in  short,  that  in  respect  to 
policies  issued  by  him  he  stands  in  place  of  the  company  and  may  do 
whatever  the  companj-  itself  might  do  in  the  premises. 

Tiie  powers  possessed  by  agents  of  insurance  companies,  like  those 
of  agents  of  any  other  corporations,  or  of  an  individual  principal,  are 
to  be  interpreted  in  accordance  with  the  general  law  of  agency.  No 
other  or  different  rule  is  to  be  applied  to  a  contract  of  insurance,  than 
is  applied  to  other  contracts.  The  agent  of  an  insurance  company 
possesses  such  powers  and  such  powers  onl}'  as  have  been  conferred 
verbally  or  b}-  the  instrument  of  authorization,  or  such  as  third  persons 
have  a  right  to  assume  that  he  possesses.  Where  the  act  or  representa- 
tion of  the  agent  of  an  insurance  compan}'  is  alleged  as  the  act  of 
the  principal  and  therefore  binding  upon  the  latter,  the  test  of  the 
liability  of  the  principal  is  the  same  as  in  other  cases  of  agenc}-.  No 
principle  is  better  settled  in  the  law,  nor  is  there  any  founded  on  more 
obvious  justice,  than  that  if  a  person  dealing  with  an  agent  knows  that 
he  is  acting  under  a  circumscribed  and  limited  authority,  and  that  his 
act  is  outside  of  and  transcends  the  authorit\-  conferred,  the  principal 
is  not  bound,  and  it  is  immaterial  whether  the  agent  is  a  general  or 
special  one,  because  a  principal  may  limit  the  authorit}-  of  the  one  as 
well  as  that  of  the  other.  Walsh  v.  Hartford  Fire  Tns.  Co.,  73  N.  Y. 
10. 

The  limitations  upon  the  authoritv  of  Kelsey  were  written  on  the 
face  of  the  policy.  It  declared  that  "  no  officer,  agent,  or  representa- 
tive of  the  company  should  have  power  to  waive  any  provision  or 
condition  "  embraced  in  the  printed  and  authorized  policy,  but  power 
is  given  to  agents  to  waive  added  provisions  or  conditions,  provided 
such  waiver  is  written  upon  or  attached  to  the  policy.  Where  a  policy 
permits  an  agent  to  exercise  a  specified  authority,  but  prescribes  that 
the  compan}'  shall  not  be  bound  unless  the  execution  of  the  power  shall 
he  evidenced  b}-  a  written  indorsement  on  the  policj',  the  condition  is 
of  the  essence  of  the  authorit}',  and  the  consent  or  act  of  the  agent  not 
so  indorsed  is  void.  Walsh  v.  Hartford  Fire  Ins.  Co.,  supra;  Marvin 
V.  Universal  Life  Ins.  Co.,  85  N.  Y.  278.  The  conditions  violated  in 
this  case  were  contained  in  the  authorized  blank,  and  as  to  these  the 
agent  had  no  power  in  any  manner,  in  writing,  or  otherwise,  to  waive 
them. 

In  determining  the  question  of  liability  in  this  case  it  is  immaterial 
whetlier  the  plaintiff  rend  the  policy  or  not,  or  that  he  had  no  actual 
knowledge  of  the  conditions  or  of  the  limitations  of  the  power  of 
Kelsey.  The  conditions  and  limitations  were  a  part  of  the  contract  and 
he  was  bound  to  take  notice  of  tliem,  and  is  not  excused  upon  the 
plea  that  he  omitted  to  acquaint  liimself  with  the  provisions  of  the 
polic-}-,  and  his  arrangement  with  Kelsey  to  take  charge  of  his  insurance 
interests  was  a  matter  with  which  tlie  defendant  had  no  concern. 

The  act  (Chap.  486,  of  the  Laws  of  188G)  providing  for  a  uniform 

23 


354  QUINLAN    V.    PROVIDENCE    WASHINGTON    INS.    CO.       [CHAP.  II. 

polic}-  known  as  the  standard  policy,  and  which  makes  its  use  compuU 
sory  upon  insurance  companies,  marks  a  most  important  and  useful 
advance  in  legislation  relating  to  contracts  of  insurance.  The  practice 
which  prevailed  before  this  enactment,  whereby  each  company  pre- 
scribed the  form  of  its  contract,  led  to  great  diversity  in  the  provisions 
and  conditions  of  insurance  policies,  and  frequently  to  great  abuse. 
Parties  taking  insurance  were  often  misled  by  unusual  clauses  or 
obscure  phrases  concealed  in  a  mass  of  verbiage  and  often  so  printed 
as  almost  to  elude  discovery.  Unconscionable  defences  based  upon 
such  conditions  were  not  infrequent,  and  courts  seem  sometimes  to 
have  been  embarrassed  in  the  attempt  to  reconcile  the  claims  of  justice 
with  the  law  of  contracts.  Under  the  law  of  1886  companies  are  not 
permitted  to  insert  conditions  in  policies  at  their  will.  The  policies 
thev  now  issue  must  be  uniform  in  their  provisions,  arrangement,  and 
type.  Persons  seeking  insurance  will  come  to  understand  to  a  greater 
extent  than  heretofore  the  contract  into  which  they  enter.  Now,  as 
heretofore,  it  is  competent  for  the  parties  to  a  contract  of  insurance,  by 
a<yreement  in  writing  or  hy  parol,  to  modify  the  contract  after  the 
policy  has  been  issued  or  to  waive  conditions  or  forfeitures.  The 
power  of  agents,  as  expressed  in  the  policy,  may  be  enlarged  by  usage 
of  the  company,  its  course  of  business,  or  by  its  consent  express  or 
implied.  The  principle  that  courts  lean  against  forfeitures  is  unim- 
paired, and  in  weighing  evidence  tending  to  show  a  waiver  of  conditions 
or  forfeitures,  the  court  may  take  into  consideration  the  nature  of  the 
particular  condition  in  question,  whether  a  condition  precedent  to  any 
liability,  or  one  relating  to  the  remedy  merely,  after  a  loss  has  been 
incurred.  But  where  the  restrictions  upon  an  agent's  authority  appear 
in  the  policy,  and  there  is  no  evidence  tending  to  show  that  his 
powers  have  been  enlarged,  there  seems  to  be  no  good  reason  why  the 
authority  expressed  should  not  be  regarded  as  the  measure  of  his 
power  ;  nor  is  there  any  reason  wh}'  courts  should  refuse  to  enforce 
forfeitures  plainh'  incurred,  which  have  not  been  expressly  or  im- 
pliedly waived  by  the  company. 

The  acts  and  representations  of  Kelsey  upon  which  the  plaintiff 
relies  were  in  excess  of  his  authority  as  expressed  in  the  policy  and  did 
not  bind  the  defendant,  there  being  no  evidence  upon  which  it  can  be 
held  that  the  company  had  enlarged  his  powers  or  waived  the  violated 
conditions. 

These  views  lead  to  an  affirmance  of  the  judgment. 

All  concur,  Peckham  and  Maynard,  JJ.,  in  result ;  O'Brien.  J., 
not  sitting. 

Judgment  affirmed} 

1  On  the  powers  of  insurance  agents,  see  Viele  v.  Germania  Insurance  Co.,  26 
Iowa,  9,  57-64  (1868)  ;  Insurance  Co.  v.  McGookey,  33  Ohio  St.  555,  564-566  (1878) ; 
Strickland  v.  Council  Bluffs  Ins.  Co.,  66  Iowa,  466  (1885). 

On  the  assumption  that  the  assured  knows  the  terms  of  the  policy,  see  Catoir  v. 
American  Life  Insurance  and  Trust  Co.,  33  N.  J.  L.  487  (1868) ;  Morrison  u.  Insur 


BECT.  III.]  BIGGS   V.    EVANS.  355 


BIGGS   V.    EVANS. 
Queen's  Bencu  Division.     1893. 

[[1894]   1    Q.  B.  88. J 

Action  tried  by  Wills,  J.,  witliout  a  juiy. 

The  plaintiff  sued  to  recover  possession  of  a  tabletop  belonging  to 
tiie  plaintiff,  and  vvhieb  had  been  entrusted  b}'  him  to  a  person  named 
Geddes,  and  sold  by  Geddes  to  the  defendant,  under  circumstances 
which  are  fully  stated  in  the  judgment. 

Arthur  Powell,  for  the  plaintiff. 

Hamtnond  Chambers,  for  the  defendant. 

Cur.  adv.  vult. 

Wills,  J.,  delivered  judgment  as  follows  :  — 

The  plaintiff  was  the  owner  of  a  valuable  tabletop  made  of  what  is 
called  opal  matrix,  an  exceptional  article,  but  of  a  class  in  which 
jewellers  and  dealers  in  gems  might  be  expected  to  deal. 

In  the  year  188G  he  sent  it  to  the  business  premises  of  a  person 
named  Geddes  who  was  a  dealer  in  jewels  and  gems  ;  and  who  also, 
as  a  part  of  his  business,  and  as  a  known  part  of  his  business,  sold 
such  things  for  other  people  in  his  own  name,  and  having  them  in  his 
possession.  The  following  letter  gives  the  terms  of  the  deposit: 
"  April  30,  1880.  I  will  entrust  you  with  the  sale  of  my  opal  table 
upon  the  following  conditions.  That  the  table  shall  not  be  sold  to 
any  person  nor  at  any  price  without  my  authorization  is  first  obtained 
that  such  sale  shall  be  eft'ectcd.  That  the  cheque  handed  to  you  in 
payment  for  the  table  shall  be  paid  over  to  me  intact  for  me  to  pay 
into  my  bankers,  and  that  I  shall  pay  for  commission  on  the  sale  of 
the  table  one-third  of  the  balance  which  remains  after  deducting  cost 
of  stone  mounting  and  all  expenses  incurred  by  me  in  connection  with 
the  same." 

Geddes  in  the  year  1888  sold  the  table  out  and  out  to  the  defendant 
for  £200,  which  was  satisfied  as  follows  :  Geddes  asked  the  defendant 
to  pav  £170  for  him  to  Streeter.  a  West  End  jeweller,  in  satisfaction 
of  a  judgment  which  Streeter  had  obtained  against  him,  and  to  pay 
him  (Geddes)  £30  in  cash.  The  defendant  did  not  pay  Streeter  £170, 
but  gave  him  a  diamond  valued  between  him  and  Streeter  at  £120, 
and  paid  him  £50  in  cash. 

ance  Co.,  69  Tex.  353  (1887)  ;  Cleaver  '•.  Traders'  Ins.  Co.,  65  Mich.  527  (1887)  ;  s.  c. 
71  id.  414  (1888) ;  Crouse  v.  Hartford  Fire  Ins.  Co.,  79  Wis.  249  (1890). 

In  some  jurisdictions  a  provision  that  no  officer  or  agent  shall  waive  orally  the 
requirements  of  an  insurance  policy  has  been  held  to  be  too  broad.  Westchester  Fire 
Ins.  Co.  V.  Earle,  33  Mich.  143,  153  (1876);  Lamberton  v.  Connecticut  Fire  Ins.  Co., 
39  Minn.  129  (1888)  ;  Renier  v.  Dwelling  House  Ins.  Co.,  74  Wis.  89,  98-99  (1889). 
In  other  jurisdictions  the  provisioa  has  been  enforced.  Kimball  r.  Howard  Fire  Ins. 
Co.,  8  Gray.  33  (1856) ;  Walsh  v.  Hartford  Fire  Ins.  Co  ,  73  X.  Y.  5  (1878)  ;  Gladding  v. 
California  Farmers'  Mutual  Fire  Ins.  Assn.,  66  Cal.  6  (1884)  ;  Smith  v.  Niagara  Ins 
Co.,  60  Vt.  682  (1888).  — Ed. 


356  BIGGS    V.   EVANS.  [CHAP.  II. 

Geddes  shortly  afterwards  became  bankrupt  and  disappeared.  The 
tabletop  at  the  time  of  action  brought  was  in  the  possession  of 
Streeter,  who  was  holding  it  for  the  defendant.  The  plaintiff  claims 
to  recover  the  tabletop  from  the  defendant.  The  defendant  resists 
the  claim  on  two  grounds.  First,  he  says  that  at  common  law  the 
plaintiff  is  estopped  from  denying  his  title.  Secondly,  that  he  is  pro- 
tected by  the  Factors  Acts,  from  which  of  course  the  Act  of  1889  must 
be  excluded,  as  the  transaction  took  place  before  it  was  passed.  The 
claim  of  the  defendant  at  common  law  is  put  thus.  It  is  said  that  the 
plaintiff  enabled  Geddes  to  sell  the  tabletop  as  his  own,  and  that  his 
doing  so  was  within  the  scope  of  his  authority  as  it  would  be  under- 
stood by  persons  who  dealt  with  him,  and  that,  as  he  had  put  it  in 
the  power  of  Geddes  to  commit  the  fraud,  his  must  be  the  loss. 

I  think,  however,  tliat  a  fallacy  underlies  the  expression  that  he 
enabled  Geddes  to  commit  the  fraud.  In  one  sense,  and  one  only,  did 
he  do  so.  He  gave  him  the  corporal  possession  of  the  tabletop,  and 
it  was  that  possession  which  enabled  Geddes  to  sell  it  as  his  own,  or 
bj^  way  of  a  transaction  within  the  scope  of  his  apparent  authority,  as 
a  person  carrying  on  a  business  in  which  such  sales  are  habituall}' 
effected.  But  it  is  quite  clear  that  it  requires  more  to  found  the  argu- 
ment in  question.  In  one  sense  every  person  who  entrusts  an  article 
to  any  person  who  deals  in  second-hand  articles  of  that  description 
enables  him,  if  so  disposed,  to  commit  a  fraud  l)y  selling  it  as  his  own. 
A  man  who  lends  a  book  to  a  second-hand  bookseller  puts  it  into  his 
power,  in  the  same  sense,  to  sell  it  as  his  own.  A  man  who  entrusts 
goods  for  safe  custody  to  a  wharfinger,  who  also  deals  in  his  own 
goods,  or  in  other  people's  goods  entrusted  to  him  for  sale,  in  such  a 
sense  enables  him  to  commit  a  fraud  by  selling  them  to  a  customer. 
But  such  a  transaction  clearly  could  not  give  a  title  to  a  purchaser  as 
against  the  owner.  The  true  test  is,  I  take  it,  whether  the  authority 
given  in  fact  is  of  such  a  nature  as  to  cover  a  right  to  deal  witli  the 
article  at  all.  If  it  does,  and  the  dealing  effected  is  of  the  same  nature 
as  the  dealing  contemplated  bv  the  authorit}',  and  the  agent  carries  on 
a  business  in  which  he  ordinarily  effects  for  other  people  such  disposi- 
tions as  he  does  effect,  what  he  has  done  is  within  the  general  authority 
conferred,  and  any  limitations  imposed  as  to  the  terms  on  which,  or 
manner  in  which,  he  is  to  sell  are  matters  which  may  give  a  right  of 
action  by  the  principal,  but  cannot  affect  the  person  who  contracts 
•with  the  agent.  It  is  within  the  scope  of  the  authority  that  the  agent 
should  sell  the  goods  on  some  terms,  and  it  is  not  usual  in  the  trade 
to  inquire  into  the  limits  or  conditions  of  an  authority  of  that  kind  ; 
and  therefore  the  principal  is  supposed,  as  respects  other  people,  to 
have  clothed  the  agent  with  the  usual  authority.  The  foundation, 
however,  of  the  whole  thing  is  that  the  agent  should  be  authorized  to 
enter  into  some  such  transaction.  If  the  principal  has  entrusted  the 
goods  to  the  agent  for  some  other  purpose,  the  agent  is  acting  outside 
his  authority  in  selling  at  all ;  and  then  the  principal,  whose  goods 


SKGT.  III.]  BIGGS    V.    EVANS.  357 

have  been  disposed  of  without  an\-  autliorit}-  at  all  so  to  do,  is  entitled 
to  recover  tliem  in  spite  of  tlie  disposition. 

Now,  in  the  present  case,  the  letter,  taken  as  a  whole,  shows  that 
the  tabletop  never  was  intrusted  to  Geddes  to  sell.  He  was  forbidden 
in  express  terms  to  sell  without  further  authority.  He  was  not  to 
sell  the  tabletop,  but  to  keep  it  safely  for  the  plaintiff  until  a  further 
authority  was  given  ;  and  I  think  he  sold,  not  violating  instructions  as 
to  the  terms  on  which  he  should  effect  a  sale,  but  in  spite  of  a  prohi- 
bition to  sell  at  all  till  some  further  authority  should  be  given.  At 
common  law,  tlierefore,  I  think  tlie  plaintiff  is  entitled  to  succeed. 

Uo  the  Factors  Acts  protect  the  defendant?  I  think  not.  I  think  it 
is  an  essential  condition  of  the  validity  of  a  sale  protected  bN'  them  that 
the  goods  should  have  been  intrusted  to  the  agent  for  sale.  I  think  the 
Factors  Acts  would  apply,  so  far  as  relates  to  the  business  which  Geddes 
was  carrying  on,  the  nature  of  the  article  dealt  in,  and  what  was  usual  in 
such  a  trade.  But  the  defect  that  the  article  never  was  intrusted  to 
him  for  sale  is  fatal. 

I  think  there  is  another  difficulty.  In  order  to  validate  payment  to 
the  agent  under  6  Geo.  IV.  c.  94,  s.  4,  it  must  be  made  in  the  ordinary 
course  of  business,  that  is,  by  cash  or  cheque  or  bill,  as  the  case  may 
be.  I  do  not  think  that  buying  up  a  judgment  from  some  one  else, 
partly  by  delivery  of  a  diamond  of  the  defendant's  own,  can  be  con- 
sidered as  payment  in  the  ordinary  course  within  the  section.  And 
there  is  good  reason  for  it.  If  the  agent  gets  cash,  he  may  be  able  to 
hand  it  to  his  principal ;  but  if  he  does  not  get  cash,  and  there  is  only 
a  transaction  of  this  kind,  he  cannot  if  impecunious  pa}'  the  principal ; 
it  is  out  of  his  power  to  do  so. 

1  am  of  opinion,  therefore,  that  judgment  must  he  entered  for  the 
plaintiff,  with  costs.  Judgment /or  the  plaintiff } 

1  8ee  tlie  Factor.s  Acts,  cited  ante,  p.  253,  n.  (2). 

Important  case.s  on  the  Factors  Acts  are  :  Phillips  v.  Huth,  6  M.  &  W.  572  (1840)  ; 
Fuentes  v.  Montis,  L.  R.  4  C.  P.  93  (Ex.  Ch.,  1868);  Cole  v.  North- Western  Bank, 
L.  R.  10  C.  P.  354  (Ex.  Ch.,  1875) ;  Price  v.  Wisconsin  M.  &  F.  Insurance  Co.,  43 
Wis.  267  (1877);  Allen  v.  St.  Louis  Bank,  120  U.  S.  20  (1887);  Haatings  v.  Pear- 
eon,  [1893]  1  Q.  B.  62  (1892).— Ed, 


358  CORNFOOT   V.   FOWKE.  [CHAP.  II. 


SECTION   IV. 

Misrepresentation,  Fraud,  and  kindred  Topics  common  to   Torts 

and  Contracts. 

CORNFOOT  V.  FOWKE. 

Exchequer.     1840. 

[6  M.  Sr  W.  358.] 

This  was  an  action  upon  a  written  agreement,  dated  the  r2tli  of 
November,  1838,  made  between  the  plaintiff  and  the  defendant,  wliereby 
the  defendant  agreed  to  take  a  ready-furnished  house  of  the  plaintiff, 
for  the  term  of  two  years,  at  the  rent  of  £375  per  annum,  l)ut  which 
the  defendant  had  refused  to  perform. 

Plea,  that  the  plaintiff  caused  and  procured  the  defendant  to  enter 
into  the  said  agreement,  and  that  the  defendant  was  induced  to  enter 
into  the  said  agreement,  through  and  by  means  of  the  fraud,  covin,  and 
misrepresentation  of  the  plaintiff,  and  others  in  collusion  with  him. 
Verification. 

The  replication  traversed  the  plea,  upon  which  issue  was  joined. 

At  the  trial  before  Lord  Abinger,  C.  B.,  at  the  Middlesex  Sittings, 
after  last  Trinity  Term,  the  following  facts  appeared  in  evidence.  The 
defendant,  being  in  search  of  a  town  residence  for  the  purpose  of  edu- 
cating his  children,  applied  to  Mr.  F.  B.  Clarke,  No.  116  Crawford 
Street,  to  know  if  he  had  a  ready  furnished  house  to  let  in  that  neigh- 
borhood. Mr.  F.  B.  Clarke  mentioned  several  houses,  which  on  look- 
ing at  them,  the  defendant  thought  would  not  suit  him.  Subsequently 
to  this,  on  the  29th  October,  1838,  Mr.  F.  B.  Clarke  wrote  to  inform 
him  of  the  house  in  question,  belonging  to  the  plaintiff,  stating  that 
the  rent  required  was  400  guineas,  but  that  he  thought  350  guineas 
might  be  taken,  but  certainl}'  not  less. 

Upon  the  receipt  of  this  letter,  the  defendant  went  with  two  of  his 
sons  and  a  friend,  to  look  at  the  house  in  question,  No.  16  York 
Place,  Baker  Street,  and  there  saw  Mr.  Clarke,  the  father  of  F.  B. 
Clarke,  who  had  been  emplo3'ed  b}'  the  plaintiff  to  let  the  house  in 
question,  and  to  whom  persons  making  inquiries  about  the  house  had 
been  referred.  On  seeing  him  the  defendant  said  that  he  had  seen  Mr. 
Clarke,  of  Crawford  Street,  about  taking  the  house.  Mr.  Clarke  re- 
plied, that  that  Mr.  Clarke  was  his  son,  but  that  he  himself  had  the 
letting  of  the  house.  The  defendant  then  said,  "Pray,  sir,  is  there 
anything  objectionable  about  the  house  ?  "  to  which  Mr.  Clarke  replied, 
"  Nothing  whatever  ;  "  upon  which  the  defendant  said,  "  Then  I  do  not 
think  I  shall  object  to  give  350  guineas  for  the  house  ;  "  to  which  Mr. 
Clarke  replied,  that  his  son  had  made  a  mistake,  that  the  rent  was  450 


SECT.  IV.]  COKNFOOT   V.    FOWKE.  359 

guineas,  and  not  350.  The  defendant  thereupon  declined  to  give  that 
rent,  and  left  the  house.  Afterwards,  however,  in  consequence  of  some 
further  negotiation,  the  rent  was  reduced  to  £375,  and  the  defendant 
agreed  to  take  the  house  on  those  terms,  and  the  agreement,  for  the 
breach  of  which  the  action  was  brought,  was  drawn  up  by  Mr.  Clarke, 
and  signed  by  the  defendant  and  afterwards  by  the  plaintiff.  On  the 
13th  of  November,  the  day  after  signing  the  agreement,  the  defendant 
discovered  that  the  adjoining  house  to  the  plaintiff's  (which  was  a 
corner  house),  situate  in  Davies  Street,  was  a  brothel  of  the  worst 
description,  of  which  there  was  ample  evidence  given  at  the  tiial,  and 
in  consequence  of  it  persons  in  the  immediate  neigiiborliood  of  it  could 
not  let  their  lodgings,  and  were  obliged  to  leave  their  houses.  It  was 
also  proved  that  the  plaintiff  was  fulh'  aware  of  it,  and  had  consulted 
some  of  the  neighl)ors  as  to  the  best  mode  of  putting  down  the  nui-. 
sance.  The  defendant,  on  the  14th  November,  through  his  attorneys, 
Messrs.  Egan  &  Waterman,  gave  notice  of  his  determination  not  to 
take  possession  of  the  house,  because,  to  his  great  astonishment,  he 
had  discovered  that  the  next  house  to  it  was  a  house  of  ill  fame.  The 
defendant's  family,  it  appeared,  consisted  of  two  sons  and  two  daugh- 
ters, the  eldest  daughter  being  sixteen  or  seventeen  years  of  age. 

At  the  trial,  the  defendant  began,  and  having  proved  the  above 
facts,  Thesiyer,  for  the  i)lnintiff,  objected  that  the  question  put  to  Mr. 
Clarke,  the  agent,  by  the  defendant,  whether  there  was  any  olyection 
about  the  house,  must  be  considered  as  applying  to  objections  vithln 
the  house,  or  to  the  house  itself,  but  not  to  olijections  arising  from 
something  outside  and  apart  from  the  house  ;  which,  he  contended,  the 
agent  who  Avas  merely  autliorized  to  let  the  house,  had  no  authority 
from  his  principal  to  answer.  The  learned  judge  overruled  the  objec- 
tion, but  left  it  to  the  jury  to  say  whether  the  nuisance  was  such  as 
formed  a  solid  objection  to  tlie  house  ;  if  so,  and  if  they  thought  that 
when  the  defendant  used  the  expression  ''  about  the  house,"  Mr.  Clarke 
could  not  have  understood  him  in  any  other  sense  than  that  of  an 
objection  to  the  house,  they  ought  to  find  their  verdict  for  the  de- 
fendant: and  he  stated  his  opinion  to  be,  that  although  an  agent  could 
not  bind  his  principal  beyond  the  scope  of  his  authority,  it  did  not  fol- 
low that  the  principal  could  enforce  a  contract  procured  by  the  false 
representation  of  his  agent,  and  that  the  representation  made  by  the 
agent  must  have  the  same  effect  as  if  made  by  the  plaintiff  himself. 
The  jury  answered  both  questions  in  favor  of  the  defendant,  and  gave 
their  verdict  accordingly. 

Thesiffer,  in   Easter  Term  last,  obtained  a  rule  to  show  cause  why 
there  should  not  be  a  new  trial  on  the  ground  of  misdirection. 

Kelly,  Channell,  and  WiUcock,  in  Michaelmas  Term,  showed   cause. 

Thesiger  and  W.  H.  Watson,  contra.  Cur.  adv.  vidt. 

The  judges,   differing   in   opinion,   now    delivered    their  judgments 
seriatim. 


360  CORNFOOT   V.   FOWKE.  [CHAP,  II. 

RoLFE,  B.^  The  jury  found  for  the  defendant,  and  the  counsel  for 
the  plaintiff  afterwards  obtained  this  rule  nisi  to  set  aside  the  verdict, 
and  for  a  new  trial,  on  the  ground  tliat  Clarke  was  not  proved  to  have 
had  authority'  to  make  such  a  statement,  or  to  have  known  of  the  nui- 
sance in  question,  though  the  plaintitf  himself  must  have  been  aware  of 
its  existence.  The  point  for  our  decision  is,  whether  it  was  properly 
left  to  the  jur}-,  in  the  absence  of  proof  of  express  authority,  to  treat 
the  defendant  as  not  being  liable  in  this  action,  on  the  ground  that  the 
representation  of  Clarke  was  a  representation  b}'  an  agent  made  in  the 
ordinaiy  course  of  business,  and  therefore  binding  on  the  principal. 
It  was  not  shown  at  the  trial  what  was  the  precise  extent  of  the  au^ 
thority  given  to  Clarke,  but  I  will  assume  that  he  had  all  the  authority 
usually  confided  to  house  agents,  and  in  the  absence  of  express  proof 
he  cannot  be  assumed  to  have  had  more.  If  an  agent  so  authorized  sliould 
enter  into  an  agreement  to  let  the  house  of  his  principal,  making  it  part 
of  the  contract  that  the  house  was  free  from  any  particular  nuisance, 
as,  for  instance,  the  immediate  neighborhood  of  a  brothel,  it  is  obvious 
the  principal  could  only  enforce  the  contract,  or  recover  damages  for 
the  breach  of  it,  by  showing  that  he  was  able  and  willing  to  do  M^iat 
his  agent  had  contracted  to  do,  that  is,  to  let  to  the  intended  tenant 
the  house  free  from  the  particular  nuisance.  No  question  as  to  the 
extent  of  the  agent's  authority  could  in  such  a  case  arise.  The  land- 
lord insisting  on  his  agent's  contract,  must  take  it  in  solido,  with 
all  its  qualifications  and  provisions.  If,  instead  of  an  action  at  the 
suit  of  the  landlord,  the  intended  tenant  should  sue  the  intended  land- 
lord for  the  breach  of  such  a  contract,  on  the  ground  that  the  agent 
had  agreed  to  let  a  house  free  from  the  nuisance  of  a  brothel,  then  the 
question  argued  in  this  case,  as  to  the  authority  of  a  house-agent  to 
make  such  a  contract  binding  on  his  principal,  would  arise.  But  the 
present  is  not  a  question  as  to  the  power  of  an  agent  to  bind  his  prin- 
cipal b}'  contract,  but  as  to  his  power  to  affect  him  by  a  representation 
collateral  to  the  contract.  Now,  in  order  to  do  this,  it  is  essential, 
according  to  what  was  laid  down  by  Gibbs,  C.  J.,  in  Pickering  v. 
Dowson,  4  Taunt.  786,  to  bring  home  fraud  to  the  principal;  and  that 
was  certainly  not  done  in  tliis  case,  where  all  the  facts  are  consistent 
with  the  hypothesis  that  the  plaintiff  innocently  gave  no  directions 
whatever  on  the  subject,  supposing  that  the  intended  tenant  would 
make  the  necessary  inquiries  for  himself,  or  even  with  the  stronger 
supposition  that  he  expressly  desired  Clarke  not  to  make  any  represen- 
tation at  all  on  the  subject.  If  the  plaintiff,  knowing  of  the  nuisance, 
expressly  authorized  Clarke  to  state  that  it  did  not  exist,  or  to  make 
anj'  statement  of  similar  import ;  or  if  he  purposely  employed  an  agent, 
ignorant  of  the  truth,  in  order  that  such  agent  might  innocentl}'  make 
a  false  statement  believing  it  to  be  true,  and  might  so  deceive  the  party 
with  whom  he  was  dealing,  in  either  of  these  cases  he  would  be  guilty 

^  After  stating  the  case.  —  Ed. 


SECT.  IV.]  CORNFOOT   V.    FOWKE.  361 

of  a  fraud,  and  the  truth  of  the  plea  would  then,  T  think,  have  been 
established.  But  on  the  general  ground  of  the  authority  of  an  agent  to 
bind  his  principal  in  matters  within  the  scope  of  his  authority,  on 
which  the  case  was  left  to  the  jury,  I  think  that,  as  no  express  authority 
was  proved  to  have  been  given  b}^  the  plaintiff,  authorizing  Clarke  to 
make  the  representation  in  question,  the  fraud  stated  by  the  plea  is  not 
made  out,  and  consequently  the  rule  for  a  new  trial  ought  to  be  made 
absolute. 

Aldkkson,  B.  In  this  case  the  parties  have  entered  into  an  agree- 
ment which  is  in  writing,  and  to  the  terms  of  which  nothing  can  be 
added,  and  from  them  nothing  subtracted. 

The  agent  makes  a  representation  at  the  time  of  the  negotiation, 
which  is  contrar}-  to  the  fact.  If  that  were  a  fraudulent  representa- 
tion, and  in  consequence  of  that  representation  the  bargain  was  made, 
the  defendant  will  not  be  liable,  by  reason  of  the  fraud,  and  this  is  the 
point  raised  b\'  these  pleadings. 

But  here  the  representation,  though  false,  was  believed  by  the  agent 
to  be  true.  He  therefore,  if  the  case  stopped  here,  has  been  guilty  of 
no  fraud. 

The  jury  have,  however,  found  that  the  true  facts  were  known  to  the 
principal,  though  not  communicated  by  him  to  the  agent ;  and  it  is  said 
this  knowledge,  on  the  part  of  the  principal,  is  sufficient  to  establish 
the  fraud. 

If,  indeed,  the  principal  had  instructed  his  agent  to  make  the  false 
statement,  this  would  be  so,  although  the  agent  would  be  innocent  of 
any  deceit.  But  this  fact  also  fails.  It  may  perhaps  be  admitted,  that 
such  a  statement,  if  made  part  of  the  original  written  contract,  would 
be  within  the  scope  of  the  general  agency  here  shown  to  exist.  But 
the  contract  is  in  writing,  and  this  is  no  part  of  it.  And  I  think  it 
impossible  to  sustain  a  charge  of  fraud,  when  neither  principal  nor 
agent  has  committed  an}*,  — the  principal,  because,  though  he  knew  the 
fact,  he  was  not  cognizant  of  the  misrepresentation  being  made,  nor 
ever  directed  the  agent  to  make  it ;  and  the  agent,  because  though  he 
made  a  misrepresentation,  \et  he  did  not  know  it  to  be  one  at  the  time 
he  made  it,  l)ut  gave  his  answer  bona  fide. 

It  is  said  that  this  will  open  a  door  to  fraud,  by  enabling  parties  in 
the  situation  of  this  principal,  themselves  conscious  of  objections  to 
their  premises,  to  appoint  agents,  who  unconscioush'  may  make  mis- 
representations to  the  injur}-  of  third  persons.  This  does  not  follow. 
If  the  fact  could  be  shown,  it  would  be  a  fraud  on  the  part  of  the  prin- 
cipal with  such  a  motive  to  appoint  such  an  agent ;  and  the  third  party 
is  not  (except  from  his  own  imprudence)  in  any  real  danger,  for  he  may 
always  protect  himself  by  making  the  representation  a  part  of  the  con- 
tract, in  which  case  its  falsehood,  whether  fraudulent  or  not,  will  be  a 
good  defence  to  him.  For  these  reasons,  I  think  there  should  be  a  new 
trial. 


362  CORNFOOT   V.    FOWKE.  [CHAP.  II. 

Parke,  B.  In  this  case  I  concur  in  opinion  with  my  learned 
Brothers  who  have  preceded  me,  that  there  should  be  a  new  trial. 

It  is  an  action  on  an  agreement  by  the  defendant,  to  take  the  plain- 
tiff's house,  ready  furnished,  for  a  term.  The  defendant  pleads,  that  the 
agreement  was  void,  on  the  ground  of  fraud,  covin,  and  misrepresenta- 
tion of  the  plaintiff,  and  others  in  collusion  with  him.  That  plea  the 
defendant  is  to  prove. 

The  alleged  fraud  consists  in  an  untrue  representation  made  by  a 
house-agent,  employed  b}'  the  plaintiff,  in  answer  to  a  question  by  the 
defendant.  The  question  was,  whether  there  was  any  objection  to  the 
house  ;  the  answer,  that  there  was  none ;  and  it  appeared  that  the  next 
door  was  a  brothel,  and  that  the  plaintiff  knew  it  before,  but  the  agent 
did  not.  My  Lord  Chief  Baron  thought  the  plaintiff  was  bound  by  the 
agent's  representation,  and  left  the  question  to  the  jurj-,  whether  that 
representation  was  intended  to  relate  to  intrinsic  objections  only,  or 
applied  to  extrinsic  objections  also.  The  jury  found  that  it  was  meant 
and  understood  to  refer  to  both,  and  to  the  mode  in  which  that  ques- 
tion was  left  to  the  jury,  or  their  finding  upon  it,  no  objection  is  made. 

But  it  is  said,  and  I  think  justly  said,  that  it  is  not  enough  to  sup- 
port the  plea,  that  the  representation  is  untrue  ;  it  must  be  proved  to 
have  been  fraudulentl}-  made.  As  this  representation  is  not  embodied 
in  the  contract  itself,  the  contract  cannot  be  affected,  unless  it  be  a 
fraudulent  representation,  and  that  is  the  principle  on  which  the  plea 
is  founded. 

Now  the  simple  facts,  that  the  plaintiff  knew  of  the  existence  of  the 
nuisance,  and  that  the  agent,  who  did  not  know  of  it,  represented  that 
it  did  not  exist,  are  not  enough  to  constitute  fraud :  each  person  is 
innocent,  because  the  plaintiff  makes  no  false  representation,  and  the 
agent,  though  he  makes  one,  does  not  know  it  to  be  false  ;  and  it  seems 
to  me  to  be  an  untenable  proposition,  that  if  each  be  innocent,  the  act 
of  cither  or  both  can  be  a  fraud.  No  case  could  be  found  in  which  such 
a  principle  is  laid  down,  as  was  admitted  in  the  course  of  the  argu- 
ment. It  must  be  conceded,  that  if  one  employ  an  agent  to  make  a 
contract,  and  that  agent,  though  the  princi[)al  be  perfectly  guiltless, 
knowingly  commit  a  fraud  in  making  it,  not  only  is  the  contract  void, 
but  the  principal  is  liable  to  an  action.  Lord  Holt  held,  that  in  an 
action  of  deceit,  for  selling  one  sort  of  silk  for  another,  upon  evidence 
that  there  was  no  actual  deceit  in  the  defendant,  but  that  it  was  in  his 
factor  beyond  sea,  the  merchant  was  liable.  Hern  v.  Nichols,  1  Salk. 
289.  But,  in  the  present  case,  the  agent  acted  without  an}-  fraudu- 
lent intent ;  and  therefore  his  act  alone  neither  renders  the  plaintiff 
liable  to  an  action  nor  vitiates  the  contract.  It  must  also  be  admitted 
that  if  the  plaintiff  not  merely  knew  of  the  nuisance,  but  purposely 
employed  an  ignorant  agent,  suspecting  that  a  question  would  be 
asked  from  him,  and  at  the  same  time  believing  or  suspecting  that  it 
would,  b}'  reason  of  such  ignorance,  be  answered  in  the  negative,  the 
plaintiff  would  unquestionably  be  guilty  of  a  fraud,  and  the  contract 


SECT.  IV.]  CORNFOOT    V.    FOWKE.  363 

would  be  avoided  ;  for  then  the  representation  of  the  agent,  which  he 
intended  to  be  made,  would  be  the  same  as  bis  own  ;  and  his  own 
representation,  coupled  with  his  knowledge  of  its  falsehood,  would 
doubtless  be  a  fraud.  But  whether  the  facts  in  the  case  would  warrant 
an  inference  that  such  a  fraud  was  committed,  it  is  unnecessary  to 
inquire,  as,  if  they  would,  this  question  should  have  been  submitted  to 
the  jury. 

My  opinion,  therefore,  is,  that  the  case  has  not  been  properly  dis- 
posed of,  and  there  ought  to  be  a  new  trial. 

Much  discussion  took  place  on  the  argument  of  the  rule,  as  to  the 
extent  of  the  autliorit}'  delegated  to  the  agent,  —  whether  it  was  to 
make  representations  as  to  the  intrinsic  qualities  of  the  house,  or  to 
extrinsic  circumstances.  The  view  of  the  case  which  I  have  taken 
makes  it  unnecessary  to  enter  into  that  question  in  order  to  dispose  of 
this  lule  ;  and  upon  m}-  lord's  report,  I  am  unable  to  collect  exact!}' 
what  the  authority  of  the  house-agent  was.  It  certainly  was  not  to 
make  any  contract,  for  that  was  clearl}'  to  be  executed  by  both  princi- 
pals :  and  whether  he  had  authorit}'  to  make  any  representations  as  to 
the  state  and  condition  of  the  propert}',  does  not  appear  to  be  clear ; 
and  I  abstain  from  entering  into  that  question  at  all,  inasmuch  as  m}' 
opinion  proceeds  on  this,  that  such  representations,  whether  within  the 
scope  of  his  authority  or  not,  do  not  affect  a  regular  contract,  unless 
they  be  fraudulent  representations. 

Lord  Abinger,  C.  B.^  I  have  bestowed  some  consideration  on  this 
subject  since,  and  am  sorry  to  find  myself  obliged  to  differ' from  my 
Brethren  on  a  matter  that  appears  to  me,  but  for  their  opinion,  too 
plain  to  admit  of  a  doubt.  In  the  first  place,  it  is  not  correct  to  sup- 
pose that  the  legal  definition  of  fraud  and  covin  necessaril}'  includes 
an}-  degree  of  moral  turpitude.  Every  action  for  the  breach  of  a 
promise,  for  deceit,  for  not  complying  with  a  warrant}',  or  for  a  false 
representation,  is  founded  upon  a  legal  fraud,  which  is  charged  as  such 
in  the  declaration,  although  there  be  no  moral  guilt  in  the  defendant. 
The  warranty  of  a  fact  which  does  not  exist,  or  the  representation  of  a 
material  fact  contrary  to  the  truth,  are  both  said,  in  the  language  of 
the  law,  to  be  fraudulent,  although  the  party  making  them  suppose 
them  to  be  correct.  This  point,  if  it  could  be  doubted,  is  fully  estab- 
lished by  the  case  of  Williamson  v.  Allison,  2  East,  446.  That  was  a 
declaration  in  tort  for  breach  of  a  warranty,  that  twenty -four  dozen 
bottles  of  claret  were  in  a  fit  and  proper  state  to  be  exported  to  India, 
whereas  they  were  at  the  time  —  and  the  defendant  well  knew  they 
were  —  in  a  very  unfit  and  improper  state.  At  the  trial  no  evidence 
was  given  of  the  defendant's  knowledge,  and  the  verdict  being  for  the 
plaintiff,  a  motion  was  made  afterwards  for  a  new  trial,  on  the  ground 
that  the  scienter,  having  been  alleged,  ought  to  have  been  proved. 

1  The  Chief  Baron's  opinion  has  been  abbreviated  by  omitting  his  statement  of  the 
case,  and  his  discussion  of  the  authorities  as  to  notice  and  of  Schneider  v.  Heath, 
3  Camp.  506. —Ed. 


364  COKNFOOT   V.    FOWKE.  [CHAP.  IL 

But  the  Court,  after  full  discussion,  and  a  reference  to  cases  cited  in 
the  argument,  were  unanimously  of  opinion  that  the  allegation  of  the 
scienter  was  wholly  unnecessary  and  immaterial,  and  therefore  need 
not  be  proved.  Now  if  the  action  had  been  for  a  false  representation 
made  by  the  seller  of  a  material  fact,  by  reason  of  which  the  i)laintiff 
was  induced  to  bu}^,  although  the  seller  might  have  supposed  the  fact 
to  be  true,  the  same  reasoning  or  the  same  rule  would  apply ;  the 
difference  between  a  warranty  and  a  representation  is  nothing  more 
than  this,  that  where  there  is  a  written  contract  the  warranty  forms  a 
part  of  the  contract,  but  the  representation  is  collateral  to  the  con- 
tract, and  may  be  made  verbally,  though  the  contract  may  be  in  writ- 
ing :  but  if  it  be  of  a  fact  without  which  the  other  party  would  not  have 
entered  into  the  contract  at  all,  or  at  least  on  the  same  terms,  it  is 
equally  effectual,  if  untrue,  to  avoid  the  contract  or  to  give  an  action 
for  damages  on  the  ground  of  fraud.  This  is  often  illustrated  by 
actions,  which  have  been  very  common  of  late,  by  the  purchasers  of 
public-houses,  who  have  been  induced  to  buy  or  to  give  a  greater  price 
for  the  goodwill  of  the  house,  by  a  representation  of  the  extent  of  its 
business  ;  and  if  that  representation  turns  out  to  be  false,  even  though 
the  party  making  it  supposed  it  to  be  true,  and  whether  that  p:irty 
were  the  principal  or  the  agent,  it  has  never  been  doubted  that  the 
contract  is  void  and  that  the  buyer  maj'  recover  back  his  mone}' 
in  an  action  for  money  had  and  received  to  his  use.  In  the  case  of 
Hodson  V.  Williamson,  1  W.  Black.  463,  Mr.  Justice  Yates  lays  it 
down  as  a  general  proposition,  that  "  the  concealment  of  material  cir- 
cumstances vitiates  all  contracts,  upon  the  principles  of  natural  law." 
If  this  be  true,  can  it  be  doubted  that  the  false  representation  of  a 
material  circumstance  also  vitiates  a  contract?  These  principles  are 
familiar  to  ever}'  person  conversant  with  the  law  of  insurance.  But  a 
polic}'  of  insurance  is  a  contract,  and  is  to  be  governed  by  the  same 
principles  as  govern  other  contracts.  When  it  is  said  to  be  a  contract 
uberrimcefidei,  this  onl}'  means  that  the  good  faith,  which  is  the  basis 
of  all  contracts,  is  more  especialh'  required  in  that  species  of  contract 
in  which  one  of  the  parties  is  necessarily  less  acquainted  with  the 
details  of  the  subject  of  the  contract  than  the  other.  Now  nothing  is 
more  certain  than  that  the  concealment  or  misrepresentation,  whether 
by  principal  or  agent,  bj^  design  or  by  mistake,  of  a  material  fact, 
however  innocently  made,  avoids  the  contract  on  the  ground  of  a  legal 
fraud.  But  though  I  consider  this  case  as  coming  full}'  within  the 
meaning  of  a  legal  fraud,  even  if  the  agent  is  presumed  to  be  ignorant 
of  the  falsehood  of  his  misrepresentation,  I  am  very  far  from  conceding 
that  it  is  a  case  void  of  all  moral  turpitude. 

The  verdict  of  the  jury  entitles  me  to  consider  the  question  put  b}' 
the  defendant  exactly  the  same  as  if  it  had  been  put  in  this  form  :  "  Is 
there  no  brothel,  or  smith's  forge,  or  farrier's  shop,  or  other  nuisance 
80  near  the  house  as  to  make  it  objectionable?  "  to  which  the  agent 
replies,  "  I  assure  j'ou  there  is  none." 


SECT.  IV,]  COKNFOOT   V.    FOWKE.  365 

In  the  case  of  Pawson  v.  Watsou,  Cowp.  785,  Lord  Mansfield  lays  it 
down,  generally,  that  in  a  representation  to  induce  a  party  to  make  a 
contract,  it  is  equally  false  for  a  man  to  affirm  that  of  which  he  knows 
nothing,  as  it  is  to  aflirm  that  to  be  true  which  lie  knows  to  be  false. 
This  maxim  is  neither  negatived  nor  qualified  by  the  doctrine  laid  down 
in  that  class  of  cases  derived  from  Pasley  v.  t'reeman.  The  plaintiffs  in 
those  cases  sought  to  charge  a  party  with  damages  for  stating  that 
which  he  believed  to  be  true,  though  he  did  not  know  it  to  be  so,  in 
answer  to  inquiries  made  by  the  plaintiff  respecting  the  credit  of  a 
third  person.  There  the  d(;fendant  had  no  end  to  gain,  no  interest  in 
the  event,  no  motive  to  deceive  ;  he  was  not  one  of  the  dramatis  jjer- 
sonce  in  the  construction  of  any  contract.  It  does  not  follow  from  the 
principle  established  in  these  cases,  that  if  in  any  one  of  them  the  defend- 
ant had  been  the  agent  employed  by  the  purchaser  of  the  goods  to  bu}- 
them  for  him,  and  even  witliout  the  authority  of  his  principal,  had 
made  false  representations  of  his  circumstances,  to  induce  the  seller  to 
make  a  contract  to  sell  his  goods  on  credit,  the  seller  would  have  been 
bound  to  deliver  them. 

Mr.  Clarke,  the  agent,  at  least  for  letting  the  house,  has  in  this  case 
induced  the  defendant  to  enter  into  a  contract  by  a  false  representation 
by  no  means  free  from  moral  turpitude,  even  upon  the  presumption 
that  he  was  wholh'  ignorant  of  the  matter.  That  the  truth  was  known 
to  the  plaintiff  is  admitted  ;  that  he  had  an  interest  to  conceal  it,  can- 
not be  denied  ;  nor  can  it  be  denied  that  it  was  concealed  from  the 
defendant.  Whether  his  concealment  was  consistent  with  good  faith 
and  free  from  moral  turpitude,  ma}'  be  determined  b}'  a  reference  to  the 
case  put  b}'  Cicero  in  the  third  book  of  his  Treatise  De  Officiis,  which  I 
the  rather  mention,  because  the  house,  the  sale  of  which  he  puts  hj-po- 
thetically,  h\  way  of  example,  was  liable  to  an  objection  that  bears 
some  analog}-  to  the  present :  — 

"  Vendat  aedes  vir  bonus  propter  aliqua  vitia,  quae  ipse  norit,  cseteri 
ignorent :  pestilentes  sint,  et  habeantur  salubres  ;  ignoretur  in  omnibus 
cubiculis  apparere  serpentes  ;  male  materiatse,  ruinosae  :  sed  hoc  praeter 
dominum  nemo  sciat :  quaero,  si  hoc  emptoribus  venditor  non  dixerit, 
aedesque  vendiderit  pluris  multo,  quam  se  venditurum  putarit,  num  id 
injuste  an  improbe  fecerit?"  He  then  gives  the  arguments  on  both 
sides,  and  concludes  that  the  vendor  ought  not  to  have  concealed  these 
defects  in  the  house  from  the  buyer.  '••  Neque  enim  id  est  celare,  quid- 
quid  reticeas  :  sed  cum,  quod  tu  scias,  id  ignorare  emolumenti  tui  causa 
velis  eos,  quorum  intersit  id  scire."  Then  this  illustrious  moralist 
gives  his  own  opinion  of  the  moral  turpitude  of  such  a  concealment, 
for  he  says,  "  Hoc  autem  celandi  genus  quale  sit,  et  cujus  hominis, 
quis  non  videt?  certe  non  aperti,  non  simplicis,  non  ingenui,  non  justi, 
non  boni  viri ;  versuti  potius,  obscuri,  astuti,  fallacis,  malitiosi,  callidi, 
veteratoris,  vafri."  Now,  the  present  is  a  case  in  which  the  fraudulent 
concealment  of  a  material  fact  by  the  principal,  and  the  false  represen- 
tation of  the  agent,  combine  to  constitute  a  suflScient  degree  of  fraud, 


366  CORNFOOT   V.   FOWKE,  [CHAP.  II. 

even  morall}"  speaking,  to  sustain  the  defendant's  plea,  that  he  was 
induced  b}'  fraud,  covin,  and  false  representation  to  sign  the  contract. 
If,  instead  of  a  brothel  next  door  to  the  house,  some  person  had  died 
of  the  plague  in  one  of  the  chambers  the  week  before  it  was  let,  the 
case  would  be  exactly  similar  to  that  put  by  Cicero  of  the  cedes  jyesti- 
lentes.  According  to  the  concession  of  Mr.  Thesiger,  that  objection 
arising  within  the  house,  the  contract,  under  the  circumstances  of  this 
case,  would  be  void.  But  according  to  the  argument  of  my  learned 
brethren,  this  intrinsic  objection  would  have  made  no  difference  ;  the 
agent  not  being  acquainted  with  the  fact,  and  the  principal  being  no 
part}'  to  the  representation.  But  it  appears  to  me  that  nothing  can  be 
more  plain  than  that  the  principal,  though  not  bound  by  the  represen- 
tation of  his  agent,  cannot  take  advantage  of  a  contract  made  under 
the  false  representation  of  an  agent,  whether  that  agent  was  authorized 
by  him  or  not  to  make  such  representation. 

Put  the  ordinary  ease  of  a  servant  employed  to  sell  a  horse,  but 
expressly  forbid  to  warrant  him  sound.  Is  it  contended  that  the  buyer, 
induced  by  the  warranty  to  give  ten  times  the  price  which  he  would 
have  given  for  an  unsound  horse,  when  he  discovers  the  horse  to  be 
unsound,  is  not  entitled  to  rescind  the  contract?  This  would  be  to  say, 
that  though  the  principal  is  not  bound  by  the  false  representation  of  an 
agent,  yet  he  is  entitled  to  take  advantage  of  that  false  representation, 
for  the  purpose  of  obtaining  a  contract  beneficial  to  himself,  which  he 
could  not  have  obtained  without  it.  I  own  that  it  never  had  occurred 
to  me  to  doubt,  upon  principle  or  upon  the  authorit}'  of  decided  cases, 
that  the  knowledge  of  the  principal  was  the  knowledge  of  the  agent, 
and  the  knowledge  of  the  agent  the  knowledge  of  the  principal.  .  .  . 

Where  tlie  owner  of  a  house  or  of  a  farm  employs  an  agent  to  nego- 
tiate and  settle  the  terms  of  a  contract  for  letting  the  one  or  the  other, 
more  especially  when  he  has  referred  to  that  agent  for  particulars,  can 
it  be  doubted  that  the  party  treating  with  that  agent  is  entitled  to  con- 
sider him  as  the  proper  source  of  all  information  that  it  mav  be  ma- 
terial to  him  to  possess  with  a  view  to  making  his  contract?  Or  that 
for  the  purpose  of  such  contract,  any  representation,  material  to  the 
subject  of  inquiry',  must  be  considered  as  if  made  by  the  principal? 
Put  the  case,  that  Mr.  Clarke  the  agent  had  been  full}*  apprised  of  this 
objection  to  the  house,  but  that  in  the  raultiplicit}'  of  his  engagements 
he  had  sent  a  clerk  to  represent  him,  and  that  the  clerk,  in  ignorance, 
had  made  the  representation  in  question  :  would  the  argument  have 
been  urged  in  that  case,  that  there  was  no  fraud  in  the  clerk  because 
he  was  ignorant,  and  none  in  the  master  because  he  did  not  make  the 
representation?  But  what  other  relation  exists  between  master  and 
servant,  as  far  as  third  persons  are  concerned,  but  that  of  principal 
and  agent?  If  the  clerk  of  a  merchant  or  tradesman  offer  goods  for 
sale  to  a  customer,  with  a  misrepresentation  ver}'  material  to  their 
value,  which  representation  his  master  knows  to  be  false,  but  the  clerk 
supposed  to  be  true,  whereupon  the  customer  agrees  to  give  double  the 


SECT.  IV.]  CORNFOOT   V.    FOWKE.  367 

real  value  of  the  goods,  is  the  customer  bound  to  take  and  pay  for  the 
goods,  because  the  clerk  only  represented  a  fact  which  he  did  not  know 
to  be  false?  or  is  not  the  contract,  for  the  purpose  of  trying  its  validity 
against  the  purchaser,  to  be  dealt  with  in  the  same  way  as  if  tiie  mas- 
ter had  made  the  representation?  Qui  fdcit  per  aliian  facit  per  se. 
And  what  would  be  the  condition  of  men,  if,  in  every  case  of  a  treaty 
made  with  an  agent,  the  party  was  under  the  necessity  of  submitting  to 
suffer  b}'  the  misrepresentations  of  that  agent  about  the  subject-matter, 
because  he  had  not  first  ascertained  the  extent  of  the  agent's  powers? 

In  transactions  that  are  of  a  ver}-  unusual  character,  and  where 
power  is  rarely  granted  to  an  agent  to  bind  his  principal,  except  within 
very  strict  limits,  it  ma}'  be  a  ver}'  necessary  caution  in  the  party 
dealing  with  the  agent  to  know  first  the  extent  of  his  authoritj' ;  but  in 
so  ordinar}'  a  transaction  as  that  of  letting  a  readj-furnished  house, 
where  the  principal  refers  to  a  house-agent  for  particulars,  and  leaves 
it  to  him  to  procure  a  tenant,  —  who  would  think  of  suspending  the 
treat}',  in  order  to  write  to  the  landlord  in  the  countrj'  to  make  inquir- 
ies, lest  the  agent  might  not  have  full  power  or  information  to  answer 
them  ?  Nevertheless  the  argument  for  the  plaintiff  is  mainly  founded 
upon  a  conjecture,  that  the  agent  might  possibly  have  had  no  authority 
to  make  a  representation  of  this  kind,  upon  which  it  is  contended  that 
it  must  not  be  presumed  that  he  had  such  an  authority  without  proof, 
and  that  if  he  had  no  such  authority  he  could  not  bind  his  principal. 

I  grapple  with  this  argument,  first,  b}-  denying  the  propriety  of  the 
conjecture  upon  which  it  is  founded.  I  maintain  that  a  man  who 
employs  his  agent  to  let  his  house  or  farm,  or  who  refers  inquirers  to 
an  agent  for  particulai's  upon  an}'  subject,  must  be  presumed,  if  the 
contrary  be  not  proved,  to  have  given  that  agent  full  authority  to  com- 
municate all  information  that  is  connected  with  the  subject,  and  that  it 
may  be  important  to  the  inquirer  to  know.  But  I  also  deny  the  con- 
clusion, as  far  as  it  applies  to  this  case.  Let  us  simplify  the  case,  by 
assuming  that  the  agent  was  expressly  prohibited  from  giving  any  in- 
formation, except  as  to  the  amount  of  rent  demanded,  and  strictly 
charged  to  refer  the  inquirers  to  the  principal  for  all  other  matters  ; 
nevertheless  the  agent,  without  knowing  anything  of  the  facts,  thinks 
fit  to  answer  to  inquiries  upon  every  subject  upon  which  it  may  be 
material  to  the  tenant  to  be  truly  informed  ;  to  make  such  false  repre- 
sentations as  induce  the  tenant,  without  hesitation,  to  agree  to  take  the 
house  at  the  rent  proposed  :  whereas  no  man  in  his  senses  would  have 
taken  the  house  at  such  a  rent,  or  perhaps  at  any  rent,  had  the  facts 
been  truly  represented.  Now,  if  the  tenant  should  afterwards  bring 
an  action  of  deceit  for  a  false  representation,  I  will  not  stop  to  inqnire 
whether  the  landlord  would  be  liable,  upon  his  proving  that  he  ex- 
pressly prohibited  his  agent  from  answering  any  question  ;  but  I  will 
say  that  if,  in  such  an  action,  he  might  defend  himself  upon  the  ground 
of  want  of  authority  in  his  agent,  it  by  no  means  follows  that  he  could 
insist  upon  enforcing  the  contract  against  the  tenant  who  renounced  it. 


368  GRANT   V.    NORWAY.  [CHAP.  II. 

In  other  words,  as  I  have  before  said,  it  does  not  follow,  that  beeause 
he  is  not  bound  b}'  the  representation  of  an  agent  without  authority,  he 
is  therefore  entitled  to  bind  another  man  to  a  eontract,  obtained  by  the 
false  representation  of  that  agent.  It  is  one  thing  to  say  that  he  may 
avoid  a  contract  if  his  agent,  without  his  authority,  has  inserted  a 
warranty  in  the  contract ;  and  another  to  say,  tliat  he  may  enforce  a 
contract  obtained  by  means  of  a  false  representation  made  b}'  his 
agent,  because  the  agent  had  no  authority. 

Upon  these  grounds,  which  I  own  seem  to  me  ver}'  clear,  I  am  of 
opinion,  that  for  the  purpose  of  this  plea  the  representation  of  the 
agent  is  that  of  the  principal ;  and  the  falsehood  of  that  representation 
to  the  knowledge  of  the  principal,  and  the  concealment  of  a  material 
fact  to  the  defendant,  are  sufficient  to  sustain  the  plea.  .  .  . 

Mule  absolute  for  a  new  trial} 


GRANT  AND  OTHERS  V.  NORWAY  and  others. 
Common  Pleas.      1851. 

[10  C.  B.  665.] 

This  was  an  action  upon  the  case  hy  the  indorsees  of  a  bill  of 
lading,  against  the  owners  of  a  vessel,  to  recover  the  amount  of  ad- 
vances made  b}'  the  former  upon  the  bills  of  lading,  the  goods  never 
having  in  fact  been  shipped. 

The  declaration  stated,  that,  on  the  17th  of  April,  1846,  the  defend- 
ants were  possessed  of  a  certain  ship  or  vessel  called  the  Belle^  b'^'^g 
in  the  river  Hooghle}',  at  Bengal,  being  then  bound  for  London,  for  the 
carriage  of  goods  and  merchandise,  to  be  shipped  on  board,  for  freight 
to  be  therefor  paid  to  the  defendants  ;  that  thereupon  the  defendants 
gave  to  Messrs.  Biale,  Koch,  &,  Co.,  being  merchants  and  traders 
then  in  credit  and  carrying  on  business  in  Calcutta,  a  bill  of  lading, 
signed  bj'  the  master  of  the  said  ship,  who  was  then  and  there  the 
servant  and  agent  of  the  defendants  in  that  behalf,  and  purporting  to 
state,  in  the  name  of  the  said  master,  that  Biale,  Koch,  &  Co.  had 
shipped,  in  good  order,  in  the  said  ship,  twelve  bales  of  silk,  marked 
and  numbered  as  in  the  margin  of  tiie  said  bill  of  lading,  and  that  the 
same  were  to  be  delivered  in  good  condition,  &c..  unto  order  or  assigns, 
to  wit,  to  the  order  of  Biale,  Koch,  &  Co.,  he  or  the}'  paying  freight  at 

^  There  are  comments  on  this  case  in  Wilson  r.  Fuller,  3  Q.  B.  68,  1009  (Ex.  Ch., 
1843) ;  Fitzsimmons  ;•.  Jo.^lin,  21  Vt.  129,  139-141  (1849) ;  Feret  v.  Hill,  15  C.  B.  207 
(1854);  National  Exchange  Co.  v.  Drew,  2  Macq.  103,108-109,  144-145  (1855); 
Wheelton  v.  Hardisty,  8  E.  &  B.  232,  270-271  (1857) ;  Barwick  r.  English  Joint  Stock 
Bank,  post,  p.  412  (Ex.  Ch.,  1867) ;  Ludgater  v.  Love,  44  L.  T.  Rep.  n.  s.  694  (C.  A., 
1881).  — Ed. 


SECT.  lY.J  GRANT   V.   NOKWAY.  369 

£5  per  tou,  &c. ;  that  in  the  margin  of  the  said  bill  of  lading  were 
certain  marks  and  numbers,  purporting  to  relate  to  the  said  goods; 
that,  by  the  custom  of  merchants,  bills  of  lading  are  commonly  pledged 
and  deposited  by  the  holders  with  others  as  a  security  for  the  payment 
of  money,  as  the  defendants  well  knew ;  that  the  defendants,  by  such 
delivery  of  the  said  bill  of  lading,  enabled  Biale,  Koch,  &  Co.,  to 
deposit  the  said  bill  of  lading  with  other  persons  as  a  security  for  the 
payment  of  money,  and  that,  in  fact,  Biale,  Koch,  &  Co.  afterwards 
indorsed  the  said  bill  of  lading  to,  and  deposited  the  same  with,  the 
plaintiffs  as  a  security  for  the  payment  of  a  large  sum  of  money, 
to  wit,  the  sum  of  £1,684,  being  the  amount  of  an  unpaid  bill  of 
exchange  of  which  the  plaintiffs,  at  the  request  of  Biale,  Koch,  &  Co., 
then  became  and  were  the  indorsees  and  bona  fide  holders  for  value, 
and  of  which  Biale,  Koch,  &  Co.  were  the  drawers,  and  which  bill  of 
exchange,  bearing  date  the  18th  of  April,  1840,  was  by  them  the  said 
Biale,  Koch,  &  Co.  drawn  upon  Messrs.  Johnson,  Cole,  &  Co.,  London, 
and  whereby  they  requested  the  drawees,  at  ten  months'  date,  to  pay 
to  them  the  said  drawers,  or  order,  the  said  sum  of  £1,684;  and  to 
place  the  same,  with  or  without  advice,  to  account  of  shipments  of  silk 
per  Belle,  and  rice^^er  Castle  Eden.,  and  the  said  Biale,  Koch,  &  Co. 
then  indorsed  the  said  bill  of  exchange  to  the  plaintiffs ;  that  the  plain- 
tiffs were  induced  by  Biale,  Koch,  &  Co.  to  become  the  indorsees  and 
holders  of  the  said  bill  of  exchange,  and  to  give  value  for  the  same  to 
the  amount  of  £1,684,  by  the  deposit  of  the  said  bill  of  lading,  but  for 
which  the\'  would  not  have  given  value  nor  become  indorsees  and 
holders  thereof;  that  the  plaintiffs,  confiding  in  the  truth  of  the  said 
bill  of  lading,  and  believing,  by  reason  of  its  contents,  that  the  goods 
therein  described  had  been  and  were  shipped  on  board  the  said  ship, 
deliverable  under  the  said  bill  of  lading  to  the  order  of  Biale,  Koch, 
&  Co.,  consented  to,  and  did,  give  value  for  the  said  i)ill  of  exchange  ; 
that,  if  true,  the  goods  mentioned  in  the  bill  of  lading  would  have  been, 
according  to  the  custom  of  merchants,  deliverable  to  the  plaintiffs  as 
holders  thereof;  that  the  said  ship  sailed,  and  arrived  in  London 
on  &c.,  but  did  not  convey  or  deliver  the  said  supposed  goods  ;  that 
the  said  goods  in  the  said  bill  of  lading  mentioned  never  were  shipped 
in  and  upon  the  said  ship  ;  that  the  said  bill  of  exchange  was  after- 
wards, when  the  same  became  due,  duly  presented  for  payment  to  the 
drawees,  and  dishonored,  and  that  the  plaintiffs  were  still  holders  thereof 
for  value,  and  unable  to  procure  payment  of  the  said  bill  of  exchange, 
and  the  money  for  securing  the  payment  of  which  the  said  bill  of 
lading  was  so  deposited,  still  remained  due,  and  the  plaintiffs  were 
unable  to  procure  pa^'ment  thereof;  and  that,  by  reason  of  the 
premises,  and  of  the  misconduct  of  the  defendants  as  aforesaid,  the 
plaintiffs  had  lost  and  been  de[)rived  of  the  said  money  for  the  securing 
the  payment  of  which  the  said  bill  of  lading  was  so  deposited,  to  wit, 
the  said  sum  of  £1,684,  in  the  said  bill  of  exchange  mentioned. — to 
the  plaintiffs'  damage,  &c. 

24 


370  GEANT   V.    NOEWAY.  [CHAP.  11. 

Pleas, — first,  not  guilty, — secondly,  that  the  said  ship  was  not 
bound,  as  in  the  declaration  mentioned,  for  the  carriage  of  goods,  &c., 
for  freight,  &c.,  as  in  the  declaration  mentioned,  —  thirdly,  that  the 
said  bill  of  lading  was  not  signed  by  the  master  of  the  said  ship,  in 
manner  and  form  as  in  the  declaration  mentioned,  —  fourthly,  that  the 
said  master  was  not  the  servant  or  agent  of  the  defendants  in  that 
behalf,  in  manner  and  form  as  in  the  declaration  mentioned,  —  fifthly, 
that  the  defendants  did  not  enable  the  said  persons  in  the  declaration 
mentioned,  to  deposit  the  said  bill  of  lading  with  other  persons  as  a 
security  for  the  payment  of  money,  in  manner  and  form  as  in  the  declara- 
tion alleged,  —  sixthly,  that  the  defendants  did  not  deliver  to  the  said 
persons  in  the  declaration  mentioned  the  said  bill  of  lading  therein 
mentioned,  in  manner  and  form  as  in  the  declaration  alleged. 

Upon  these  pleas  the  plaintiffs  joined  issue. 

At  the  trial,  before  Wilde,  C.  J.,  at  the  sitting  at  Guildhall  after 
Trinity  terra,  1849,  the  jury  found  a  verdict  for  the  plaintiffs  on  the 
issues  joined  upon  the  second  and  third  pleas  :  and,  as  to  the  residue 
of  the  issues,  a  special  verdict  was  found,  stating  in  substance  as 
follows  :  — 

The  plaintiffs,  during  the  year  1846,  and  thence  hitherto,  had  carried 
on  business  as  merchants,  at  Calcutta,  under  the  firm  of  Gladstone 
&  Co. 

During  the  month  of  April,  184G,  the  defendants  were  possessed  of, 
and  owners  of,  the  £eUe,  then  lying  in  the  river  Hooghle}',  at  Calcutta, 
bound  for  London,  by  charter-party  for  the  conveyance  of  goods  for 
freight ;  Henry  Tillman  being  the  master  appointed   b}'  the  defendants. 

On  the  17th  of  April,  in  that  year,  Henry  Tillman,  being  such 
master,  and  professing  to  act  as  such,  signed  and  delivered  to  Biale, 
Koch,  &  Co.,  in  the  declaration  mentioned,  being  merchants  and 
traders  then  in  credit  and  carrying  on  business  in  Calcutta,  a  bill  of 
lading,  in  the  usual  form,  as  follows,  and  numbered  in  the  margin  :  — 

"  Shipped,  by  the  grace  of  God,  in  good  order  and  well  conditioned, 
upon  the  good  ship  Belle,  whereof  is  master  for  this  present  voyage 
Henry  Tillman,  and  now  riding  at  anchor  in  the  Hooghley,  and  bound 
for  London,  twelve  bales  of  silk,  numbered  as  in  the  margin,  to  be 
delivered  in  the  like  good  order  at  London,  the  act  of  God,  the  Queen's 
enemies,  &c.,  excepted,  unto  order  or  assigns,  he  or  they  paying  freight 
£5  per  ton,  &c.  In  witness  whereof  the  said  master  hath  affirmed  to 
three  bills  of  lading,  all  of  this  tenor  and  date,  the  one  of  which  being 
accomplished,  the  other  two  to  stand  void.  Dated  this  17th  day  of 
April,  1846.     Contents  unknown. 

(Signed)     "  H.  Tillman." 

The  bill  of  lading  was  indorsed  "  Biale,  Koch,  &  Co." 

By  the  custom  of  merchants,  bills  of  lading  are  commonly  pledged 
and  deposited  b3'  the  holders  with  others  as  a  securit_y  for  the  payment 
of  mone}-. 

B\'  such  delivery  of  the  said  bill  of  lading,  Biale,  Koch,  &  Co.  were 


SECT.  IV.]  GRANT   V.    NORWAY.  371 

enabled  to  pledge  and  deposit  the  said  hill  of  lading  with  other  persons 
as  a  security  for  the  payment  of  money:  and,  on  the  18th  of  Ai)ril, 
1846,  the  plaintiff's  purchased  from  Biale,  Koch,  &  Co.,  who  then 
indorsed  and  delivered  to  tlie  plaintiff's  for  full  value,  the  bill  of 
exchange  for  £l,G84  in  the  declaration  mentioned,  upon  the  terms  tliat 
the  payment  of  the  amount  of  the  bill  of  exchange  should  be  secured 
\)y  the  deposit  of  tlie  said  bill  of  lading,  —  which  they  also  indorsed  to 
the  plaintiffs,  and  deposited  with  them  for  that  purpose. 

The  bill  of  exchange  was  drawn  by  Biale,  Koch,  &  Co.,  and  requested 
the  drawees  to  pay  £1,684  at  ten  months,  to  the  drawers,  or  order,  and 
to  place  the  same,  with  or  without  advice,  to  account  of  shipments  of 
raw  silk  ^>er  Jielle,  and  rice  per  Castle  Eden. 

The  bill  was  accepted,  payable  at  No.  6  Great  Winchester  Street, 
"on  delivery  of  the  shipping  documents  against  which  this  bill  is 
drawn." 

The  plaintiffs  were  induced  hy  Biale,  Koch,  &  Co.  to  give  value  for, 
and  to  become  the  indorsees  of,  the  bill  of  exchange,  by  the  deposit  of 
the  bill  of  lading.  If  true,  and  if  the  goods  had  really  been  shipped, 
the  bill  of  lading  would  have  been  an  available  security  to  the  plaintiffs, 
of  the  value  of  £780,  and  the  goods  deliverable  to  them  as  holders  of 
the  bill  of  lading. 

The  vessel  sailed,  and  arrived  in  London :  but  the  goods  were 
never  shipped  ;  and  the  contents  of  the  bill  of  lading  were  untrue. 

The  bill  of  exchange,  of  which  the  plaintiffs  were  still  holders,  had 
been  presented  for  payment,  and  was  still  due,  and  also  the  £1,684,  for 
securing  the  payment  of  which  to  the  extent  of  £780,  the  bill  of  lading 
was  deposited. 

The  goods  to  be  shipped  on  board  at  Calcutta  were  to  be  shipped  in 
pursuance  of  a  charter-party  entered  into  in  London,  on  the  24th  of 
September,  1845,  between  the  defendants  and  Biale,  Koch,  &  Co.  ; 
and  the  vessel  was  lying  in  the  Hooghley,  and  bound  for  London,  as 
before  mentioned,  in  pursuance  of  the  charter-part}-,  and  in  the  course 
of  the  voyage  mentioned. 

The  case  was  argued  in  the  last  term,  before  Jervis,  C.  J.,  CRESS■\^'ELL, 
J.,  and  Williams,  J. 

Croirder  (with  whom  were  Chcmnell^  Serjt.,  and  J3oviU),  for  the 
plaintiffs. 

Butt  (with  whom  was  Cleashy),  contra. 

Croicder,  in  reply.^  Cur.  adv.  vult. 

1  In  the  course  of  the  arguments,  which  were  very  elaborate,  the  judges  iuterposed 
frequent  questions  and  comments,  some  of  which  are  here  given. 

The  argument  for  the  plaintiHs  was  interrupted  thus  :  — 

Jervis,  C.  J. :  "  If  the  master's  authority  is,  to  sign  bills  of  lading  only  upon 
receiving  the  goods  on  board,  the  owner  does  not  hold  him  out  as  his  agent  until  he 
receives  the  goods."  Cresswell,  J. :  "  If,  as  you  say,  the  authority  of  the  master  is 
not  a  special  authority,  but  a  general  authority  which  is  conferred  upon  him  by  law, 
the  extent  of  that  authority  must  be  known  to  all  persons  who  take  bills  of  lading." 
The  same  judge  (commenting  on  Hern  v.  Nichols,  ante,  p.  90)  :  "  There,  the  factor 


372  GRANT   V.    NORWAY.  [CHAP.  IL 

Jervis,  C.  J.,  now  delivered  the  judgment  of  the  court. 

This  ease  was  argued  before  uiy  Brothers  Cresswell  and  WiUianis 
and  myself.  It  arises  upon  a  speeial  verdict,  and  presents  a  question 
of  considerable  importance,  both  to  those  who  take  bills  of  lading 
on  the  faith  of  their  representing  property  which  passes  by  the  transfer 
of  them,  and  to  the  shipowner,  whom  it  is  attempted  to  bind  b}'  all 
bills  of  lading  which  his  captain  may  think  fit  to  sign.  The  point  pre- 
sented by  the  several  pleas  is  substantiall}-  one  and  the  same,  viz. 
whether  the  master  of  a  ship,  signing  a  bill  of  lading  for  goods  which 
have  never  been  shipped,  is  to  be  considered  as  the  agent  of  the  owner 
in  that  behalf,  so  as  to  make  the  latter  responsible.  The  authority'  of 
the  master  of  a  ship  is  ver^'  large,  and  extends  to  all  acts  that  are 
usual  and  necessary  for  the  use  and  enjoyment  of  the  ship  ;  but  is 
subject  to  several  well-known  limitations.  He  ma3'  make  contracts  for 
the  hire  of  the  ship,  but  cannot  varj-  that  which  the  owner  has  made. 
He  ma}-  take  up  mone}'  in  foreign  ports,  and,  under  certain  circum- 
stances, at  home,  for  necessar}'  disbursements,  and  for  repairs,  and 
bind  tlie  owners  for  repayment ;  but  his  authorit}'  is  limited  by  the 
necessit}-  of  the  case,  and  he  cannot  make  them  responsible  for  money 
not  actually-  necessar}'  for  those  purposes,  although  he  ma}'  pretend 
that  it  is.  He  ma}'  make  contracts  to  carr}-  goods  on  freight,  but 
cannot  bind  his  owners  by  a  contract  to  carry  freight  free.  So,  with 
regard  to  goods  put  on  board,  he  ma}'  sign  a  bill  of  lading,  and 
acknowledge  the  nature  and  quality  and  condition  of  the  goods. 
Constant  usage  shows  that  masters  have  that  general  authority  ;  and, 
if  a  more  limited  one  is  given,  a  party  not  informed  of  it  is  not 
affected  by  such  limitation.  "The  master  is  a  general  agent  to 
perform  all  things  relating  to  the  usual  employment  of  his  ship  : 
and  the  authority  of  such  an  agent  to  perform  all  things  usual  in 
the  line  of  business  in  which  he  is  employed  cannot  be  limited  by  any 

entered  into  a  contract  with  the  plaintiff  for  the  employer.  Here,  you  are  a  step 
further  off.  You  say,  —  your  agent,  with  whom  I  made  no  contract,  has  enabled 
a  man  with  whom  I  did  contract,  to  cheat  me."  The  same  judge  again :  "  Suppose 
this  were  not  the  case  of  an  indorsee  of  a  bill  of  lading,  but  that  of  the  owner  of  the 
^oods,  who  really  sent  them  by  a  carrier  for  the  purpose  of  their  being  shipped,  and 
the  master  gives  a  receipt  to  the  owner  of  the  goods,  but  the  carrier  fails  to  deliver 
them  :  in  that  case,  the  owner  would  be  induced  by  the  captain's  receipt  to  abstain 
from  pursuing  the  thief  :  but,  is  the  indorsee  of  the  bill  of  lading,  under  the  circum- 
stances supposed,  in  the  same  position  as  the  original  owner  of  the  goods  ?  " 

The  argument  for  the  defendants  was  interrupted  thus  :  — 

Cresswell,  J. :  "  Mr.  Crowder  says,  true  it  is  that  it  is  well  known  that  the 
captain's  real  authority  is  to  sign  bills  of  lading  only  for  goods  that  are  actually  put 
on  board  the  ship  :  but,  he  says,  there  is  an  apparent  authority  to  sign  all  bills  of 
lading  without  restriction.  Try  that  by  the  test  of  a  partner's  authority  to  sign  bills 
of  exchange  for  the  purpose  of  the  trade.  One  draws  or  accepts  a  bill  in  fraud  of  his 
partner,  — what  answer  does  this  afford  to  a  bona  Jide  holder  for  value  ?  "  The  same 
judge  (commenting  on  Howard  v.  Tucker,  1  B.  &  Ad.  712):  "Had  the  captain 
authority  to  give  a  bill  of  lading  acknowledging  that  freight  had  been  paid,  when  in 
fact  it  had  not  ?  "  —  Ed. 


SECT.  IV.]  GRANT   V.    NORWAY.  373 

private  order  or  direction  not  known  to  the  part}'  dealing  with 
him."     Smith's  Mercantile  Law,  p.  59. 

Is  it  then,  usual,  in  the  management  of  a  ship  carr3ing  goods  on 
freight,  for  the  master  to  give  a  bill  of  lading  for  good.s  not  put  on 
board  ?  for,  all  parties  concerned  have  a  right  to  assume  tliat  an  agent 
has  authority  to  do  all  which  is  usual.  The  very  nature  of  a  bill 
of  lading  shows  that  it  ouglit  not  to  be  signed  until  goods  are  on 
board  ;  for,  it  begins  as  describing  them  as  shipjyed.  It  was  not  con- 
tended that  such  a  course  is  usual.  In  Lickbarrow  v.  Mason,  BuUer,  J., 
says,  2  T.  R.  75  :  "A  bill  of  lading  is  an  acknowledgment  by  the 
captain,  of  having  received  the  goods  on  board  his  ship:  therefore, 
it  would  be  a  fraud  in  the  captain  to  sign  such  a  bill  of  lading,  if  he 
had  not  received  the  goods  on  board ;  and  the  consignee  would  be 
entitled  to  his  action  against  the  captain  for  the  fraud." 

It  is  not  contended  that  the  captain  had  any  real  authority  to  sign 
bills  of  lading,  unless  the  goods  had  been  shipped ;  nor  can  we 
discover  any  ground  upon  which  a  party  taking  a  bill  of  lading  by 
indorsement,  would  be  justified  in  assuming  that  he  had  authority  to 
sign  such  bills,  whether  the  goods  were  on  board  or  not. 

If,  then,  from  the  usage  of  trade,  and  the  general  practice  of  ship- 
masters, it  is  generally  known  that  the  master  derives  no  such  author- 
ity from  his  position  as  master,  the  case  may  be  considered  as  if  the 
part}'  taking  the  bill  of  lading  had  notice  of  an  express  limitation  of 
the  authority ;  and.  in  that  case,  undoubtedly,  he  could  not  claim 
to  bind  the  owner  by  a  bill  of  lading  signed,  when  the  goods  therein 
mentioned  were  never  shipped.  It  would  resemble  the  case  of  goods 
or  money  taken  up  by  the  master  under  pretence  that  they  were  wanted 
for  the  ship,  when  in  fact  they  were  not ;  or  a  bill  of  exchange 
accepted  or  indorsed  per  procuration,  when  no  such  agency  existed  ; 
Alexanders.  Mackenzie,  6  C.  B.  766.  The  words  '•'•  per procuratioji" 
give  notice  to  all  persons  that  the  agent  is  acting  under  a  special 
and  limited  authority ;  and  therefore  the  party  taking  such  a  bill 
has  to  establish  the  existence  of  the  authority  ;  it  is  not  enough  to 
show  that  other  bills  similarly  accepted  or  indorsed  have  been  paid, 
although  such  evidence,  if  the  acceptance  were  general,  by  an  agent  in 
the  name  of  the  principal,  would  be  evidence  of  a  general  authority  to 
accept  in  the  name  of  the  principal.  So,  here,  the  general  usage  gives 
notice  to  all  people  that  the  authority  of  the  captain  to  give  bills 
of  lading  is  limited  to  such  goods  as  have  been  put  on  board  ;  and 
a  party  taking  a  bill  of  lading,  either  originally,  or  by  indorsement,  for 
goods  which  have  never  been  put  on  board,  is  bound  to  show  some  par- 
ticular authority  given  to  the  master  to  sign  it. 

There  is  little  to  be  found  in  the  books  on  this  subject.  It  was 
discussed  in  Berkley  v.  AVatling,  7  Ad.  &  E.  29  ;  2  N.  &  P.  178. 
That  case  was  decided  on  another  point :  but  Littledale,  J.,  stated,  that 
in  his  opinion,  a  bill  of  lading  is  not  conclusive  upon  the  shipowner. 


374  UDELL   V.    ATHERTON.  [CHAP.  IL 

For  these  reasons,  we  are  of  opinion  tliat  the  issues  should  be 
entered  for  the  defendants,  and  that  the  defendants  are  entitled  to 
judgment.  Judgment  f 07'  the  defendants,^ 


UDELL   V.    ATHERTON. 

Exchequer.     1861. 

[7  H.  4'  N.  172.] 

The  first  count  of  the  declaration  stated,  that  the  defendants  were 
possessed  of  a  certain  log  of  mahogany  which  they  well  knew  to  be 
rotten  and  defective  ;  yet  that  they,  by  fraudulently  concealing  from 
the  plaintiff  that  the  said  log  was  rotten  and  defective,  induced  the 
plaintiff  to  buy  the  same  for  moi'e  than  its  value,  to  wit,  for  £99,  and 
to  accept  two  bills  of  exchange,  payable  to  the  defendants'  order  for 
the  said  sum,  the  said  log  being  worth  much  less  than  the  said  sum. 
Averments :  that  the  plaintiff  hath  been  forced  to  pay  one  of  the  bills 
and  will  be  forced  to  pay  the  other,  and  by  reason  of  the  premises  hath 
sustained  loss.  —  Second  count :  that  the  defendants  by  falsely  and 
fraudulently  representing  to  the  plaintiff  that  a  certain  log  of  mahogany 
was  a  sound  and  perfect  log  of  mahogany,  and  that  the  same  was 
reasonably  worth  in  the  trade  at  the  rate  of  3s.  a  foot,  induced  the 
plaintiff  to  buy  the  said  log  at  the  said  rate.  Averments  :  that  the  said 
log  was  not  worth  3s.  a  foot,  and  that  the  plaintiff  had  sustained  other 
loss. 

Plea.  —  Not  guilty. 

The  cause  was  tried,  before  Martin,  B.,  without  a  jurj-,  at  the  Lon- 
don Sittings  after  Michaelmas  Terra,  1860,  when  the  following  facts 
appeared  :  The  plaintiff  was  a  cabinet-maker  and  the  defendants  were 
timber  merchants.  In  April,  1860,  one  Youngman,  who  was  em- 
plo^'ed  b}^  the  defendants  to  sell  their  timber  on  commission,  took  the 
plaintiff  to  the  West  India  Docks  and  showed  him  three  logs  of  ma- 
hogan}'  belonging  to  the  defendants.  Youngman  asked  3s.  6c?.  per 
foot  for  two  of  the  logs  and  4s,  6d.  per  foot  for  the  third.  Youngman 
represented  the  third  log  as  a  very  fine  log  and  perfectly'  sound.  He 
called  several  times  on  the  plaintiff  and  urged  him  to  buy  this  log, 
repeating  his  representations  as  to  its  qualit}'.  On  one  occasion  he 
said,  "  There  is  not  finer  wood  in  London,  I  will  warrant  it  worth  6s.  a 
foot."  The  plaintiff  said,  "  Never  mind  Qs.,  will  you  warrant  it  worth 
3s.   a  foot?"  and   Youngman  replied,   "I   will."     The  plaintiff  then 

1  Ace:  Schooner  Freeman  i'.  Buckingham,  18  How.  182  (185.5);  Pollard  v. 
Vinton,  105  U.  S.  7  (1881)  ;  National  Bank  of  Commerce  u.  C.  B.  &  N.  Railroad  Co., 
44  Minn.  224  (1890).  —  Ed. 


SECT.  IV.]  UDELL   V.    ATHERTON.  o75 

offered  to  bu}'  it  at  3s.  a  foot,  but  Youngman  refused  to  sell  it  at  that 
price.  A  few  days  afterwards  he  sent  the  plaintiff  an  invoice,  in  which 
the  log  was  charged  3s.  a  foot,  together  with  a  delivery  order  for  the 
log,  and  two  bills  of  exchange  respectively  drawn  on  the  plaintiff  at 
four  and  six  months'  date,  and  payable  to  the  defendants'  order.  The 
plaintiff  accepted  the  bills  and  removed  the  log  to  his  premises.  The 
four  months'  bill  was  paid  at  maturity  and  before  the  plaintiff  dis- 
covered any  defect  in  the  log.  Previously  to  the  six  months'  bill  be- 
coming due,  the  plaintiff  ordered  the  log  to  be  cut  up,  and  he  then 
discovered  a  large  hole  in  one  of  its  sides,  which  was  caused  by  a  branch 
of  the  tree  having  died  before  it  was  felled.  On  account  of  this  defect 
the  log  was  not  worth  more  than  Is.  Sd.  a  foot  at  the  utmost.  Young- 
man  afterwards  called  upon  the  plaintiff  and  said  that  he  was  never 
so  deceived  in  a  log  in  his  life,  and  he  admitted  that  it  was  a  verj-  bad 
one.  Plaintiff  said  he  ought  to  have  told  him  of  the  defect  in  the  log, 
and  he  replied  that  he  did  not  know  of  it.  Youngman  had  previously 
offered  to  sell  the  log  to  a  timber  merchant,  named  Oliver,  who  re- 
fused to  buy  it  on  account  of  its  defective  qualitv,  and  had  pointed  it 
out  to  Youngman.  After  this  Oliver  again  saw  the  log,  and  it  had 
been  turned  over  so  that  the  hole  in  it  could  not  be  seen.  The  plain- 
tiff complained  to  the  defendants  of  the  defective  qualit}-  of  the  log, 
and  they  said  that  they  had  neither  authorized  nor  wished  Youngman 
to  sell  wood  as  sound  which  was  defective,  and  thev  referred  the  plain- 
tiff to  him.  The  defendants  refused  to  make  any  allowance,  and  in- 
sisted on  the  payment  of  tlie  whole  of  the  agreed  price.  There  was 
no  evidence  that  the  defendants  knew  of  the  fraudulent  representations 
of  Youngman,  or  that  they  were  aware  of  any  defect  in  the  log.  Upon 
these  facts  the  learned  judge  was  of  opinion  that  the  plaintiff  could  not 
recover  in  this  form  of  action,  and  his  lordship  directed  a  nonsuit. 

JTmvkins,  in  last  Hilary  Term,  obtained  a  rule  nisi  for  a  new  trial, 
on  the  ground  that  the  learned  judge  had  improperly  ruled  that  the 
defendants  could  not,  under  the  circumstances,  be  made  liable  for  the 
fraud  of  their  a^ent. 

Coleridge  and  Kingdon  showed  cause. 

Sarnard  and  Willoughby,  in  support  of  the  rule. 

Cur.  adv.  vult. 

The  learned  judges,  having  differed  in  opinion,  now  delivered  the 
following  judgments. 

Wilde,  B.  I  am  of  opinion  that  the  rule  ought  to  be  absolute  to 
enter  the  verdict  for  the  plaintiff;  and  I  have  the  authority  of  the  Lord 
Chief  Baron  for  saying  that  he  agrees  with  the  judgment.^  .  .  . 

The  question  is  thus  raised,  whether  a  principal,  who  has  had  the 
benefit  of  a  contract  made  by  his  agent,  is  responsible  for  a  deliberate 
fraud  committed  by  his  agent  in  the  making  of  the  contract,  by  which 
fraud  alone  the  contract  was  obtained. 

1  A  statement  of  the  case  is  here  omitted.  —  Ed. 


376  UDELL  V.   ATHEKTON.  [CHAP.  IL 

I  sa}'  "  reponsible  "  generally,  because  I  am  not  aware  that  if  this 
action  of  deceit  does  not  lie  against  the  principal  an}-  other  form  of 
action  will.     If  this  be  so,  the  consequences  appear  to  be  as  follows  :  -^ 

The  man  who  has  reaped  the  benefit  of  a  fraud  committed  on  his 
behalf  keeps  the  fruits  in  his  pocket ;  the  man  defrauded  in  the  con- 
tract has  to  look  to  the  intermediate  person  and  not  him  with  wliom 
he  contracted.  If  the  agent  is  a  man  of  no  means  this  remedy  would 
be  fruitless.  If  the  agent  is  able  to  pay  he  does  so  without  remedy 
over,  and  the  person  defrauded  is  reinstated  out  of  the  funds  of  one 
man  while  the  fruits  of  the  fraud  are  i-etained  by  another. 

These  results  make  it  desirable  to  examine  closely  the  principles 
upon  which  such  a  decision  is  to  be  supported. 

It  is  said  that  a  man  who  is  himself  innocent  cannot  be  sued  for  a 
deceit  in  which  he  took  no  part,  and  this  whether  the  deceit  was  by  his 
agent  or  a  stranger.  To  this,  as  a  general  proposition,  I  agree.  All 
deceits  and  frauds  practised  by  persons  who  stand  in  the  relation  of 
agents,  general  or  particular,  do  not  fall  upon  their  principals.  For, 
unless  the  fraud  itself  falls  within  the  actual  or  the  implied  authority 
of  the  agent,  it  is  not  necessarily  the  fraud  of  the  principal. 

On  this  principle  it  was  that  the  Court  of  Common  Pleas,  in  Grant  v. 
Norway,  10  C.  B.  665,  held  a  shipowner  not  responsible  for  the  fraud 
of  the  captain  in  signing  bills  of  lading  without  any  goods  on  board  ; 
and  so,  in  the  case  of  Coleman  v.  Riches,  16  C.  B.  104,  a  wharfinger 
was  held  not  liable  for  a  false  receipt,  which  his  agent  had  given,  rep- 
resenting that  goods  had  been  received  at  the  wharf,  which  had  not 
so  been  received.  In  neither  of  these  cases  did  the  principal  authorize 
or  in  an}'  way  adopt  or  obtain  the  benefit  of  the  fraudulent  act.  But 
does  this  principle  apply  to  fraud  committed  in  the  making  of  contracts 
which  the  principal  has  adopted  and  of  which  he  has  claimed  and  ob- 
tained the  benefit? 

The  contract  is  made  b}-  the  agent  for  the  principal,  but  when  made, 
if  authorized  or  adopted,  it  becomes  in  law  the  contract  of  the  principal. 
Can  the  principal  treat  the  contract  as  his,  and  repudiate  the  fraud 
upon  which  it  was  built  as  the  agent's?  In  the  making  of  the  actual 
contract,  when  the  agent  speaks  he  does  so  with  the  voice  of  the 
principal,  for  it  is  the  principal's  contract  he  is  making. 

In  the  representations  which  immediateh*  preceded  the  contract,  is 
the  agent  speaking  only  for  himself?  If  so,  on  what  principle  is  it 
that  the  principal  could  not  sue  upon  a  contract  in  itself  valid,  but  pre- 
ceded and  brought  about  by  fraudulent  representations  of  the  agent? 
And  yet  this  is  the  plain  law. 

This  brings  me  to  another  difficulty.  For  it  would  surel}'  be  an 
anomalous  state  of  things,  that  the  innocent  principal  could  not  recover 
upon  his  contract  because  fraudulently  obtained  b}'  his  agent,  but  that, 
if  before  discover}'  the  contract  be  performed,  he  may  ever  after  keep 
the  benefit  of  it.  Can  the  buyer's  right,  upon  any  sound  principle,  be 
made  to  depend  on  the  extent  to  which  the  transaction  has  been  com- 


SECT.  IV.]  UDELL   V.    ATHERTON.  377 

pleted?  If  the  fraud  had  been  discovered  before  the  log  was  cut,  could 
not  the  buyer  have  rescinded  the  contract?  If  so,  why  may  he  not 
recover  now,  when  the  state  of  tilings  is  unaltered  by  any  laches  or 
default  of  his? 

A  distinction  has  indeed  been  made  in  equity  between  contracts  per- 
formed and  unperformed.  The  latter  are  sometimes  set  aside  for  mis- 
take or  surprise,  wliile  llie  former  are  not.  But  no  sucli  distinction  has 
ever  been  made  in  favor  of  fraud.  Fraud,  in  all  courts  and  at  all 
stages  of  the  transaction,  has,  I  believe,  been  held  to  vitiate  all  to 
which  it  attaches. 

Next,  as  to  the  authorities.  —  There  is,  I  believe,  no  case  in  which 
the  principal's  immunity,  under  such  circumstances,  has  been  estab- 
lished. The  only  dictum  in  favor  of  it  is,  I  believe,  that  of  Lord 
Campbell  in  the  course  of  argument  in  Wilde  v.  Gibson,  1  H.  L.  605, 
G15.  It  may  be  doubted  if  it  is  correctly  reported,  at  any  rate  it  is 
to  be  taken,  in  my  opinion,  in  reference  only  to  the  point  then  under 
argument. 

The  authorities  the  other  wa}-  are  as  it  seems  to  me  overwhelming. 
Baron  Parke,  in  Moens  v.  Heyworth,  10  M.  &  W.  157,  says :  To 
support  this  action  for  false  representation,  it  is  necessary  "to  prove 
that  by  words  or  acts  of  the  defendants,  or  tlieir  agents,  it  was  made 
falsel}-  and  for  the  improper  purpose  of  inducing  the  other  party  to 
purchase."  Again  in  Wilson  v.  Fuller,  3  Q.  B.  77,  Tindal,  C.  J., 
in  delivering  the  considered  judgment  of  the  full  Court  of  Exchequer 
Chamber,  says:  "  Tliere  was  there  a  fraudulent  concealment  by 
Wadeson  (the  agent)  which  it  must  be  admitted  would  bind  Mrs.  Wil- 
son, if  proved."  And  here  AVadeson  was  onl\-  agent  and  Mrs.  Wilson 
avowedly  innocent,  and  the  action  against  her,  as  here,  for  deceit. 
Again,  the  Chief  Justice  says:  "As  to  the  representation  made  by 
Wadeson,  which  if  fraudulent  it  ma}'  be  admitted  would  bind  her,"  &c. 
And  again,  in  the  much  canvassed  case  of  Cornfoot  v.  Fowke,  6  M.  & 
W.  373,  Baron  Parke,  who  certainlj'  was  not  disposed  to  overstrain 
the  rigid  rules  of  law  in  favor  of  an}'  general  views  of  equity,  said : 
"  It  must  be  conceded  that  if  one  employ  an  agent  to  make  a  contract, 
and  that  agent,  though  the  principal  be  perfectly  guiltless,  knowingly 
commit  a  fraud  in  making  it,  not  only  is  the  contract  void  but  the 
principal  is  liable  to  an  action."  Lastly,  this  point  was  decided  in 
Hern  v,  Nicholls,  1  Salk.  289  ;  often  quoted,  and  so  far  as  I  know  nevei 
impeached. 

To  these  dicta  must  be  added  the  authority  of  the  Exchequer  Cham- 
ber in  a  still  later  case,  Omrod  c.  Huth,  14  M.  &  W.  651.  It  was  an 
action  for  deceit  for  fraudulently  putting  forward  certain  parcels  of 
cotton  as  fair  samples  ;  and  the  defendants,  the  sellers,  were  there 
charged,  as  here,  with  making  the  fraudulent  representation.  At  the 
trial  it  appeared  that  the  sale  was  by  the  defendants'  brokers.  Colt- 
man,  J.,  who  tried  the  cause,  directed  the  jury,  "  That  unless  they  could 
infer  that  the  defendants,  or  their  brokers,  were  acquainted  with  the 


378  UDELL    V.    ATHERTON.  [CHAP.  IL 

fraud  that  had  been  practised  in  the  packing,  or  had  acted  ir,  the  trans- 
action against  good  faith  or  with  a  fraudulent  purpose,  the  defendants 
were  entitled  to  the  verdict."  On  a  bill  of  exceptions  the  Exchequer 
Chamber  upheld  this  ruling,  saying:  "If,  indeed,  the  representation 
was  false  to  the  knowledge  of  the  party  making  it,  this  would  be  con- 
clusive evidence  of  fraud."  And  the  "  party  making  it "  in  that  case 
was,  if  anybody,  the  agent. 

I  find  no  case  in  which  this  principle  has  been  seriously  doubted. 
I  find  no  text  writer  who  does  not  adopt  it.  It  is  well  stated  in  Mr. 
Story's  Principal  and  Agent  at  §  134  :  "■  For  where  the  acts  of  the 
agent  will  bind  the  principal,  there  his  representations,  declarations, 
and  admissions  respecting  the  subject-matter  will  also  bind  him,  if  made 
at  the  same  time  and  constituting  a  part  of  the  res  gestce."  And  again, 
at  §  1.35,  he  says:  "  If  the  agent  at  the  time  of  tlie  contract  makes 
any  representation,  declaration,  or  admission,  touching  the  matter  of 
the  contract,  it  is  treated  as  the  representation,  declaration,  or  admis- 
sion of  the  principal  himself" 

The  defendant  has  adopted  the  sale  made  by  his  agent  and  received 
the  price.  He  has,  by  the  fraudulent  statements  of  the  agent,  obtained 
rather  more  than  twice  what  he  could  have  obtained  by  an  honest  sale. 
It  is  not  the  case  of  any  matter  collateral,  as  a  warranty  maj'  be.  It 
is  not  the  case  of  a  representation  made  out  of  and  bej'ond  the  particu- 
lar business  then  transacting  b}'  the  agent  on  the  principal's  behalf 
It  is  the  representations  made  in  the  very  dealing  itself,  in  the  conver- 
sation that  resulted  in  the  contract,  that  are  in  question. 

The  defendant  claims  the  right  of  separating  the  contract  from  that 
which  induced  it,  of  holding  the  price  and  ignoring  the  false  statements 
which  largely  enhanced  it.  In  m}'  opinion,  justice,  the  common  reason 
of  mankind,  and  every  sound  rule  of  law  are  opposed  to  his  doing  so. 
Whatever  his  previous  authority  to  the  agent,  whatever  his  own  inno- 
cence, he  must,  as  it  seems  to  me,  adopt  the  whole  contract,  including 
the  statements  and  representations  which  induced  it,  or  repudiate  the 
contract  altogether. 

There  are,  no  doubt,  many  frauds  committed  by  agents  which  would 
not  bind  their  principals.  But  I  hold  that  the  statements  of  the  agent 
which  are  involved  in  the  contract  as  its  foundation  or  inducement 
are  in  law  the  statements  of  the  principal. 

To  this  most  equitable  and  reasonable  extent  the  identity  of  the 
principal  with  the  agent  has  I  conceive  been  long  established  in  our 
laws.  It  has  been  much  discussed  whether  an  untrue  but  innocent 
statement  by  an  agent,  when  coupled  wdth  a  knowledge  in  the  princi- 
pal, would  support  an  action  of  deceit  against  the  principal  or  bar  an 
action  on  the  contract.  Such  were  the  cases  of  Cornfoot  v.  Fowke 
and  Fuller  v.  "Wilson. 

The  artificial  identification  of  the  agent  and  principal,  by  bringing 
the  words  of  the  one  side  b}'  side  with  the  knowledge  of  the  other,  in- 
duced the  apparent  logical  consequence  of  fraud.     On  the  other  hand 


SECT.  IV.]  UDELL   V.    ATHERTON.  379 

the  real  innocence  of  both  agent  and  principal  repelled  the  notion  of 
a  constructive  fraud  in  either.  A  discordance  of  views,  varying  with 
the  point  from  wliich  the  subject  was  looked  at,  was  to  be  expected. 
And  the  result  is  found  in  the  elaborate  reasoning  of  the  judgments  in 
the  above  cases. 

But  what  bearing  have  they  upon  the  case  now  in  hand?  —  a  re- 
markable one.  The  point  now  in  dispute  was  tacitly  conceded  by 
every  one.  If  the  agent's  statements  were  not  those  of  the  principal, 
it  was  needless  to  inquire  whether  they  were  fraudulent.  It  would 
have  been  enough  to  establish  that  what  the  agent  had  said  he  had 
said  without  authority,  and  the  immunity'  of  the  employer  would  have 
been  established, —  it  was  needless  to  inquire  whether  the  statement 
was  fraudulent.  According  to  the  defendant's  argument  in  the  present 
case,  the  statements  by  the  house  agent  in  Cornfoot  v.  Fowke,  not 
being  authorized,  in  no  way  affected  his  principal  whether  fraudulent 
or  not;  and  yet  the  whole  inquiry  was  confined  to  whether  they  were 
fraudulent  or  not,  —  a  needless  investigation  if  they  did  not  bind  the 
principal  at  all. 

But  the  same  question  has  arisen  and  been  the  subject  of  decision  in 
another  form,  I  mean  on  the  question  of  admissibility  of  evidence. 
Whenever  the  unauthorized  statements  of  the  agent  are  not  in  law  the 
statements  of  the  principal,  they  would  not  be  admissible  in  evidence 
against  the  principal.  To  whatever  extent  they  are  admissible,  they 
must  in  law  be  considered  the  statements  of  and  binding  on  the 
principal. 

Now,  what  is  the  rule  and  where  is  the  line  between  admissibilit}' 
and  inadmissibility  drawn  ?  There  was  no  more  careful  and  accurate 
judge  than  Sir  William  Grant,  and  he  states  the  rule  thus:  "What 
the  agent  has  said  may  be  what  constitutes  the  agreement  of  the  prin- 
cipal, or  the  representations  or  statements  ma}'  be  the  foundation  of 
or  the  inducement  to  the  agreement.  Therefore,  if  writing  is  not  neces- 
sar}'  by  law,  evidence  must  be  admitted  to  prove  the  agent  did  make 
that  statement  or  representation."  Fairlie  v.  Hastings,  10  Ves.  126. 
And  this,  said  Tindal,  C.  J.,  in  Garth  v.  Howard,  8  Bing.  451,  453, 
"  is  the  leading  case  on  the  subject." 

Other  judges  have  laid  down  a  similar  rule.  In  Langham  v.  AUnutt, 
4  Taunt.  511,  519,  Gibbs,  C.  J.,  says:  "When  it  is  proved  A.  is 
agent  of  B.,  whatever  A.  does  or  sa3's  or  writes,  in  the  making  of  a 
contract  as  agent  of  B.,  is  admissible  in  evidence,  because  it  is  part 
of  the  contract  which  he  makes  for  B.,  and  therefore  binds  B."  In 
Doe  V.  Martin,  4  T.  R.  39,  66;  Lord  Kenyon  says:  "Without  im- 
puting any  fraud  to  Martin,  and,  indeed,  it  is  negatived  by  the  verdict, 
the  maxim,  that  the  principal  is  civilly  responsible  for  the  acts  of  his 
agent,  universallv  prevails,  both  in  courts  of  law  and  equity  ;  and, 
therefore,  whatever  misconduct  and  fraud  are  imputed  to  Cruttenden, 
it  must  affect  his  principal,  Martin." 

It  remains  to  answer  some  of  the  objections  made.     It  is  said  that 


380  UDELL  V.    ATHERTON.  [CHAP.  IL 

the  reason  why  no  action  could  be  maintained  b}'  the  seller  on  the 
contract  is,  tliat  the  principal  cannot  stand  in  a  better  position  than 
the  agent  who  actually  made  the  contract ;  and  that  as  the  agent  could 
not  sue  on  the  contract  the  principal  cannot.  But  this  reasoning  ap- 
plies onl}-  to  derivative  rights.  Whereas  here  the  contract  is  the  prin- 
cipals' from  the  first  though  made  by  the  agent ;  and  as  his  title  is 
not  derivative  so  it  is  not  prejudicially  affected  by  any  acts  but  those 
which  are  in  the  eye  of  the  law  his  own. 

Another  principle  has  been  invoked,  as  it  seems  to  me  improperly. 
When  one  of  two  innocent  people  must  suffer,  he  who  has  entrusted 
the  fraudulent  agent  must,  it  is  said,  be  content  to  bear  the  loss.  If 
such  a  principle  applied  to  this  case,  I  should  have  thought  that  he 
who  entrusted  was  the  seller  and  not  the  buyer,  who  was  deceived. 
But  to  me  it  appears  to  have  no  application.  It  applies,  as  it  seems 
to  me,  only  to  cases  in  which  by  the  fraud  of  the  agent  both  parties, 
he  who  employed  him  as  agent  and  he  who  dealt  with  him,  have  been 
defrauded.  Whereas  here  there  is  only  one  sufferer,  the  other  being 
largely  a  gainer  by  the  deceit  as  matters  now  stand;  and  if  made  to 
pa}-  the  excess  of  price  back  would  still  retain  the  real  value  of  the 
log. 

I  will  only  add  that  the  great  importance  of  the  question,  and  the 
sincere  respect  I  have  for  those  who  take  an  opposite  view,  have  in- 
duced me  thus  fully  to  vindicate  what  I  believe  to  be  the  law,  in  favor 
of  those  who  have  been  cheated  and  against  those  who  claim  to  retain 
the  proceeds  of  the  cheat. 

Bramwell,  B.^  When  it  is  considered  that  to  support  this  decla- 
ration the  plaintiff  must  prove  actual  moral  fraud  {})er  Parke,  B.,  2 
Exch.  541  ;  per  Lord  Cottenham,  C,  1  II.  L.  621),  it  seems  manifest, 
according  to  common  sense  and  plain  English,  that  the  plaintiff  must 
fail ;  for  it  is  admitted  that  no  such  fraud  has  been  committed  by  the 
defendant  himself,  nor  authorized  by  him  either  by  previous  authorit}- 
or  by  any  ratification  or  adoption  of  it  when  he  knew  of  it ;  see  j^er 
Lord  Cottenham,  1  H.  L.  625.  He  ratifies  the  sale  indeed,  but  the 
fraud  is  no  part  of  the  sale,  no  part  of  the  contract, —  it  is  collateral  to  it. 
It  might  have  been  made  bj-  some  person  in  no  sense  the  defendant's 
agent,  but  who  wanted  the  log  bought  or  removed,  and  whose  fraudu- 
lent statement  induced  the  buyer  to  deal  for  it ;  but  the  owner,  b}' 
selling  it  to  a  buyer  so  influenced,  would  not  be  responsible  for  a  fraud 
so  committed.  The  present  alleged  fraud  is  equall}'  collateral  to  the 
contract,  is  as  little  made  b}'  the  defendant's  agent  for  that  purpose, 
and  as  little  adopted,  and  becomes  as  little  the  moral  fraud  of  the 
defendant,  as  in  the  case  put.  Tested  then  by  the  way  in  which 
the  plaintiff  has  shaped  his  case,  he  ouglit  to  fail,  for  he  shows  neither 
the  actual  commission  of  fraud  b}-  the  defendant,  nor  any  authority  for 
its  conuJiission,  nor  any  ratification  or  adoption  of  it.     He  fails  then  to 

^  After  stating  the  case.  —  Ed. 


SECT.  IV.]  UDELL   V.    ATHERTON.  381 

show  that  the  defendant  induced  him  to  buy  the  log  hy  "  fraudulent!}' 
stating,"  &c.  That  this  is  so,  Wilde  v.  Gibson  seems  in  point,  and  it 
ma}'  be  fairly  asked,  in  what  other  shape  can  the  plaintiff' put  his  case? 
But,  independently  of  considerations  arising  from  the  way  in  which 
the  plaintiff  has  shaped  his  case,  I  think  he  ought  to  fail.  I  think  he 
could  not  have  put  it  in  any  wa}'  in  which  he  could  recover.  I  do  not 
repeat  those  remarks  already  made  which  bear  on  this,  but  there  are 
further  considerations.  The  wrong  that  was  done  to  the  plaintiff"  was 
inducing  him  to  buy  by  fraudulent  representations.  This  was  actually 
done  by  Youngman,  and  against  him  the  plaintiff"  has  a  remedy,  as  he 
would  have  Iiad  had  Youngman  made  the  same  representations  with  the 
same  object  and  result,  being  in  no  sense  the  defendant's  agent.  It 
was  done  at  the  time  of  the  dealing  or  sale  though  the  loss  did  not 
accrue  till  after.  Now,  supposing  mahogany  had  risen  in  value,  and 
suppose  the  plaintiff"  had  discovered  the  fraud  and  not  paid  for  the  log 
or  removed  it,  the  defendant  agreeing  thereto  on  disclosure  of  the 
fraud,  would  not  the  plaintiff  have  had  in  such  a  case  a  cause  of  action 
against  Youngman?  Certainly.  Would  he  against  the  defendant?  As 
certainly  no.  What  then  is  the  difference?  It  is  said  to  consist  in 
this,  that  the  defendant  has  had  the  benefit  of  the  fraud,  and  so  he 
ought  to  be  liable.  But  why?  The  reasoning  would  equally  apply  had 
Youngman  been  in  no  sense  his  agent.  Or  suppose  Youngman  had 
received  the  mone}'  and  cheated  the  defendant  of  it,  would  the  plain- 
tiff then  have  or  not  have  a  remedy  against  the  defendant?  It  cer- 
tainly would  be  a  most  singular  thing  that  the  defendant  should  be 
liable  for  this  fraud  of  Youngman's,  though  not  liable  on  Youngman's 
warranty,  which  he  is  not,  though  the  same  reasoning  would  apply 
(See  Fenn  v.  Harrison,  3  T.  R.  760  ;  per  Ashurst,  J. ;  and  the  case 
of  Brady  v.  Todd,  9  C.  B.,  N.  S.  592.)  Y^'oungman  was  not  a  general 
agent  of  the  defendant,  nor  was  there  an}-  evidence  of  usage  in  the 
trade  for  such  warranties  ;  and,  indeed,  the  defendant's  counsel  ad- 
mitted that  the  reason  Youngman's  warrant}'  was  not  relied  on  was 
because  he  had  no  authority  to  give  one,  and  the  cases  referred  to 
show  the  defendant  was  not  bound  by  it  though  he  received  tlie  price 
agreed  for  on  the  face  of  it.  There  is  the  answer  to  the  general  dictum 
of  Gibbs,  C.  J.,  in  Langhorn  v.  AUnutt,  4  Taunt.  511,  519.  Let  us 
suppose  an  agent  saying,  "  I  will  give  a  warranty  and  in  writing,  then 
I  know  the  extent  of  my  liability,  but  I  will  make  no  representations 
lest  I  should  be  troubled  with  questions  as  to  their  extent  and  correct- 
ness ;  "  would  it  be  reasonable  in  such  a  case  that  a  party  should  sue 
the  principal  on  alleged  false  representations  because  he  could  not  do 
so  successfully  on  the  warranty  ?  Tlie  cases  referred  to  show  that,  by 
adopting  the  transaction,  everything  done  by  the  agent  is  not  adopted. 
It  is  asked,  could  the  defendant  have  enforced  the  purchase  of  the  log 
after  both  he  and  the  plaintiff"  knew  of  the  fraud?  Probably  not.  It 
may  be  that  the  contract  itself  is  void,  or  voidable  at  the  option  of  the 
defrauded  party  while  all  is  in  fieri;  or  it  may  be  it  is  so  up  to  the  dis- 


382  UDELL  V.    ATHERTON.  [CHAP.  IL 

covery  of  the  fraud.  But  suppose  the  plaintiff  had  taken  away  the  log, 
and  not  paid  for  it.  What  then  would  be  the  case  of  the  defendant? 
Suppose  the  log  was  worth  half  what  it  was  sold  for,  is  the  defendant 
to  have  nothing,  or  the  real  value,  or  the  agreed  price?  It  seems  to 
me  the  latter.  It  seems  to  me  the  defendant  may  fairly  say,  "I  do 
not  rel}'  on  the  contract,  but  you  have  taken  my  goods,  and  you  took 
them  on  a  representation  made  by  you  to  me  you  were  to  pay  so  much 
for  them,  and  that  you  must  pa}'."  It  is  a  mistake  to  assume  the  de- 
fendant is  availing  himself  of  Youngman's  fraud.  He  wants  that 
mone}'  for  which  he  agreed  the  plaintiff  might  have  the  log.  It  ma}-  be 
that,  without  an}'  representation  or  fraud,  he  would  have  got  as  large 
a  price  from  some  one  who  trusted  to  his  own  judgment.  To  what 
extent  is  such  a  liability  to  be  carried?  Suppose  at  a  sale  of  furniture 
and  goods  in  a  house  there  is  a  gun,  and  the  auctioneer,  in  answer  to 
inquiries,  fraudulently  asserts  it  to  be  of  a  certain  make,  which  both 
he  and  the  owner  (who  however  is  not  present)  know  it  is  not,  and 
then  it  is  bought  and  used  under  such  circumstances  as  to  make  dam- 
ages recoverable  on  its  bursting,  is  the  seller  liable?  Suppose  in  this 
case  the  log  had  been  used  as  a  beam  to  a  house,  and  the  log  from  its 
defects  had  given  way  and  the  house  fallen,  would  the  defendant  be 
liable  for  damages  thereby  occasioned?  If  not,  why  is  he  now?  If 
he  would  be,  would  he  not  have  great  right  to  complain  of  the  buyer? 
Has  he  not,  if  he  is  liable  to  this  claim  ?  The  defendant  may  fairly 
say  :  —  "  This  is  very  hard  on  me  :  You  don't  use  your  own  judgment : 
you  trust  to  representations  made  to  you,  the  falsity  of  which  you  might 
have  ascertained  by  inspection  and  inquiry  "  (for  if  not  there  would  be 
no  knowledge  thereof  in  Youngman,  and  so  no  fraud),  "  you  don't  tell 
me  of  them,  nor  give  me  the  option  of  adopting  or  rejecting  them,  and 
now  because  they  were  made  you  bring  this  action."  How  could  the 
defendant,  how  can  any  one,  guard  himself  from  such  a  liability  as 
this  ?  It  is  in  vain  he  tells  his  agent  to  make  no  representation.  Is 
it  his  business  to  ask  the  buyer  if  any  statements  have  been  made? 
Surely  it  is  more  the  buyer's  duty,  when  they  have  been  made,  to  ask 
if  they  are  with  the  sanction  and  approval  of  the  principal.  In  short 
the  rule  ought  to  apply,  that,  as  between  two  innocent  persons,  he 
who  has  trusted  must  take  the  consequence  ;  he  who  has  enabled  the 
commission  of  a  fraud  must  be  responsible  for  it.  Now  here  that  is 
the  plaintiff ;  he  trusted  Youngman,  the  defendants  did  not :  the  plain- 
tiff enabled  Youngman  to  cheat  him  by  trusting  his  representations 
and  making  neither  inspection  of  the  log  nor  inquiry  of  the  defendants. 
It  is  clear  Youngman  would  be  liable  to  the  plaintiff.  Are  the  defend- 
ants jointly  liable  with  him,  or  are  they  separately  liable,  each  for  the 
whole,  or  for  what  part?  Would  a  recovery  against  Youngman  be  a 
bar  to  this  action?  As  to  the  argument  that  the  fraudulent  agent 
may  be  a  pauper,  no  doubt  he  may -be,  but  that  is  no  reason  for  fixing 
a  person  not  otherwise  liable.  If  it  were,  it  would  apply  though  the 
log  had  never  been  taken  or  paid  for ;  and  would  apply  to  make  the 


SECT.  IV.]  UDELL   V.    ATHEKTON.  383 

seller  liable  on  a  warrant}-.  For  these  reasons  and  independentl}'  of 
considerations  arising  out  of  the  form  in  which  the  plaintiff  has  shaped 
his  case,  I  think  he  fails  to  make  out  any  cause  of  action  against  the 
defendant. 

It  remains  to  examine  the  authorities.  Of  course,  if  there  was  one 
directly  in  point  in  any  of  the  superior  courts  I  should  adopt  it,  and 
leave  its  correctness  to  be  questioned  on  appeal.  But  there  is  not, 
though  it  must  be  admitted  there  are  dicta  opposed  to  my  view  which 
are  entitled  to  the  greatest  weight  and  respect.  (Story's  Agenc}',  sects. 
58,  59,  132,  133 ;  Parsons  on  Contracts,  p.  52,  55,  3rd  ed. ;  Lord 
Wensleydale's  expression  in  Murra\'  v.  Mann,  2  Exch.  538  ;  and  in 
Cornfoot  v.  Fowke,  G  M.  &  W.  373).  There  is  however  no  decision  in 
point,  and  it  is  conceived  that  the  opinions  in  question  were  founded 
on  authorities  which  do  not  warrant  them  to  the  extent  to  which  the 
plaintiff  applies  them,  an  extent  probably  far  beyond  the  meaning  of 
their  authors.  The  first  case  relied  on  is  Hern  v.  Nichols,  1  Salk.  289  ; 
but  it  is  clear  that  was  an  action  on  a  warrant}-,  which  was  formerly 
called  an  action  for  deceit,  and  a  good  warrant}'  is  shown  there,  for  it 

is  said  "  the  plaintiff  bought  the  silk  for silk  and  the  defendant 

sold  it  to  him  for  such,  which  it  was  not."  It  is  true  the  factor  had 
committed  a  fraud,  but  that  did  not  make  the  case  less  one  of  warranty. 
The  observation  of  Holt,  C.  J.,  in  that  case,  that  he  who  employs  and 
puts  a  trust  in  the  deceiver  should  be  the  loser,  certainly  affects  the 
plaintiff  more  than  the  defendants.  Grammar  v.  Nixon,  1  Stra.  653, 
is  a  case  where  the  fraudulent  agent  was  acting  within  the  presumable 
scope  of  his  authority.  In  Murray  /'.  Mann,  2  Exch.  538,  the  dicta  are 
very  wide  ;  but  all  that  was  decided  was  that  money  had  and  received 
could  not  be  maintained  by  a  principal  against  an  agent  who  had  re- 
ceived money  for  the  principal,  but  who  could  not  retain  it,  and  had 
been  compelled  to  return  it,  owing  to  the  fraudulent  way  in  which  he 
had  obtained  it.  Fuller  v.  Wilson,  3  Q.  B.  GH,  cannot,  be  considered 
as  an  authority  ;  for  the  Court  of  Exchequer  Chamber  declined  to  re- 
view the  question  in  Cornfoot  v.  Fowke,  6  M.  &  W.  373,  and  merely 
decided  that  the  case  was  not  proved.  On  the  other  hand,  Fenn  v. 
Harrison,  3  T.  R.  760,  and  the  case  of  Brady  v.  Todd,  9  C.  B.,  N.  S. 
592,  are  authorities  for  our  decision,  for  the  reasons  above  given. 
Croft  I'.  Alison,  4  B.  &  Aid.  590,  and  similar  cases  point  the  same 
way.  So,  also,  do  Coleman  v.  Riches,  16  C.  B.  104  ;  Grant  v.  Norway, 
10  C.  B.  665  ;  though,  no  doubt,  in  those  cases  the  defendant  sought 
to  be  charged  as  principal  never,  in  any  sense,  had  the  benefit  of  the 
fraud.  But  the  judgment  of  Rolfe,  B.,  in  Cornfoot  v.  Fowke,  is 
nearly  direct  on  the  question  for  the  defendants,  and  so  are  the  opinions 
of  Lord  Cottenham,  Lord  Brougham  and  Lord  Campbell  in  the  House  of 
Lords  in  Wilde  v.  Gibson,  1  H.  L.  605.  I  think  therefore  the  nonsuit 
should  stand. 

Martin,  B.^     The  circumstance  that  the  defendants   have  received 

1  After  stating  the  case.  —  Ed. 


384  UDELL   V.    ATHERTON.  [CHAP.  IL 

the  full  consideration  of  a  contract  which  the  plaintiff  might  have 
avoided  for  fraud,  and  the  alleged  injustice  of  permitting  them  to  retain 
the  price  of  3s.  per  foot  for  an  article  worth  onl}^  Is.  3d,  and  which 
price  was  agreed  to  be  paid  bv  the  plaintiff  upon  a  false  and  fraudulent 
misrepresentation  made  by  the  agent  of  the  defendants,  has  been 
strong!}'  urged  as  creating  a  liability  ;  but,  notwithstanding,  1  tliink 
there  is  none.  The  contract  was  procured  by  fraud,  and  was  there- 
fore voidable  bj'  the  plaintiff.  It  was  not  void,  for  the  plaintiff 
might  have  insisted  ujjon  its  performance.  It  was  voidable  at  his 
election.  The  fraudulent  misrepresentation  was  not  part  of  the  con- 
tract, it  was  a  collateral  matter  which  would  have  entitled  the  plaintifT 
to  have  avoided  it.  There  would  have  been  no  legal  objection  to  the 
defendants  suing  as  plaintiffs  in  an  action  ;  but  it  is  clear  that  a  plea 
of  fraud  would  have  been  a  good  answer.  The  plaintiff  only  knew 
Youngman  in  the  transaction  ;  and  altiiough  the  defendants  might  sue 
upon  the  contract,  the}'  could  have  no  greater  right  against  the  plaintiff 
than  Youngman  had,  and  as  the  plaintiff  would  have  an  answer  to  the 
action  if  brought  b}'  Youngman  he  must  also  have  one  to  an  action 
brought  by  the  defendants.  So,  also,  I  apprehend,  if  the  plaintiff  had 
discovered  the  defect  before  he.  had  so  used  the  log  as  to  incapacitate 
him  from  returning  it,  he  might  have  returned  it  to  the  defendants  and 
rescinded  the  contract.  In  truth  the  contract  was  voidable  for  fraud 
against  ever}-  one  so  long  as  it  was  executory  and  capable  of  being 
avoided.  But  the  contract  has  been  executed.  The  plaintiff  has  taken 
to  the  log  and  used  it,  and  the  defendants  have  received  the  price,  and 
whatever  remedy  exists  for  the  plaintiff  must  be  by  way  of  action. 
The  allegation  in  the  declaration  upon  which  the  plaintiff's  right  of 
action  rests  is,  that  the  defendants  made  a  false  and  fraudulent  repre- 
sentation. But  how  can  it  be  said  with  truth  that  the  defendants  made 
such  a  representation?  They  themselves  never  made  it;  they  never 
authorized  Youngman  to  make  it ;  they  never  knew  of  it  until  long 
afterwards  and  until  after  the  contract  had  been  executed.  All  that 
they  did  was  to  authorize  Youngman  to  sell  the  log  honestly.  No 
doubt  they  afforded  the  occasion  upon  which  the  fraudulent  misrepre- 
sentation was  made,  but  they  did  nothing  more  ;  and  in  my  opinion 
this  is  too  remote  to  render  them  liable  to  this  action.  Youngman 
however  is  clearly  liable  upon  the  facts  as  assumed,  and  if  he  be  a 
solvent  man  the  plaintiff  may  obtain  from  him  the  redress  to  which  he 
is  entitled.  I  do  not  think  the  circumstance,  that  he  possibly  may  be 
a  person  not  capable  of  paying  damages,  is  one  which  can  legally  be 
taken  into  consideration  in  order  to  determine  the  liability  of  the  de- 
fendants. The  ability  to  pay  does  not  affect  the  question  of  legal  lia- 
bility for  a  wrong :  all  that  can  reasonably  be  required  is,  that  the  law 
should  afford  redress  against  the  individual  who  commits  it. 

For  these  reasons,  if  there  were  no  authorities  npon  the  subject,  I 
should  be  of  opinion  that  the  defendants  are  not  responsible,  but  I 
think  the  weight  of  authority  is  in  favor  of  the  defendants.     It  is  true 


SECT.  IV.]  UDELL    V.    ATHERTON.  385 

there  are  dicta  of  most  eminent  judges  in  favor  of  the  action,  but 
they  are  dicta  only.  The  first  is  by  Lord  C.  J.  Tindal,  in  the  judg- 
ment of  the  Exchequer  Chamber  in  Wilson  v.  Fuller,  3  Q.  B.  68,  that 
a  principal  is  bound  in  a  civil  action  by  a  fraudulent  concealment  of 
which  his  agent  was  guilty.  The  next  is  b}'  Baron  Parke,  in  Corn- 
foot  V.  Fowke,  6  M.  &  W.  373,  that  if  one  employ  an  agent  to  make 
a  contract,  and  that  agent  (though  his  principal  be  perfectly  guiltless) 
knowingly  commit  a  fraud  in  making  it,  not  only  is  the  contract  void 
but  the  principal  is  liable  to  an  action,  and  he  cites  Hern  v.  Nichols, 
1  Salk.  289.  This  was  a  decision  at  Nisi  Prius  by  Lord  Holt,  and, 
as  in  many  other  old  cases,  it  is  extremely  difficult  to  saj'  whether  it 
was  an  action  upon  a  warranty  or  one  for  deceit,  pi'operly  so  called  ; 
if  it  were  upon  a  warranty  or  contract  it  would  be  no  authority'  upon 
the  present  point.  Li  Coleman  v.  Riches,  hereinafter  mentioned,  Mr. 
J.  Cresswell,  in  speaking  of  it,  says  it  was  not  a  case  of  fraud.  So 
also,  in  Murray-  v.  Mann,  2  Exch.  538,  Baron  Parke  again  said,  if 
an  agent  be  guilty  of  fraud  in  transacting  his  principal's  business  the 
principal  is  responsible.  There  was  another  case  referred  to,  Grammar 
V.  Nixon,  1  Str.  G53  ;  but  in  reality  it  has  no  bearing  upon  the  present. 
It  was  the  case  of  a  servant,  not  an  agent.  The  relation  of  master  and 
servant  is  entirely  diftcrent  from  that  of  a  principal  vendor  and  his 
agent  or  brokers  to  sell.  I  quite  agree  that  no  higher  authority  of  the 
kind  can  be  cited  than  the  opinions  of  Lord  C.  J.  Tindal  and  Baron 
Parke  ;  but  upon  the  other  hand  there  is  the  authority  of  the  Lord 
Chancellor,  Lord  Campbell,  in  AVilde  v.  Gibson,  1  H.  L.  605,  the  other 
way.  He  there  says:  "•  In  an  action  upon  contract  the  representation 
of  an  agent  is  the  representation  of  the  principal,  but  in  an  action  on 
the  case  for  deceit  the  misrepresentation  must  be  proved  against  the 
principal."  This,  in  my  opinion,  is  an  accurate  statement  of  the  law. 
But  I  think  this  case  is  concluded  by  adjudged  cases.  In  the  case  of 
Grant  v.  Norway,  10  C.  B.  665,  where  the  master  of  a  ship  had  signed 
bills  of  lading  for  goods  which  had  never  been  shipped,  it  was  held 
that  his  doing  so  did  not  make  his  owner  responsible  to  one  who  had 
made  advances  upon  the  faith  of  the  bills  of  lading.  That  is  a  much 
stronger  case  than  the  present.  The  master  of  a  ship  is  the  general 
agent  of  the  owner ;  Youngman  was  not  the  general  agent  of  the  de- 
fendants, he  was  merely  the  agent  to  sell  this  single  log.  The  repre- 
sentation of  the  master  was  a  false  and  fraudulent  misrepresentation  ; 
it  was  false,  and  false  to  his  knowledge,  and  this  constitutes  a  false 
and  fraudulent  misrepresentation  :  Polhill  r.  Walters,  3  B.  &  Ad.  114; 
yet  the  owner  was  held  not  to  be  responsible.  So  also,  in  Coleman  v. 
Riches,  16  C.  B.  104,  the  defendant  was  a  wharfinger  at  Bristol, 
and  one  Board  was  his  general  manager  at  the  wharf  The  plaintiff 
had  bought  a  parcel  of  wheat  from  one  Lewis  ;  Board  signed  a  wharf 
receipt,  in  the  usual  form,  for  the  wheat  as  received  from  Lewis  at  the 
wharf.  Upon  the  production  of  the  receipt,  and  on  the  faith  of  it,  the 
plaintiff  paid  the  price  to  Lewis.     In  fact  the  wheat  had  not  been  de- 


386  UDELL   V.    ATHERTON.  [CHAP.  IJ. 

livered,  and  the  receipt  was  fraudulently  concocted  between  Lewis  and 
Board.  The  Court  of  Common  Pleas  held  that  the  defendant  was  not 
liable  in  an  action  for  a  false  and  fraudulent  misrepresentation.  This 
case  seems  to  me  in  point,  and  I  concur  with  what  Mr.  J.  Cress- 
well  sajs,  which  I  think  applicable  to  the  present,  •'  that  the  agent 
was  employed,  not  to  make  statements  but  contracts."  It  has  been 
decided  that  an  agent  to  sell  a  chattel  has  not  authority  to  give  a  war- 
ranty except  specially  authorized.  This  matter  was  much  discussed 
in  Coleman  v.  Riches,  16  C.  B.  104;  and  Mr.  J.  Cresswell  expresses 
his  clear  opinion  that  the  agent  has  no  such  authority,  and  this  is  in 
accordance  with  principle.  The  mere  authority  to  an  agent  to  sell 
must  be  to  sell  according  to  the  ordinary  rule  of  law,  and  that  is 
"  caveat  emptor."  But  the  point  has  been  expressly  decided  by  the 
Court  of  Common  Pleas  in  Brady  v.  Todd,  9  C.  B.,  N.  S.  592,  where 
it  was  held,  that  an  agent,  being  a  servant,  authorized  to  sell  a  horse, 
had  not  authority  to  bind  his  master  b}'  a  warranty  that  the  horse  was 
sound  and  quiet  in  harness.  This  case  therefore  substantially  over- 
rules the  Nisi  Prius  decision  in  Alexander  v.  Gibson,  2  Camp.  555. 
If,  therefore,  an  agent  to  sell  has  not  authority  to  bind  the  principal 
by  a  warranty,  how  is  it  possible  that  he  can  render  him  liable  as  upon 
a  false  and  fraudulent  misrepresentation?  In  my  judgment,  therefore, 
the  present  case  is  concluded  by  adjudged  cases,  and  if  the  plaintiff  is 
to  succeed  it  ought  to  be  by  the  judgment  of  a  court  of  error.  For 
my  own  part,  as  I  have  alreadv  said,  I  am  satisfied  upon  legal  prin- 
ciple the  defendants  are  not  liable.  I  use  the  tests  applied  by  Mr.  J. 
Cresswell  in  Coleman  v.  Riches,  16  C.  B.  104.  First,  was  Youngman 
in  fact  authorized  by  the  defendants  to  make  the  representation?  He 
was  not.  Secondly,  was  his  situation  such  as  to  bring  the  represen- 
tation he  made  within  the  scope  of  his  authority?  I  think  not.  He 
was  employed  to  sell  in  accordance  with  the  ordinary  rule  of  law,  but 
he  was  not  employed  to  represent  that  to  be  true  which  he  knew  to  be 
false. 

For  these  reasons  I  am  of  opinion  that  the  defendants  are  not  re- 
sponsible, and  that  the  plaintiff  must  seek  his  remedy  against  Young- 
man,  who,  upon  the  evidence  in  the  case,  made  the  false  and  fraudulent 
misrepresentation. 

Some  passages  were  referred  to  from  Mr.  Justice  Story's  work,  and 
also  some  placita  from  RoUe's  Abridgment.  They  were  cited  to  the 
Court  of  Common  Pleas  in  the  cases  before  mentioned,  and  I  do  not 
think  it  necessary'  to  refer  to  them. 

As  to  the  alleged  hardship  upon  the  plaintiff,  there  is  none.  He 
dealt  exclusivel}'  with  Youngman,  and  if  he  be  not  of  ability  to  pay, 
the  plaintiff  is  only  in  the  condition  of  all  persons  who  have  received 
a  wrong  at  the  hands  of  a  person  unable  to  make  redress.  As  to  the 
defendants,  I  do  not  know  the  authorit}'  as  to  price  given  by  them  to 
Youngman,  but  it  may  have  been  that  he  was  not  to  sell  the  mahogany 
at  a  lower  price  than  3s.  per  foot ;    in  other  words,  that  the  defendants 


SECT.  IV.]         NEW    YORK,    ETC.    R.ULRt)AD    CO.    V.    SCHUYLER.  387 

would  keep  their  wood  if  they  did  not  receive  in  exchange  for  it  a  sum 
of  mone}'  equal  to  3s.  per  foot.  Now  the  i)laintiff  has  taken  the  log 
and  has  used  it.  By  reason  of  his  own  act  he  cannot  restore  it  to  the 
defendants.  Why  then  should  they  be  deprived  of  the  price  or  any 
part  of  it?  It  is  said  that  the  circumstance  of  the  defendants  having 
received  the  price  agreed  to  be  given  upon  the  false  representation 
made  by  their  agent,  renders  them  liable  to  pay  the  difference  between 
the  contract  price  and  the  real  value.  But  is  this  so  in  reason  and 
justice?  It  maj-  well  have  been  that  the  defendants  insisted  that  no 
lower  price  should  be  accepted  than  3s.  per  foot.  If  the  log  had  turned 
out  worth  20s.  per  foot  the  plaintiff  would  have  had  the  benefit.  The 
defendants  ma}-  have  only  received  what  they  insisted  upon  having 
before  they  parted  with  the  log.  The  plaintiff  by  his  own  act  has 
deprived  the  defendants  of  the  possibility  of  its  ever  being  restored  to 
them.  What  right  has  he  in  reason  or  justice  to  deprive  the  defend- 
ants of  any  portion  of  that  price  which  the}-  may  have  insisted  upon 
having  before  they  parted  with  their  property?  If  Youngman  has 
committed  a  wrong  he  is  responsible  for  it ;  but  wh}-  are  the  defend- 
ants, who  have  committed  none,  to  be  deprived  of  their  property,  and 
also  of  a  part  of  what  ma}-  have  been  the  stipulated  price?  The  maxim 
of  law  is,  "  In  pari  delicto  potior  est  conditio  defendentis."  I  think 
the  same  rule  ought  to  prevail  in  this  case,  where  there  is  equal 
innocence. 

The  result  of  our  judgments  is  that  the  rule  will  be  discharged. 

Rule  discharged. 


NEW  YORK   AND   NEW  HAVEN  RAILROAD   CO.  v. 
SCHUYLER  ET  AL. 

Court  of  Appeals  of  New  York.     1865. 

[34  X  Y.  30.] 

This  is  an  action  in  the  nature  of  a  suit  in  equit}-,  against  Robert 
Schuyler  and  several  hundred  other  defendants.  The  complaint  was 
sustained  by  this  court  on  demurrer,  as  will  appear  by  reference  to  the 
reported  case  in  17  N.  Y.  592.  The  object  of  the  complaint  was  to 
have  a  large  number  of  alleged  false  and  fraudulent  certificates  and 
transfers  of  pretended  stock  of  the  company,  made  b}-  Schuyler,  and 
charged  to  be  held  b}-  the  defendants,  adjudged  spurious  and  void  ; 
and  to  compel  the  certificates  to  be  brought  into  court  and  cancelled  ; 
and  to  enjoin  the  several  defendants  from  further  prosecuting  actions 
then  pending,  and  from  bringing  suit  against  the  company  to  enforce 
such  certificates  and  transfers,  or  to  recover  damages  for  any  reasons 
connected  therewith.^  .  .  . 

1  The  abstract  of  the  complaint  is  omitted.  —  Ed. 


388  NEW   YORK,   ETC.    RAILROAD    CO.   V.    SCHUYLER.         [CHAP.  IL 

A  large  number  of  the  defendants  answered,  setting  forth  various 
facts  and  grounds  upon  which  they  claimed  that  the  plaintiffs  were  not 
entitled  to  the  relief  sought,  and  that  the  certificates  or  transfers 
respectively  held  by  them  were,  or  ought  to  be,  treated  as  valid  and 
binding  on  the  company  ;  or  damages  awarded  to  them  for  injuries  sus- 
tained by  the  alleged  frauds  of  Schuyler,  and  many  asking  for  relief 
by  way  of  judgments  for  damages  against  the  company. 

The  case  was  tried  at  Special  Term.  .  .  .  The  Court  found  various 
facts  (hereinafter  more  particularly  stated),  upon  which  he  adjudged 
that  the  plaintiffs  were  entitled  to  the  relief  sought  by  their  complaint, 
as  to  most  of  the  defendants,  and  ordered  judgment  accordingly.  He 
also  found  facts  in  respect  to  a  large  number  of  the  defendants,  upon 
which  he  decided  that  the  plaintiffs  were  liable  to  them  respectively  for 
the  damages  sustained  in  consequence  of  their  certificates  or  transfers 
turning  out  to  be  false  and  fraudulent,  and  were  entitled  separately  to 
maintain  actions  against  the  plaintiffs  for  such  damages,  but  that  such 
damages  could  not  be  appropriately,  under  the  pleadings  in  the  case, 
adjudged  to  them  in  this  action. 

From  the  judgment  .  .  .  the  plaintiffs  appealed  to  the  General  Terra 
from  all  that  portion  relating  to  the  rights  of  the  defendants  to  recover 
damages  for  the  injuries  to  them,  and  to  maintain  actions  against  the 
plaintiffs  therefor ;  and  some  of  the  defendants  appealed  from  so  much 
of  the  decision  as  adjudged  their  certificates  and  transfers  invalid,  and 
annulled  the  same  ;  and  some  from  such  decision  and  from  the  decision 
that  relief  by  cross-judgments  for  damages  could  not  be  awarded  in  this 
suit. 

On  these  appeals  the  General  Term  of  the  first  district  affirmed  the 
judgment  (with  some  modifications  as  to  a  few  of  the  parties  not  now 
important  to  refer  to),  and  decided,  in  substance,  that  upon  the  facts 
found  by  the  Special  Term,  as  to  the  several  defendants,  it  was  the 
duty  of  the  court  to  have  proceeded  and  assessed  the  amount  of  their 
damages  respectively,  and  awarded  judgments  in  this  action  against  the 
plaintiffs  therefor,  and  they  ordered  the  case  to  be  sent  back  to  the  Special 
Term  for  that  puri)ose.  .  .  .  Thereupon  the  Special  Term  .  .  .  pro- 
ceeded to  make  the  said  assessments  ;  and  .  .  .  found  further  facts, 
.  .  .  upon  which  judgments  were  ordered  in  favor  of  said  defendants 
respective!}',  to  be  entered  as  part  of  the  original  judgment  and  as  an 
amendment  thereof.  The  plaintiffs  took  exceptions  to  the  proceedings 
to  assess  .  .  .  and  to  the  judgments.  .  .  . 

The  last  or  amended  judgment  was  entered  June  30,  1864,  and  from 
this  judgment  the  plaintiffs  again  appealed  to  the  General  Tei-m,  where 
the  same  was  aflSrmed  ;  and  from  such  affirmance  the  plaintiffs  appeal 
to  this  court.^  .  .  . 

The  particular  facts  of  individual  cases,  or  classes  of  cases,  are 
stated  so  far  as  necessary  in  the  course  of  the  opinion.     The  general 

1  From  the  statement  and  also  from  the  opinion  have  been  omitted  passages  deat 
iuU  with  appeals  taken  in  behalf  of  divers  defendants.  —  Ed. 


SECT.  IV.]         NEW   YOKK,    ETC.    KAILKOAD    CO.    V.    SCHUYLER.  389 

facts  as  found  by  tlie  court  on  the  trial,  as  they  appear  from  the  plead- 
ings and  case,  are,  in  substance,  as  follows  :  — 

That  the  plaintiffs  were  duly  incorporated  by  the  legislature  of  the 
State  of  Connecticut  in  1844  ;  and  by  an  act  of  the  legislature  of 
this  State,  passed  in  1846,  were  authorized  to  extend  their  road  into 
this  State,  and  clothed  with  necessary  powers  for  conducting  its  busi- 
ness in  this  State  ;  that  tlie  act  of  incorporation  provided  that  the 
capital  stock  of  the  company  should  be  two  millions  of  dollars,  with 
the  privilege  of  increasing  the  same  to  three  millions,  to  be  divided  into 
shares  of  one  hundred  dollars  each,  which  shares  should  be  deemed 
personal  property  and  be  transferred  in  such  manner  and  in  such  places 
as  the  by-laws  of  said  company  should  direct ;  and  that  the  directors 
should  have  full  power  to  make  and  prescribe  such  by-laws,  rules  and 
regulations,  as  they  should  deem  needful  and  proper,  touching  the  dis- 
position and  management  of  the  stock,  property',  estate  and  effects  of 
the  said  company,  the  transfer  of  the  shares,  the  duties  and  conduct  of 
their  officers  and  servants,  the  election  and  meetings  of  the  directors, 
and  all  matters  whatsoever  which  might  appertain  to  the  concerns  of 
said  company. 

That  the  original  corporators  failed  to  obtain  subscriptions  for  stock 
sufficient  to  organize  tlie  company  till  184G.  That  on  the  19th  of  Ma}', 
1846,  a  board  of  directors  was  elected,  who  organized  their  body  on  the 
same  day  by  electing  Robert  Schuyler  president,  which  office  he  con- 
tinued to  hold  till  his  resignation  thereof  July  4,  1854.  That  on  the 
9th  of  July,  1846.  the  board  of  directors  established,  b}'  certain  by-laws 
adopted  by  them,  a  system  concerning  the  transfer  of  stock  of  the  com- 
pan}-  and  the  issuing  of  certificates  therefor,  according  to  which  stocks 
were  transferable  only  on  the  books  of  the  company  b\-  the  shareholder 
or  his  attorne}'  duly  appointed,  and  on  the  surrender  of  the  certificate 
held  by  him  when  an}'  certificate  had  been  issued.  The  same  by-laws 
prescribed  the  form  of  the  transfer,  as  follows  :  — 

:i  New  York  and  New  Haven  Railroad  Company. 

*?  No.  10,002. 

^  ^  Capital  $3,000,000.                          Shares  $100  each. 

-  New  York  Office. 

For  value  received  .  .  .  hereby  assign  and  transfer  unto  .   .  . 
all  right,  title  and  interest  in  .  .  .  shares  in  the  capital  stock  of 
^      the  New  York  and  New  Haven  Railroad  Companj'. 
5^         New  York,  .  .  .  ,  18  .  . 

And  transfer  books  were  provided  for  the  use  of  the  agents,  in  which 
transfers  of  this  form  were  printed  in  blank  ;  and  the  by-laws  also 
directed  that  a  form  of  stock  certificate  should  be  adopted  ;  and  one 
was  adopted  and  invariably  used  .  .  .  with  a  blank  assignment  and 
power  of  attorney  printed  upon  the  back  of  it,  as  follows  :  — 


^2 


390  NEW   YORK,    ETC.    RAILROAD   CO.    V.    SCHUYLER.         [CHAP.  II. 

New  York  and  New  Haven  Railroad  Company. 

No.  5,294. 

Capital  83,000,000.  Shares  $100  each. 

New  York  Office. 

Be  it  known,  that  .  .   .  entitled  to  .  .  .  shares  of  the  capital 

stock  of  the  New  York  and  New  Haven  Railroad  Company,  trans- 

.    ferable  on  the  books  of  the  company,  at  its  office,  in  the  cit}-  of 

§    New  York,  by  the  said  .  .   .  or  .  .   .  attorney,  on  the  surrender 

S    of  this  certificate. 

O 

%        New  York,  .  .  .  ,  18  .  . 

o  '  •  '  1  Transfer  Agent. 

w        Know  all  men  by  these  presents,  that  .  .  .  for  value  received, 
^    ha  .  .  bargained,  sold,   assigned    and   transferred,   and   b}'  these 
B    presents  do  bargain,  sell,  assign  and  transfer  unto  .  .  .  of  .   .   . 
t    shares  in  the  capital  stock  of  the  New  York  and  New  Haven  Rail- 
^    road  Company,  standing  in  .  .  .  name  on  the  books  of  the  said 
§    company,  and  transferable  only  at   its  office  in  the  city  of  New 
g    York.     And  ...  do  hereby  constitute  and  appoint  .  .  .  true  and 
^    lawful  attornej-  irrevocable,  for  .   .   .  and  in  .  .  .  name  and  stead, 
^    but  to  ...  ,  use,  to  sell,  assign,  transfer  and  set  overall  or  any 
part  of  the  said  stock  ;  and  for  that  purpose  to  make  and  execute 
all  necessar}'  acts  of  assignments  and  transfer,  and  one  or  more 
persons  to  substitute  with  like  full   power,   hereby  ratifying  and 
confirming  all  that  .  .  .  said  attorney  or  .  .  .  substitute  or  substi- 
tutes shall  lawfull3'  do  by  virtue  hereof. 

In  witness  hereof  .    .    .    hereunto  set  .  .  .  hand  and   seal,  the 
.  .  .  day  of  ...  ,  one  thousand  eight  hundred  and  fifty  .   .  . 
Sealed  and  delivered  in  the  presence  of  .   .    . 

These  certificates,  with  the  blank  assignment  and  power  of  attorney 
upon  them,  were  printed  and  bound  in  books  with  margins  for  entering 
the  time  of  issuing  the  certificate,  the  number  of  shai-es,  the  number 
of  the  certificate  and  to  whom  issued  ;  which  margins  remained  bound  in 
the  books  after  the  certificates  were  cut  out  and  issued,  and  constituted 
a  memorandum  of  all  the  certificates  issued  ;  these  books  were  fur- 
nished b}'  the  company  to  the  transfer  agents.  A  stock  ledger  was 
also  kept,  in  which  each  stockholder  was  credited  with  the  shares 
transferred  to  him  and  debited  with  those  transferred  by  him,  and  in  a 
separate  column  in  each  stockholder's  account  was  entered  the  number 
of  shares  represented  b}'  each  certificate  issued  to  him  and  the  number 
of  the  certificate,  and  when  a  certificate  was  surrendered,  a  line  was 
drawn  through  this  entr}',  so  that  the  uncancelled  charges  in  the  cer- 
tificate column  indicated  the  amount  of  each  stockholder's  stock  repre- 
sented by  outstanding  certificates,  and  b}'  a  comparison  of  the  aggre- 
gate of  such  chai'ges  with  the  aggregate  balances  of  every  stockholder's 


SECT.  IV.]         NEW    YORK,    ETC.    RAILROAD    CO.    V.    SCHUYLER.  391 

account,  any  over-issue  of  certificates  would  be  made  to  appear.  These 
books  were  not  accessible  to  the  public,  and  dealers  in  stock  had  no 
means  of  information  as  to  the  title  of  parties  proposing  to  dispose  of 
stock,  except  such  as  was  furnished  by  the  certificates  above  mentioned 
or  by  the  agents  of  tlie  company. 

That  on  the  3d  day  of  February,  1847,  Robert  Schuyler  was  ap- 
pointed transfer  agent  of  the  compan}-  at  the  city  of  New  York,  and  a 
transfer  office  was  established  in  that  city  ;  other  offices  and  agencies 
were  also  established  in  the  cities  of  Boston  and  New  Haven.  From 
that  time  forward  to  and  including  July  3d,  1854,  the  entire  control 
and  management  of  tlie  transfer  office  and  agency  at  New  York  was 
left  in  the  hands  of  said  Schuyler,  without  any  examination  or  interfer- 
ence on  the  part  of  said  company  or  its  directors,  he  being  also,  during 
the  whole  period,  the  president  of  the  company  and  one  of  its  direc- 
tors (and  the  meetings  of  the  board  of  directors  appear  from  the 
minutes  to  have  been  held  at  his  office  in  New  York). 

Tliat  in  August,  1851,  the  board  of  directors  resolved  to  fill  up  the 
capital  stock  to  $3,000,000,  being  30,000  shares,  and  directed  that  the 
same  be  apportioned  amongst  the  existing  shareholders  as  then  stand- 
ing on  the  stock  ledger;  such  distribution  was  made,  and  the  stock 
(except  68  shares  not  taken,  which  remained,  in  part,  undisposed  of 
till  October  15,  1849)  was  taken  by  such  distributees  ;  tliat  the  stock 
originally  subscribed,  and  that  afterwards  distributed,  was,  in  most 
cases,  transferred  on  behalf  of  the  company  by  one  of  the  transfer 
agents  to  the  person  entitled,  and  certificates  were  issued  by  such 
agent  in  the  form  above  set  forth  ;  that  during  the  time  Schuyler  was 
such  agent,  transfers  of  stock  were  made  on  the  books  to  the  transfer 
agents  on  account  of  the  company,  and  such  stock  afterwards  disposed 
of  by  such  agents  ;  that  Robert  Schuyler  was  a  member  of  the  firm  of 
R.  &  G.  L.  Schuyler  ;  that  said  firm  held  large  amounts  of  the  stock 
of  the  company,  and  from  its  organization  to  July  3,  1864,  were  large 
and  constant  dealers  therein,  and  Robert  Schuyler,  as  transfer  agent 
during  this  whole  period,  attended  to  transfers  and  issued  certificates 
to  them  in  the  same  manner  that  he  did  of  stock  standing  in  the  names 
of  other  persons,  and  no  restriction  appears  at  any  time  to  have  been 
put  by  the  company  upon  his  oflBcial  action  toward  or  with  his  said 
firm. 

On  the  first  day  of  February,  1848,  Robert  Schuyler,  as  such  trans- 
fer agent,  commenced  the  over-issue  of  certificates  to  his  said  firm,  and 
m  tliat  day  such  over-issue  was  sixty  shares  :  and  such  over-issue  con- 
tinued thenceforth,  and  at  all  times  thereafter  there  was  over-issue  of 
certificates  in  the  stock  account  of  R.  &  G.  L.  Schuyler.  On  the  20th 
of  March,  1848,  the  over-issue  by  transfer  commenced,  and  on  that  day 
the  number  of  shares  transferred  by  R.  &  G.  L.  Schuyler  exceeded  the 
number  transferred  to  them  by  sixty  sliares.  Such  excessive  transfers 
continued  till  January,  1849,  the  amount  thereof  fluctuating  from  time 
tiO  time  as  transfers  wore  made  to  and  by  R.  &  G.  L.  Schuyler,  but  the 


392  NEW    YORK,   ETC.    RAILROAD    CO.    V.    SCHUYLER.         [CHAP.  IL 

balance  on  the  books  of  the  company  was  against  them  at  all  times 
during  that  period.  The  excessive  issues  of  such  stock  so  transferred 
on  the  books  of  the  company  by  R.  &  G.  L.  Schuyler,  were  credited  to 
the  transferees  in  their  respective  accounts,  and  when  retransferred 
were  charged  in  such  accounts  and  credited  to  the  new  transferee. 
These  transfers  were  made  in  great  part  under  the  power  of  attorne}- 
executed  in  blank  by  R.  &  G.  L.  Schuyler  indorsed  on  the  over-issued 
certificates,  by  the  holders  thereof,  and  such  certificates  were,  on  mak- 
ing such  transfers,  brought  in,  surrendered  and  cancelled.  During  this 
period,  the  amount  of  the  over-issued  certificates  and  over-issued 
transfers  was  not  in  excess  of  the  30,000  shares  of  the  authorized 
capital  of  the  company. 

On  the  10th  of  January,  1849,  the  excessive  transfers  amounted  to 
1,191  shares,  but  between  that  day  and  the  31st  of  Januar}',  shares 
were  transferred  to  R.  &  G.  L.  Schuyler  by  various  persons,  sufficient  to 
turn  the  balance  of  transfers  in  their  favor.  In  August,  1851,  when 
the  5,000  additional  stock  was  distributed,  the  firm  of  R.  «fc  G.  L. 
Schuyler  had  standing  to  their  credit  854  shares  ;  and  in  making  the 
distribution  and  dividend  in  that  month,  the  stocks  previously  trans- 
ferred to  the  various  persons  holding  the  over-issued  certificates,  were 
treated  by  the  company  as  genuine  stock  ;  there  was  at  this  time  out- 
standing certificates  issued  to  that  firm,  beyond  the  amount  of  their 
credits,  for  1,277  shares  ;  that  the  over-issued  certificates  continued  to 
increase  till  October  17,  1853,  at  which  time  it  had  reached  7,042 
shares,  but  the  number  of  incoming  certificates  up  to  that  time  had  not 
exceeded  the  credits  of  R.  &  G.  L.  Schuyler  by  transfers  made  to 
them,  so  that  on  the  17th  of  October,  1853,  their  account  showed  a 
balance  by  transfer  to  them  of  four  shares.  On  that  day  a  transfer  of 
100  shares  was  charged  to  them,  and  thenceforward  to  and  including 
July  3,  1854,  the  balance  of  transfers  against  them  continued  to  in- 
crease until  it  reached  17,497  shares,  and  at  the  same  date  the  out- 
standing certificates  against  them  amounted  to  1,648  shares.  All  the 
certificates  issued,  including  the  false  and  over-issued  certificates,  were 
regularl}'  entered  in  numerical  order  in  the  certificate  books  and  stock 
ledger,  and  an  examination  of  such  books  would  at  all  times  have 
shown  what  certificates  were  outstanding,  and  a  comparison  between  the 
footings  of  the  several  books  would  have  shown  whether  R.  &  G.  L. 
Schuyler  were  or  were  not  entitled  to  receive  certificates. 

The  over-issued  certificates  and  transfers  were,  in  all  cases  in  w'hich 
■jdgments  have  been  given  to  defendants,  purchased  or  received  by 
them  in  good  faith  on  the  payment  or  advance  of  monev.  It  was  an 
established  usage  in  the  city  of  New  York  to  make  purchases  of  stock 
and  make  loans  thereon  on  the  faith  of  such  certificates,  with  the 
assignment  and  power  of  attorne\-  thereon  executed  in  blank  by  the 
party  to  whom  originall}'  issued,  and  they  were  transferred  in  the 
course  of  business  from  hand  to  hand  by  delivery.  It  was  a  usage  also 
to  take  transfers  of  stock  in  the  course  of  dealing  on  the  books  of  the 


SECT.  IV.]        NEW   YORK,    ETC.    RAILROAD    CO.    V.    SCHUYLER.  .393 

corporation  without  recoiviiig  a  certificate;  and,  according  to  the  ordi- 
nary mode  of  business,  transfers  were  not  allowed  b}-  corporations  with- 
out tlie  surrender  and  cancellation  of  the  outstanding  certificate  when 
one  had  been  issued  ;  and  according  to  the  usage  among  corporations  in 
New  York,  dealers  in  their  stock  were  not  allowed  access  to  their  books, 
and  it  was  not  the  custom  for  dealers  to  make  examinations  thereof. 
That  the  stock  of  the  New  York  &  New  Haven  Railroad  Company  was 
largel}'  dealt  in,  in  the  cit}'  of  New  York,  by  the  delivery  of  certificates 
and  assignments  in  blank,  and  large  amounts  of  such  certificates  wero 
constantly  in  circulation,  and  many  of  them  purported  to  be  issued  to  R. 
&  G.  L.  Schuyler,  and  were  signed  by  Robert  Schuyler  as  transfer  agent. 

In  many  cases  where  valid  certificates  of  stock  had  been  issued  to 
R.  &  G.  L,  Schuyler  for  stock  actually  belonging  to  them,  and  out- 
standing to  their  credit  on  the  books  at  the  time,  and  while  such 
certificates,  with  the  usual  assignments  and  powers  of  attoinev  exe- 
cuted in  blank  were  outstanding  in  the  hands  of  bonajide  holders,  the 
stock  was  permitted  to  be  transferred  by  R.  Schuyler  in  the  firm  name 
to  other  persons,  who  took  the  same  for  value  in  good  faith,  without 
the  surrender  of  the  outstanding  certificates.  The  rule  on  this  subject, 
as  established  ])y  the  by-laws,  was  generally  observed,  but  in  the  case 
of  R.  &,  G.  L.  Schuyler  and  a  few  other  persons,  it  was  disregarded  by 
R.  Schuyler  and  the  clerks  of  his  office. 

That  the  railroad  company  kept  no  bank  account  for  the  deposit  of 
moneys  ;  that  mone}'  received  on  behalf  of  the  company  on  construc- 
tion account  from  time  to  time  by  Robert  Schuylei',  as  president  or 
transfer  agent,  was,  from  time  to  time,  deposited  bj'  him  in  the  bank 
accounts  of  the  firm  of  R.  &  G.  L.  Schuyler,  and  when  payments  were 
made  by  Schuyler  on  behalf  of  the  company,  the  money  was  obtained  by 
R.  Schuyler ;  that  large  amounts  were  so  obtained  from  time  to  time, 
and  frequently'  from  the  firm  of  R.  &.  G.  L.  Schuyler  ;  that  said  moneys 
were  drawn  out  from  time  to  time  as  needed  on  their  checks  ;  that  the 
money  so  obtained  b}'  R.  Schuyler  was  raised  b}-  the  said  Robert 
Schuyler  in  the  name  of  his  said  firm  of  R.  &  G.  L.  Schuyler  indis- 
crirainatel}'  on  genuine  and  spurious  certificates  of  the  stock  of  said 
company  ;  but  it  is  not  found  to  what  time  such  moneys  continued  to 
be  raised. 

The  firm  of  R.  &  G.  L.  Schuyler  failed  July  3,  1854,  and  R.  Schuyler, 
on  the  morning  of  the  4th  of  Juh',  by  letter,  resigned  the  offices  of 
president,  director  and  transfer  agent,  and  called  the  attention  of  the 
board  of  directors  to  the  over-issues  appearing  in  the  books.  It  is  also 
found  b^'  the  court  that  up  to  that  time  "  there  was  no  evidence  of  any 
actual  knowledge  In*  an}-  of  the  other  directors  of  an}'  fraudulent  acts 
on  the  part  of  Schuyler  in  the  performance  of  his  duties  as  transfer 
agent,"  and  the  evidence  tended  to  establish  that  he  stood  high  in  the 
confidence  of  the  communit}'  as  a  man  of  integrit}'  and  business  capa- 
city ;  but  the  court  further  found  "  that  a  proper  examination  of  the 
books  b}'  the  directors  would  have  enabled  them  to  discover  the  frauds 


394  NEW   YORK,    ETC.    RAILROAD   CO.    V.    SCHUYLER.         [CHAP.  IL 

which  were  perpetrated  b}-  Schuyler,  and  that  the  board  of  directors 
was  guilt}-  of  negligence  in  not  making  such  examination,  and  in  leav- 
ing the  entire  charge  and  control  of  the  transfer  of  shares  and  giving 
of  certificates  with  Schuyler  without  making  such  examinations,"  and 
"  that  the  plaintiffs,  by  their  transfer  agent  or  clerks,  carelessly,  negli- 
gently and  improperly  conducted,  in  relation  to  the  transfer  of  the 
stock  on  the  books  of  the  company  and  the  issuing  of  certificates  there- 
for, in  the  allowance  of  transfers  of  shares  of  stock  on  the  books  of  the 
company  and  in  issuing  certificates  therefor,  when  no  such  shares 
existed,  or  when  such  certificates  were  not  true,  and  in  permitting 
transfers  of  spurious  stock  to  be  made  on  the  books  of  the  company 
and  certificates  of  spurious  stock  to  be  issued  to  persons  who,  in  good 
faith,  advanced  mone}'  or  other  property  thereon,  and  in  permitting 
shares  of  stock  to  be  transferred  to  other  persons  than  those  holding 
the  certificates  thereof  without  requiring  a  surrender  of  such  cer- 
tificates." 

"That  the  defendants  received  their  transfers  of  stock  through  the 
acts  and  neglect  of  the  transfer  agent,  or  of  the  oflScers  of  said  com- 
pany, or  certificates  issued  by  the  acts  and  neglect  of  the  transfer  agent 
and  officers  of  the  company,  or  certificates  of  stock  valid  when  issued, 
but  rendered  valueless  by  the  fraudulent  or  negligent  pursuance  of 
transfers  of  such  stock  to  subsequent  bona  fide  purchasers  without  the 
suiTender  of  the  outstanding  certificates  ;  and  have  been  misled  b}'  the 
acts  and  neglect  of  the  transfer  agent  or  officers  of  said  compan}-,  in 
relation  to  such  transfers  and  certificates,  and  have,  in  good  faith,  and 
without  any  violation  on  their  part  or  in  their  knowledge  of  the  b}-- 
lavv's  and  rules  of  the  company,  advanced  mone^'  and  other  considera- 
tions on  the  faith  of  such  transfers  and  certificates." 

Geo.  F.  Comstock  and  William  Tracy.,  for  the  plaintiffs. 

Chas.  0'  Conor  and  C.  A.  Jlapallo,  Mann  &  Rodman.,  J.  Larocque, 
W.  Hutchins,  W.  H.  Peckliam.,  Jno.  31.  Buckingham  and  D.  D. 
Field,  Barlow  <&  Kennedy.,  Wm.  M.  Foai'ts,  Judali  &  Dickman., 
Weeks,  DeForest  &  Foster,  C.  ISf.  Potter,  A.  W.  Lord,  D.  D.  Lord, 
J.  S.  /Stearns,  Dan.  Marvin,  W.  Rutherford,  J.  E.  Parsons,  for  various 
defendants. 

Uavls,  J.^  This  somewhat  summary  disposition  of  the  preliminary 
points  of  the  case  leaves  an  open  path  to  its  meritorious  questions. 
some  of  which,  however,  ma}-  be  disposed  of  even  more  summaril}'. 
One  of  these  is  the  question  whether  the  stock  purporting  to  be  created 
by  the  false  certificates  and  fraudulent  transfers  of  Schuyler  can  be 
valid  stock  of  the  corporation  and  become  part  of  its  capital.  In  the 
nature  of  things  this  is  impossible.  A  corporation  with  a  fixed  capital 
divided  into  a  fixed  number  of  shares  can  have  no  power  of  its  own 
volition,  or  by  any  act  of  its  officers  and  agents,  to  enlarge  its  capital 
or   increase   the    number   of  shares   into   which   it   is   divided.     The 

^  After  discussing  questions  as  to  procedure.  —  Ed. 


SECT.  IV.]         NEW   YORK,    ETC.    KAILEOAD   CO.    V.    SCHUYLER.  395 

supreme  legislative  power  of  the  State  can  alone  confer  that  authority 
and  remove  or  consent  to  the  removal  of  restrictions  which  are  part  of 
the  fundamental  law  of  the  corporate  being  ;  and  hence  every  attempt 
of  the  corporation  to  exert  such  a  power  before  it  is  conferred,  by 
any  direct  and  express  action  of  its  officers  is  void ;  and  hence 
ever}-  indirect  and  fraudulent  attempt  to  do  so  is  void  ;  for  if  such  a 
result  cannot  be  accomplished  directly  by  the  whole  machinery  of  the 
corporate  powers,  it  is  absurd  to  suppose  that  it  can  be  produced  by 
the  covert  or  fraudulent  efforts  of  one  or  more  of  the  agents  of  the 
corporation.  .   .  . 

Another  important  legal  proposition  in  the  case  is  so  clear  upon 
principle,  and  so  distinctly  settled  by  authority,  that  nothing  but  con- 
fusion can  flow  from  its  discussion.  It  will  bear  no  more  than  plain 
enunciation.  A  corporation  is  liable  to  the  same  extent  and  under  the 
same  circumstances  as  a  natural  person  for  the  consequences  of  its 
wrongful  acts,  and  will  be  held  to  respond  in  a  civil  action  at  the  suit  of 
an  injured  part}'  for  every  grade  and  description  of  forcible,  malicious 
or  negligent  tort  or  wrong  which  it  commits,  however  foreign  to  its  na- 
ture or  beyond  its  granted  powers  the  wrongful  transaction  or  act  may 
be.  (Life  and  Fire  Ins.  Co.  v.  ISIechanics'  Fire  Ins.  Co.,  7  "Wend.  31  ; 
Angell  on  Corp.,  §§  382,  388,  391  ;  Albert  v.  Savings  Bank,  2  Mary. 
Dec.  169  ;  Goodspeed  v.  East  Haddam  Bank,  22  Conn.  541  ;  Bissell  v. 
Michigan  Southern  and  Northern  Indiana  Railroad  Co.,  22  N.  Y.  30o-v 
309,  per  Selden,  J.;  1  Wend.  Black,  [note],  476;  Green  v.  London 
Omnibus  Co.,  7  C.  B.  290  [N.  S.]  ;  Frankfort  Bank  v.  Johnson,  24 
Maine,  490  ;  Philadelphia  and  Baltimore  Railroad  Co.  v.  Quigly,  21 
How.  U.  S.  209,  and  cases  cited  by  Campbell,  J.) 

It  follows,  from  this  proposition,  that  if  it  were  established  in  this 
case  that  the  corporation  itself  issued  the  false  certificates  of  stock  and 
permitted  the  fraudulent  transfers  of  spurious  stock,  it  would  be  liable 
to  the  party  directly-  deceived  and  injured  by  that  transaction.  The 
incapacity  to  create  the  spurious  stock  would  be  no  defence  to  an 
action  for  damages  for  the  injury.  On  the  contrar}-,  that  verv  inca- 
pacity, since  it  would  render  the  certificate  or  transfer  a  fraud  and 
deceit,  would  itself  be  the  cause  of  the  injur}-  and  the  basis  of  re- 
covery. No  court  would  hear  the  corporation  assert  that  its  wrongful 
act  was  be^'ond  its  chartered  powers,  and  therefore  inefl^ective  to 
charge  it  with  the  injurious  consequences  of  the  fraud.  But  in  this 
case  the  false  certificates  were  issued  and  the  spurious  stock  trans- 
ferred by  an  officer  of  the  corporation.  A  corporation  aggregate  being 
an  artificial  body  —  an  imaginar}'  person  of  the  law,  so  to  speak  —  is, 
from  its  nature,  incapable  of  doing  an}-  act  except  through  agents  to 
whom  is  given  by  its  fundamental  law,  or  in  pursuance  of  it,  every 
power  of  action  it  is  capable  of  possessing  or  exercising.  Hence  the 
rule  has  been  established,  and  may  now  also  be  stated  as  an  indispu- 
table principle,  that  a  corporation  is  responsible  for  the  acts  or  negli- 
<rence  of  its  agents  while  engaged  in  the  business  of  the  agency,  to  the 


396  NEW   YORK,    ETC.    RAILROAD    CO.    V.    SCHUYLER.         [CHAP.  IL 

same  extent  and  under  the  same  circumstances,  that  a  na{,urai  person 
is  chargeable  with  the  acts  or  negligence  of  his  agent ;  and  '•  there  can 
be  no  doubt,"  says  Lord  Ch.  Cranworth  in  Ranger  v.  The  Great 
Western  R.  R.  Co.,  "that  if  the  agents  employed  conduct  themselves 
fraudulently  so  that  if  they  bad  been  acting  for  private  employers  the 
persons  for  whom  they  were  acting  would  have  been  affected  b}-  their 
fraud,  the  same  principles  must  prevail  where  the  principal  under 
whom  the  agent  acts  is  a  corporation,"  (5  House  of  Lords  Cases,  86, 
87  ;  Thayer  v.  Barlow,  19  Pick.  511 ;  4  Serg.  &  Rawl.  16  ;  7  Wend.  31  ; 
Frankfort  Bank  v.  Johnson,  24  Maine,  490  ;  Story  on  Agency,  sec.  308  ; 
Angel  &  Ames  on  Corp.  sec.  382,  388.) 

This  brings  us  to  consider  the  propositions  on  which  the  liability  of 
the  company  to  respond  in  damages  to  the  ilefendants  must  depend. 
They  are  either  general  as  applicable  to  all  of  the  defendants,  or 
special  as  growing  out  of  the  particular  facts  of  some  one  or  more  of 
the  defendants  ;  and  it  is  impracticable,  without  danger  of  injustice,  to 
group  the  cases  of  all  the  defendants  together  and  consider  them  in 
mass,  however  desirable  that  course  might  be  in  order  to  avoid  pro- 
lixit}'.  In  one  general  proposition  an  inquiry  is  primarily  involved  into 
the  duties  concerning  its  stock  which  the  corporation  owed  to  the 
public  and  especially  to  all  who  might  become  dealers  therein.  The 
charter  of  the  company  was  voluntarily  sought  and  accepted.  It 
created  a  private  trading  body  having  in  view  pecuniary  gains  and 
advantages.  The  legislature  limited  the  capital  and  fixed  the  number 
of  shares  into  which  it  might  be  divided,  and  declared  them  to  be 
personal  propert}'  to  be  transferred  in  such  manner  and  at  such  times 
and  places  as  the  by-laws  of  the  company  should  direct,  and  then 
handed  over  to  the  directors  a  discretion,  restrained  only  by  the  laws 
of  the  State  and  the  United  States,  to  enact  bj'-laws  touching  the  dis- 
position and  management  of  the  stock,  the  transfer  of  shares,  the 
duties  and  conduct  of  officers,  "  and  all  other  matters  that  might  ap- 
pertain to  the  concerns  of  the  company."  These  powers  were  sought 
and  granted  with  a  view  to  well  known  and  established  commercial 
usages.  It  was  doubtless  a  matter  of  choice  to  what  extent  the  com- 
pan}'  would  exercise  them,  but  the  directors  chose  to  use  them  in  their 
broadest  significance.  They  proceeded  to  enact  by-laws  to  regulate  the 
transfer  of  stock  and  the  issuing  of  certificates  on  such  transfers. 
They  adopted  a  form  of  transfer,  of  certificate  and  of  assignment  and 
power  of  attorney  indorsed  thereon,  and  gave  them  every  chai-acter- 
istic  of  negotiability  in  their  power  to  confer.  They  sought  the  com- 
mercial centre  of  this  continent  and  there  established  a  transfer  office 
and  agenc}',  and  thus  gave  and  secured  the  most  unbounded  facilities 
for  dealing  in  the  stock.  Their  purposes,  obviously,  were  to  lay  hold 
of  the  advantages  which  such  facilities  were  sure  to  bring  to  the  stock 
by  enhancing  its  monetary  and  convertible  value.  This  course  was 
legitimate  ;  but  it  brought  with  it  corres|)onding  duties  and  obligations. 
I  cannot  doubt  but  that  upon  general  and  long  established  principles  of 


SECT.  IV.]         NEW    YORK,    ETC.    RAILROAD    CO.    V.    SCHUYLER.  397 

law,  tlie  corporation  became  bound  to  the  exercise,  in  tbis  branch  of 
its  business,  of  such  ordinary  care  and  skill  as  should  afford  to  dealers 
a  safe  and  reliable  mode  of  acquiring  title  to  its  shares  in  the  form  of 
transfers  and  certificates  as  provided  by  its  by-laws.  "  The  law  always 
imposes  upon  every  one  who  attempts  to  do  anything  even  gratuitously 
for  another,  some  degree  of  care  and  skill  in  the  performance  of  what 
he  has  undertaken.  .  .  .  Mere  negligence,  where  there  is  no  obligation 
to  use  care,  as  where  a  man  digs  a  pit  upon  his  own  land  and  leaves  it 
open,  affords  no  ground  of  action,  but  where  there  is  anything  in  the 
circumstances  to  create  a  duty  to  an  individual  or  to  the  public,  any 
neglect  to  perform  that  duty  from  which  injury  arises,  is  actionable." 
(Per  Selden,  J.,  in  Nolton  v.  Western  R.  R.  Co.,  15  N.  Y.  444  ;  Coggs 
V.  Bernard,  Ld.  Raym.  909.)  .   .  . 

I  cannot,  therefore,  subscribe  to  the  idea  that  the  duties  of  the 
plaintiffs,  in  respect  to  their  stock,  were  limited  to  themselves  and 
existing  shareholders.  They  extended  also  to  the  commercial  com- 
munit}-  whose  confidence  and  trade  the  plaintiffs  invited,  and  who  in 
turn  were  entitled  to  good  faith  and  fair  dealing  at  the  hands  of  the 
company  ;  and  the3'  sprang  into  full  vigor  in  behalf  of  every  party 
■who  entered  upon  such  dealing. 

The  next  important  general  inquiry  is  into  the  manner  in  which  the 
plaintiffs  discharged  those  duties  at  their  New  York  agency,  with  a 
view  to  determine  whether  their  conduct  has  been  of  such  a  character 
that  the  law,  in  behalf  of  innocent  parties,  and  to  prevent  injustice, 
will  imply  authorit}-  in  the  agent  to  do  the  acts  that  have  occasioned 
the  injury,  on  the  principle  of  estoppel  in  2)t(is.  This  inquiry  w^as  not 
involved  in  the  case  of  the  Mechanics'  Bank  against  these  plaintiffs 
(3  Kern.  599),  for  the  facts  upon  which  it  arises  were  not  then  before 
the  Court,  and  the  questions  discussed  did  not  embrace  them.  The 
only  question  of  estoppel  considered  in  that  case  was  the  one  arising 
on  the  face  of  the  certificate  itself,  and  the  learned  judge  who  pro- 
nounced the  opinion  was  very  careful  to  define  the  limits  of  the  au- 
thority as  they  appeared  in  that  case,  and  to  declare  that  the  appoint- 
ment, by  its  terms,  did  not  include  the  acts,  and  that  there  was  ''no 
pretence  that  the  authority  conferred  was  ever  enlarged  by  any  holding 
out  or  recognition  of  such  acts."     (3  Kern.  636.) 

The  doctrine  of  implied  agency,  when  it  arises  out  of  negligence,  I 
think,  has  its  true  basis  in  the  principle  of  estoppel  in  pais.  That 
principle,  as  said  by  Wilde.  B.,  in  Swan  v.  The  North  British  Austra- 
lasian Co.  (7  Hurlst.  &  Norm.  603),  is  based  on  the  injustice  of  allow- 
ing a  party  to  be  the  author  of  his  own  misfortune,  and  then  charging 
the  consequences  ui)on  others,  and  "  it  all  along  implies  an  act  in  itself 
invalid,  and  a  person  who  is  forbidden  for  equitable  reasons  to  set  up 
that  invalidity."  The  facts  on  which  this  question  arises  are  in  part 
the  same  as  those  upon  which  the  extent  of  Schuyler's  actual  agency  is 
to  be  determined.*  .  .  .  From  1848   down  to   1854,    all  these  frauds 

*  Here  the  iacts  were  summarized.  —  Ed 


398  NEW    YORK,   ETC.    RAILROAD    CO.    V.    SCHUYLER.         [CHAP.  IL 

were  written  down  in  tlie  books  of  the  company.  .  .  .  From  1849  to 
1854,  the  clerks  in  the  office  knew  of  the  over-issue  of  certificates.  .  .  . 
It  is  apparent  that  the  use  of  ordinary  care  and  diligence  at  any  time 
after  March,  1848,  would  have  disclosed  that  Schuyler's  management 
was  fraudulent  both  as  to  the  company  and  the  public,  and  likely  to 
lead  to  the  disasters  that  have  followed  upon  it.  It  is  a  mistake  to 
suppose  that  his  frauds  commenced  in  October,  1853.  They  were 
equally  gross  in  turpitude,  though  not  in  amount,  for  a  period  of  five 
3'ears  before  that  date  ;  and  nothing  but  the  ability  of  the  company  to 
increase  the  capital  from  two  and  a  half  to  three  millions,  has  pre- 
vented all  excesses  beyond  the  first  named  sum  from  falling  under  the 
same  ban  of  utter  spuriousness.  The  arrangement,  by  virtue  of  which 
the  transfers  made  on  false  certificates  before  the  increase  of  the  capi- 
tal became  genuine  stock,  may  have  been  made  in  ignorance  ;  but  it 
was  an  ignorance  based  on  a  negligence  so  gross  that  the  fact  becomes 
as  potent  as  though  the  truth  had  been  known.  It  may  have  been  in 
ignorance  that  the  company  received  the  benefit  of  "large  sums" 
raised  by  Schuyler  indiscriminately  on  genuine  and  spurious  certifi- 
cates. Charity  may  grant  that,  but  equity  cannot  disregard  the  fact, 
for  it  was  a  duty  to  be  wise.  It  is  transparent  throughout  the  case, 
that  the  board  of  directors,  by  passive  submission  or  active  surrender, 
handed  over  to  Schuyler  the  substance  of  all  their  authority  relating  to 
their  business  in  New  York,  and  then  for  nearly  seven  years  lay  down 
to  sleep  in  supine  indifference  at  his  feet.  .  .  .  The  company  placed  in 
Schuyler's  hands  the  very  instrumentalities  by  which  the  injury  was 
wrought.  They  imposed  restrictions  upon  their  use,  but  they  omitted 
the  safeguards  that  ordinary  prudence  would  dictate,  to  discover  or 
prevent  their  abuse.  A  wrong  which  ordinary  care  will  prevent,  is  in 
a  legal  sense  caused  by  the  omission  of  that  care  where  it  is  a  duty  to 
use  it.  .  .  .  An  examination  was  a  duty,  because  it  was  the  obvious 
dictate  of  good  sense  as  the  easiest  and  safest  check  upon  the  agent's 
conduct.  The  long  continued  and  reckless  omission  was  therefore  a 
culpable  negligence,  without  the  concurrence  of  which  Schuyler  could 
not  have  committed  the  frauds  by  which  the  defendants  have  suffered  ; 
for  it  was  this  omission  of  duty  that  left  him  with  power  to  wield  the 
weapons  with  which  the  company  had  armed  him,  and  therefore  it  may 
be  said  to  have  led  directly  to  the  injurious  acts.  .  .   . 

It  is  not  in  such  cases  one  of  two  innocent  parties  who  is  to  suffer. 
The  question  is  between  an  innocent  and  a  culpable  party,  and,  as 
was  said  by  Denio,  J.,  in  The  Bank  of  Genesee  v.  The  Patchin  Bank, 
"I  see  no  objection  in  applying  the  principle  that  where  a  party  has, 
by  his  declaration  or  conduct,  induced  another  to  act  in  a  particular 
manner,  he  will  not  afterwards  be  permitted  to  deny  the  truth  of  his 
admission  if  the  consequence  would  be  to  work  an  injury  to  such  other 
person."  (3  Kern.  316.)  The  question  of  estoppel  is  one  of  ethics 
(per  Bronson,  J.,  in  Dezell  v.  Odell,  3  Hill,  225),  and  is  to  be  enforced 
where,  in  good  conscience  and  honest  dealing,  it  ought  to  be.   (Welland 


SECT.  IV.J         NEW   YORK,    ETC.    RAILROAD   CO.    V.    SCHUYLER.  399 

Canal  Co.  v.  Hathaway,  8  Wend.  483.)  "The  principle,"  says  Chan- 
cellor Kent  (2  Com.  620,  note  c),  "  that  pervades  the  distinction  on 
this  subject  rests  on  sound  and  elevated  moralitj'.  There  must  be  no 
deception  anywhere.  The  principal  is  bound  by  the  acts  of  his  agent 
if  he  clothe  him  with  powers  calculated  to  induce  innocent  third  per- 
sons to  believe  the  agent  had  due  authority"  to  act  in  the  given  case." 
"  He  who  created  the  trust,  and  not  the  purchaser,  ought  to  suffer." 
(Note  d.) 

On  the  question  of  privity  in  any  view  of  this  case,  I  have  no  diffi- 
culty. If  the  act  of  the  agent  can  be  charged  home  upon  an}'  principle, 
upon  the  corporation,  then,  as  was  said  in  the  Bank  of  Kentucky  v. 
The  Schuylkill  Bank  (1  Pars.  Eq.  Cas.  180),  "  the  bona  fide  holder  of 
any  certificate  issued  by  the  transfer  agents  has  a  primary-  and  direct 
claim,  either  to  be  admitted  as  a  corporator,  or  if  that  is  impracticable, 
from  the  excessive  issue  of  stock,  to  be  compensated  for  the  fraud  prac- 
tised upon  him."  To  entitle  the  aggrieved  party  to  sue,  in  such  case,  no 
privity  is  necessarj',  except  such  as  is  created  b}'  the  unlawful  act  and 
the  consequential  injury,  because  the  injured  party  is  not  seeking  re- 
dress upon  contract,  but  purely  for  the  tortious  act  in  the  commission 
of  which  the  contract  is  an  accidental  incident.  (Allen  v.  Addington, 
11  Wend.  374;  Thomas  ?7.  Winchester,  2  Seld.  397;  Scott  v.  Shep- 
herd, 3  Wils.  403  ;  Gerhard  v.  Bates,  2  Ell.  &  Bl.  489  ;  S.  C.  20  Eng. 
L.  &■  Eq.  129  ;  Redfield  on  Rail.  61  ;  Kortright  r.  Buffalo  Commercial 
Bank,  22  Wend.  xiM  sup.) 

That  the  Mechanics'  Bank  against  these  plaintiffs  was  not  decided 
on  any  question  of  want  of  privit}',  we  have  the  authorit}'  of  the 
judge  who  pronounced  the  opinion:  "We  certainl}-,"  he  says,  "did 
not  put  our  judgment  upon  the  ground  that  the  plaintiffs  were  not  in 
privity  of  dealing  with  the  defendants  by  reason  of  the  non-negotiable 
character  of  the  certificates,  and,  therefore,  could  not  sue  for  fraud." 
(Farmers'  and  Mechanics'  Bank  v.  Butchers'  and  Drovers'  Bank,  16 
N.  y.  151.) 

I  am,  therefore,  of  opinion  that  the  plaintiffs  are  estopped  by  the 
facts  and  circumstances  of  this  case,  to  deny  the  authorit}'  of  Schuyler 
to  do  the  acts  from  which  tlie  injurv  to  the  defendants  has  arisen. 

But  conceding  that  the  whole  question  of  this  case  is  governed  by 
the  law  of  principal  and  agent,  it  becomes  of  grave  significance  to 
ascertain  the  scope  and  extent  of  the  powers  conferred  on  the  agent. 
Herein,  I  think,  the  case  essentially  differs  from  that  of  the  Mechanics' 
Bank.  (3  Kern.  399.)  The  question  of  that  case  is  stated  b}'  Com- 
stock,  J.,  in  16  N.  Y.,  at  pages  154,  155,  with  succinctness  and  accur- 
acy. He  says  :  "In  that  case,  the  transfer  agent  of  the  defendants' 
corporation  was  authorized  to  sign  and  issue  certificates  of  stock  on  a 
transfer  from  one  sliareholder  to  another  upon  the  books,  and  on  the 
surrender  of  the  previous  certificates.  The  agent,  for  his  own  pur- 
poses, signed  and  issued  certificates  to  a  large  amount  where  there  had 
been  no  such  transfer  or  surrender.    These  unauthorized  and  spurious 


400  NEW    YORK,    ETC.    RAILKOAD    CO.    V.    SCHUYLER.         [CHAP.  II. 

instruments  were  in  form  precisel}-  like  tliose  that  were  genuine  and 
authorized.  Trusting  to  tlieir  false  appearance,  the  plaintiffs  took  one 
of  them  b}'  transfer  and  advanced  money  upon  it,  which  they  recovered 
in  the  New  York  Superior  Court.  We  held  they  could  not  recover, 
and  reversed  the  judgment,  placing  our  decision  prominently  upon  the 
ground  that  the  acts  of  the  agent  were  not  within  the  real  or  apparent 
scope  of  the  power  delegated  to  him." 

It  now  appears  that  the  agent,  in  addition  to  the  power  thus  stated, 
had  authorit}'  also  to  issue  certificates  in  precisely'  the  same  form,  to  the 
original  subscribers  for  the  stock,  and  to  some  extent  did  do  so ;  that 
he  had  authorit}-  to  dispose  of  the  stock  of  tlie  compan}-  not  taken  by 
the  original  subscribers  (of  which  there  was  a  large  amount),  and  issive 
certificates  in  the  same  form  to  the  purchasers  ;  that  he  had  authority 
to  dispose  of  certain  forfeited  shares,  and  in  such  case  issue  like  certifi- 
cates ;  that  he  had  authority  to  receive  transfers  to  himself  of  stocks 
on  behalf  of  tlie  company-,  and  transfer  the  same  to  purchasers  and 
issue  like  certificates  to  them  ;  that  before  the  increase  of  the  capital 
to  30,000  shares,  he  did  issue  to  his  own  firm  a  large  number  of 
false  certificates  which  became  the  basis  of  transfeis  on  the  books  to 
third  parties,  and  by  some  arrangement  were  absorbed  into  the  en- 
larged capital  as  genuine  stock ;  that  he  acted  to  some  extent  as 
financial  agent  of  the  company,  and  through  his  firm  raised  large 
amounts,  "  indiscriminate!}',  on  genuine  and  spurious  certificates  of 
stock,"  which  were  paid  out  on  the  check  of  the  firm  on  behalf  of  the 
compan}'  and  on  its  construction  account ;  that  to  him  was  intrusted 
the  keeping  of  all  the  stock  accounts  of  the  compan}'  and  its  dealers 
at  the  New  York  office,  and  in  those  accounts  he  entered  all  his  trans- 
actions, both  false  and  genuine  ;  that  the  books  were  kept  closed  to 
dealers  ;  that  his  management  of  the  affairs  of  the  office,  and  of  all 
these  various  matters,  was  never  investigated  or  questioned. 

It  is  in  all  these  facts  that  we  are  now  to  seek  for  "  the  real  or 
apparent  scope  of  the  power  delegated  to  him."  As  we  descend  from 
the  sharp  promontory  of  the  Mechanics'  Bank  case  to  this  broad  plane 
of  powers  and  their  mode  of  use,  we  stand  amongst  new  and  far  differ- 
ent lights  and  shadows.  We  find  ourselves  quite  unable  to  sa}',  with 
tlie  able  jurist  in  that  case,  "  He  (Schuyler)  had  no  power  to  sell  stock 
at  all,  and  none  to  issue  certificates  except  as  incidental  to  a  sale 
between  existing  stockholders,  and  then  it  depended  on  the  condition 
precedent  of  a  transfer  on  the  books  and  a  surrender  of  a  previous 
certificate  for  the  same  .stock."  Nor  to  say,  "  His  appointment  in  its 
ver}-  terms,  which  all  dealers  are  supposed  to  have  been  acquainted 
with,  did  not  include  his  acts,  and  there  is  no  pretence  that  it  was  ever 
enlarged  by  any  holding  out,  or  recognition  of  his  acts." 

When  his  certificate,  regular  in  form  in  all  respects,  is  offered  in  the 
market,  the  bu3'er  is  not  able  to  refer  it  to  the  narrow  restrictions  of 
the  b\'-law,  for  how  does  it  appear  that  it  is  not  one  issued  to  an  origi- 
nal subscriber,  where  there  was  no  transfer  to  be  made,  and  no  prior 


SECT.  IV.J         NEW    YORK,    ETC.    RAILROAD   CO.    V.    SCHUYLER.  401 

certificate  to  be  surrendered  ;  or  that  it  is  not  one  issued  to  a  purchaser 
of  the  original  stock  which  Scliuyler  was  empowered  to  sell  and  certify 
in  this  manner ;  or  that  it  is  not  of  stock  that  has  been  transferred  to 
the  agent  on  account  of  tlie  company  and  which  he  was  likewise 
authorized  to  sell ;  or  that  it  was  not  some  of  the  forfeited  shares  which 
he  was  directed  to  sell  and  certify  ;  or  that  it  was  not  of  the  kind 
which,  by  "  some  arrangement,"  is  absorbable  into  the  capital  as  genu- 
ine, even  if  it  be  in  fact  spurious  ;  or  that  it  is  not  issued  to  raise 
money  for  the  benefit  of  the  construction  fund  of  the  company  ;  or  that 
it  is  not  of  the  spurious  kind  which  the  company  have  heretofore 
allowed  to  be  cured  by  a  subsequent  acquisition  of  stock  by  the  Schuyl- 
ers,  and  a  transfer  thereafter  under  the  power. 

Whether  it  does  not  belong  to  some  one  of  these  classes  there  are  no 
earthly  means  of  ascertaining  save  b}-  the  representation  of  the  agent. 
The  books  are  sealed  ;  but  if  open  and  most  thoroughly  investigated 
they  would  not  necessarily  negative  the  power  to  issue  for  some  of  the 
purposes  for  which  authority  had  been  given,  directly  or  by  recogni- 
tion ;  for  even  if  run  down  to  absolute  spuriousness  it  is  still  open  to 
sa}',  this  is  of  the  kind  of  spurious  certificates  upon  which  the  com- 
pany raise  money  for  their  construction  accounts,  or  the  kind  which 
they  legitimatize  b}'  subsequent  arrangements  of  the  capital ;  or  the 
kind  which,  by  the  custom  of  dealing  becomes  good,  if  a  transfer  be 
made  under  it  at  a  moment  when  the  Schuyler  firm  happens  to  have  so 
much  stock  to  its  credit  on  the  books.  And  the  accounts  for  seven 
3-ears  show  that  all  these  kinds  are  treated  on  the  same  footing  as 
genuine  shares. 

It  is  a  well  recognized  branch  of  the  law  of  principal  and  agent, 
that  without  any  express  or  special  appointment,  an  implied  agency 
may  arise  from  the  conduct  of  a  part}-.  (Stor}'  on  Agency,  §  54.) 
"  Where  a  person  has  recognized  a  course  of  dealing  for  him  by  an- 
other or  a  series  of  acts  of  a  particular  kind,  an  implied  agenc}'  is 
thereby  constituted  to  carry  on  the  same  dealing  or  to  do  acts  of  the 
same  character.  .  .  .  There  ma}'  be  seeming  contradictions  of  the  fun- 
damental doctrine  that  a  principal  is  bound  only  by  such  acts  of  his 
agent  as  he  has  duly  authorized.  This  presumption  or  implied  agency 
is  one  of  these,  because  a  man  may  have  accepted  supposed  acts  which 
he  never  authorized,  and  so  be  bound  as  to  third  persons  by  similar 
acts."     (Per  Comstock,  J.,  16  N.  Y.  145,  146.) 

There  is  nothing  gained  to  the  plaintiffs  by  the  fact  that  the  certifi- 
cates are  made  to  the  firm  of  R.  &  G.  L.  Schuyler,  for  so  were  all  those 
which,  prior  to  October,  1853,  became  good  by  a  transfer  when  that  firm 
happened  to  be  in  credit  on  the  books  of  the  company  ;  so  were  those 
used  to  raise  money  for  construction  ;  and  so  of  those  which  went  in 
under  the  increased  capital.  It  is  a  general  rule  that  an  officer  or  agent 
is  not  to  be  permitted,  under  a  general  power,  to  certify  in  his  own 
favor.  (Claflin  v.  The  Farmers'  Bank,  25  N.  Y.  293.)  '  But  in  this 
case  that  rule  is  not  applicable,  for  it  clearly  appears  that  from  the 

26 


402  NEW   YORK,    ETC.    RAILROAD    CO.    V.    SCHUYLER.         [CHAP.  IL 

outset  this  firm  were  very  heavy  dealers  in  the  stocks  of  the  company, 
that  its  business  was  all  conducted  at  this  agencj',  and  that  Robert 
Schu3ler  at  all  times  certified  to  it  as  to  other  dealers.  The  long 
acquiescence  of  the  company  in  this  practice,  and  its  actual  ratification 
in  some  of  the  cases  above  mentioned  disarm  this  objection  of  all  force. 
(Ang.  &  Ames  on  Corp.  216  ;  and  see  Bradl}-  v.  Richardson,  2  Blatch. 
C.  C.  R.  343  ;  S.  C.  23  Vt.  720  ;  Story  on  Agency,  §  54.) 

In  this  view  of  the  extent  of  the  authority  with  which  Schuyler  was 
clothed  b}'  the  company,  either  by  direct  appointment  or  by  recognition 
and  ratification,  or  by  actual  enjoj^ments  of  the  fruits  of  his  acts,  or  by 
long  acquiescence  therein  from  which  a  presumption  or  implied  agenc}* 
arises,  I  have  come  to  the  conclusion  that  the  issuing  of  the  certificates 
by  him  must  be  held  to  be  within  the  scope  of  the  real  and  apparent 
authority  which  he  possessed  ;  and  the  remed}'  of  the  defendants  is  not 
prejudiced  by  the  fact  that  he  used  and  intended  to  use  the  avails  for 
his  own  purpose.  In  short,  thej'  stand  precisely  in  respect  to  the 
remedy  where  thej'  would  if  the  board  of  directors  had  issued  the  same 
certificates  in  fraud  of  their  powers  under  the  law,  and  obtained  the 
defendants'  moneys  thereon. 

But  these  views  do  not  dispose  of  a  question  that  has  been  argued  in 
this  case  with  an  elaboration  and  power  seldom  equalled  in  a  court  of 
justice.  From  the  manner  in  which  the  decision  of  the  judges  is  stated 
in  the  Mechanics'  Bank  case,  it  is  diflScult  to  tell  what  precise  points 
were  designed  to  be  passed  upon  by  the  court.  It  is  open  to  conjecture 
that  the  case  maj'  have  passed  off  on  the  ground  of  want  of  privity 
between  the  plaintiflJ's  and  defendants,  as  was  intimated  by  Selden, 
J.,  in  The  Farmers'  &  Mechanics'  Bank  v.  The  Butchers'  &  Drovers' 
Bank  (16  N.  Y.  142),  or  on  the  ground,  as  suggested  by  H.  R.  Selden, 
J.,  in  Griswold  v.  Haven  (25  N.  Y.  598),  "  that  Kyle  to  whom  the 
certificate  issued,  being  prny  to  the  fraud,  had  of  course  no  claim 
against  the  company',  and  that  his  assignees  could  have  no  greater 
rights  than  himself;"  or  upon  the  mistaken  idea  that  the  Court  of 
Errors,  in  reversing  The  North  River  Bank  v.  Aymar,  has  settled  the 
law  adversel}'  to  the  opinion  of  the  Supreme  Court  in  that  case. 

But  whatever  may  have  been  the  views  of  other  members  of  the 
court,  there  is  no  mistaking  the  ground  on  which  the  judge  who  pro- 
nounced the  opinion  intended  to  put  the  liability  of  a  principal  for  the 
acts  of  an  agent.  It  is,  in  brief,  that  a  principal  is  bound  only  by  the 
authorized  acts  of  his  agent.  The  proposition  involved  was  fairly 
put  b}-  the  learned  judge  in  this  form  :  "  Suppose  an  agent  is  author- 
ized bv  the  terms  of  his  appointment  to  enter  into  an  engagement,  or 
series  of  engagements,  on  behalf  of  his  principal,  and  while  the  ap- 
pointment is  in  force  he  fraud ulentl_y  makes  one  in  his  own  or  a  stran- 
ger's business,  but  in  the  form  contemplated  by  the  power,  and  which 
he  asserts  to  be  in  the  business  of  his  empWer  bj'  using  his  name  in 
the  contract,  can  the  dealer  rel}'  upon  that  assertion,  or  is  he  bound  to 
inquire  and  to  ascertain  at  his  peril  whether  the  transaction  is  not  only 


SECT,  IV.]         NEW    YORK,    ETC.    KAILKOAD    CO.    V.    SCHUYLER.  403 

in  appearance  but  in  fact  within  the  authority?  Acconliiig  to  the 
decision  of  the  Supreme  Court  of  this  State,  in  the  case  of  The  North 
River  Bank  v.  Aymar  (3  Hill,  'lij2),  he  can."  The  judge  then  pro- 
ceeds to  show  that  the  case  cited  had  been  reversed  by  the  Court  of 
Errors  ;  and  then  to  discuss  the  question  with  his  own  clearness  and 
vigor,  reaching  a  conclusion  which  he  expresses  in  these  words  :  "  The 
appearance  of  the  power  is  one  thing,  and  for  that  the  principal  is 
responsible.  The  appearance  of  the  act  is  another,  and  for  that,  if 
false,  J  tiiiuk  the  remedy  is  against  the  agent  only.  The  fundamental 
proposition,  1  repeat,  is,  that  one  man  can  be  bound  only  by  the 
authorized  act  of  another.  He  cannot  be  charged  because  another 
holds  a  commission  from  him  and  falsely  asserts  that  his  acts  are 
within  it. 

The  counter  proposition  was  again  stated  by  Selden,  J.,  in  The 
Farmers'  &  Mechanics'  Bank  v.  The  Butchers'  &  Drovers'  Bank,  in 
this  form  :  "  It  is,  I  think,  a  sound  rule  that  when  a  party  dealing 
with  an  agent  has  ascertained  that  the  act  of  the  agent  corresponds  in 
every  particular  in  regard  to  which  such  part}'  has  or  is  presumed  to 
have  any  knowledge  with  the  terras  of  the  power,  he  ma}-  take  the 
representation  of  the  agent  as  to  any  extrinsic  fact  which  rests  peculi- 
arly within  the  knowledge  of  the  agent,  and  which  cannot  be  ascer- 
tained b}-  a  comparison  of  the  power  with  the  acts  done  under  it. 

Manifestly,  here  is  an  "irrepressible  conflict"  between  these  propo- 
sitions, and  we  are  called  upon  to  determine  which  expresses  the 
settled  law  of  this  State.  I  think  the  problem  is  solved  whenever  the 
question  whether  the  decision  of  the  Supreme  Court  in  The  North 
River  Bank  v.  Aymar  (3  Hill  2G2),  is  authoritative  as  law,  is  answered  ; 
and  for  this,  I  have  the  emphatic  assent  of  Comstock,  J.,  as  above 
quoted.  That  case  stands  altogether  upon  the  doctrine  of  agenc}'. 
The  bank  held  the  power  of  attorney  under  which  the  agent  acted. 
The  paper,  on  its  face,  notified  the  bank  that  it  was  made  by  the  agent. 
The  power,  by  express  words,  limited  the  authority  to  notes  made  in 
the  business  of  the  principal.  The  character  of  the  paper  was,  there- 
fore, of  no  moment  on  this  point,  for  its  negotiability  could  not  shut 
out  a  question  which  arose  on  the  face  of  the  instruments.  (See  per 
Selden,  J.,  in  Griswold  v.  Haven,  25  N.  Y.  601,  and  per  Comstock, 
16  N.  Y.  153,  154,  155.)  The  paper,  in  fact,  was  not  made  in  the 
business  of  the  principal.  The  qnestion  was,  where  the  peril  of  that 
fact  rested  ;  and  its  solution  altogether  depended  upon  the  question, 
was  the  bank  "  bound  to  inquire  and  to  ascertain  at  its  peril  whether 
the  transaction  was  not  only  in  appearance  but  in  fact,  within  the 
authority  ? "  The  court  appreciated  the  point,  and  therefore  discussed 
and  decided  the  question  distinctive!}*,  on  the  law  of  principal  and 
agent. 

The  further  history  of  that  case  is  shown  by  Judge  Comstock,  in  his 
opinion  in  The  IMechanics'  Bank  case  (3  Kern.  633),  and  more  fully  in 
his  dissenting  opinion  in  The  Butchers'  and  Drovers'  Bank  case  (16 


404  NEW    YORK,    ETC.    RAILROAD    CO.    V.    SCHUYLER.         [cUAP.  IL 

N.  Y.  153,  154).  As  The  Mechanics'  Bank  case  left  The  North  River 
Bank  case,  the  latter  would  be  tieeiiied  not  law.  But  the  same  question 
arose  in  The  Farmers'  and  INIechanics'  Bank  v.  The  Butchers'  and 
Drovers'  Bank,  and  it  became  essential  to  determine  whether  the  re- 
versal b}'  the  Court  of  Errors  of  The  North  River  Bank  case  had 
settled  the  law  adversely-  to  the  decision  of  the  Supreme  Court  Judge 
Comstock  earnestl}'  insisted  that  it  had  (16  N.  Y.  154;,  but  in  this  he 
stood  alone.  Selden,  J.  (at  page  138),  assigned  reasons  for  holding 
the  question  still  open  for  examination,  and  after  a  very  full  examina- 
tion declared  that  the  case  was  properlj'  decided  by  the  Supreme  Court. 
Denio,  Ch.  J.,  and  Brown,  J.,  delivered  opinions,  both  agreeing  with 
Selden,  J.,  in  approving  the  decision  of  the  Supreme  Court.  "1  am 
clearl}-  of  opinion,"  said  Denio,  Ch.  J.,  "that  the  case  of  The  North 
River  Bank  i\  A3-mar,  was  correctl}'  adjudged  in  the  Supreme  Court. 
If  the  Court  of  Errors  laid  down  a  different  rule  in  reversing  that 
judgment,  the}-  ran  counter,  as  I  think  1  have  shown,  to  a  strong 
course  of  adjudication  in  that  court  and  in  the  Supreme  Court,  and 
overturned  a  legal  position  which  was  then  well  established  in  this 
State,  and  has  since  been  repeatedly  acted  upon."  In  Griswold  v. 
Haven  (25  N.  Y.  595),  the  same  question  arose  ;  and  upon  the  precise 
point  now  under  consideration  —  whether  the  decision  of  the  Supreme 
Court  in  The  North  River  Bank  v.  Aymar,  is  sound  law  —  I  understand 
there  was  no  dissent  from  the  opinion  of  H.  R.  Selden,  J.,  which  held 
it  to  be  so.  In  The  Exchange  Bank  v.  Monteath  (26  N.  Y.  505),  the 
question  of  its  authoritv  again  ver}'  sharply  arose.  When  that  case 
was  first  at  the  bar  of  the  General  Term,  that  court  followed  The 
North  River  Bank  v.  Aymar,  as  reported  in  3  Hill,  regarding  it  as  a 
decisive  authority-.  After  a  new  trial,  the  case  came  again  to  the  Gen- 
eral Term,  but  in  the  mean  time  the  opinion  of  Comstock,  J.,  in  The 
Mechanics'  Bank  case,  had  been  published.  The  court  regarded  that 
as  establishing  a  different  doctrine,  and  as  showing  also  that  The  North 
River  Bank  case  had  been  overruled  by  the  Court  of  P^rrors.  It,  there- 
fore, reluctantly  followed  what  it  regarded  as  the  later  authority.  But 
this  court  reversed  the  General  Term,  and  declared  that  the  doctrine 
of  the  case  of  The  North  River  Bank  v,  Aymar,  must  now  be  regarded 
as  established  on  an  impregnable  basis.  "  It  is,"  said  Davies,  J., 
*'  well  sustained  by  authority,  sound  reasoning  and  well  established 
principles,  and  it  should  be  firmly  adhered  to  b}-  the  courts."  If  ever 
a  case,  discrowned  by  reversal,  was  lifted  to  its  feet  and  restored  to 
authority  by  adjudication.  The  North  River  Bank  v.  Aymar  has  been  ; 
and  its  vindication  is  all  the  more  signal  because  of  the  ability 
with  which  its  chief  antagonist  has  conducted  the  remarkable  warfare 
against  it. 

We  have  already  seen  what  principle  was  involved  in  that  ease,  and 
it  is  impossible  to  escape  the  conclusion  that  the  law  of  this  State,  as 
settled  b}'  adjudication  at  this  day,  is,  as  put  by  H.  R.  Selden,  J.,  in 
Griswold  v.  Haven,  "That  where  the  authority  of  an  agent  depends 


SECT.  lY.]         NEW    YOKK,    ETC.    RAILROAD    CO.    V.    SCHUYLER.  405 

upon  some  fact  outside  the  terms  of  his  power,  and  which,  from  its 
nature,  rests  particularly  within  his  knowledge,  the  principal  is  bound 
by  the  representation  of  the  agent,  although  false,  as  to  the  existence 
of  such  fact."  The  contrar}'  rule,  though  asserted  with  confidence  and 
vindicated  with  great  force  in  the  case  of  The  Mechanics'  Bank,  was 
not  necessarily  adopted  b}-  the  court,  and  that  case  does  not  so  deter- 
mine. It  ma}'  with  confidence  be  asserted  that  all  the  cases  in  this 
State,  both  before  and  since,  lay  down  a  diflferent  rule  from  that  sup- 
posed in  The  Mechanics'  Bank  case,  to  have  been  established  by  the 
Court  of  P^rrors  ;  and  so  do  the  elementary'  writers  upon  whom  we  are 
accustomed  to  rely.  (Stor}'  on  Agency,  452  ;  Pale}'  on  Agency,  by 
Lloyd,  294,  301,  307;  Bacon  Abr.,  Tit.  Master  and  S.,  K.  ;  2  Kent 
Com.  620,  notes,  1  Blk.  Com.  432.)  It  were  long,  b}-  quotation,  to 
show  that  the  cases  just  noticed  necessaril}'  rest  on  this  doctrine.  A 
short  allusion  to  their  facts  must  suffice.  The  condition  of  the  author- 
ity in  The  North  River  Bank  v.  A3'mar,  was  that  the  paper  should  be 
made  in  the  business  of  the  principal.  In  The  Butchers'  and  Drovers' 
Bank  case,  that  the  drawee  should  have  funds  in  deposit  enough  to  pay 
the  check.  In  Griswold  u.  Haven,  that  the  grain  for  which  the  receipt 
was  given  should  actually'  have  been  received.  In  Exchange  Bank  v. 
Monteath  (so  far  as  it  rested  on  a  question  of  agency),  that  the  drafts 
should  be  for  the  use  and  benefit  of  the  defendant's  line  of  boats.  In 
each  of  these  cases,  the  extrinsic  fact  which  constituted  the  condition 
of  the  authority'  was  peculiarly  within  the  agent's  knowledge,  and  was 
necessaril}'  represented  to  exist  by  the  execution  of  the  agent's  powers. 
It  might  or  it  might  not  be  discovered  by  inquiry.  So  in  this  case,  in 
the  narrow  view  in  which  we  are  now  considering  it,  the  condition  upon 
which  the  agent  could  issue  the  certificate  was,  a  transfer  in  the  books 
and  the  surrender  of  a  previous  certificate,  if  any  had  before  been 
issued.  These  facts  are  wholly  extrinsic  and  peculiai'ly  within  the 
know'ledge  of  the  agent,  as  part  of  the  special  duties  to  be  attended  to 
by  him,  and  were  represented  by  him  to  exist  by  the  certificate  itself. 
I  can  see  no  shade  of  difllerence  between  the  question  in  this  case  and 
in  those  cited,  and  which  seems  to  me  to  settle  the  law.  The  rule 
which  governs  this  class  of  cases,  in  my  judgment,  rests  upon  a  sound 
principle.  As  was  said  by  Selden,  J.,  in  Griswold  v.  Haven,  "The 
mode  in  which  the  liability  is  enforced  in  all  these  cases,  is  by  estoppel 
in  pais.  The  agent  or  partner  has  in  each  case  made  a  representation 
as  to  a  fact  essential  to  his  power,  upon  the  faith  of  which  the  other 
party  has  acted,  and  the  principal  or  firm  is  precluded  from  contro- 
verting the  fact  so  represented."  It  goes  back  to  the  celebrated  aphor- 
ism of  Lord  Holt,  in  Hern  v.  Nichols  (1  Salk.  289),  "For  seeing 
somebody  must  be  a  loser  by  this  deceit,  it  is  more  reason  that  he  that 
employs  and  puts  a  trust  and  confidence  in  the  deceiver,  should  be  a 
loser  than  a  stranger,"  or  as  more  tersely  expressed  by  Ashurst,  J., 
in  Lickbarrow  v.  Mason  (2  T.  R.  70),  "  Whenever  one  of  two  innocent 
parties  must  suflTer  by  the  acts  of  a  third,  he  who  has  enabled  such 


406  NEW    YORK,    ETC.    RAILROAD   CO.    V.    SCHUYLER.  fcHAP.  IL 

third  person  to  occasion  the  loss  must  sustiun  it."  (Story  on  Part. 
§  108,  and  authorities  there  cited.)  In  truth,  the  power  conferred  in 
these  cases,  is  of  such  a  nature  that  the  agent  cannot  do  an  act  appear- 
ing to  be  within  its  scope  and  authority,  without,  as  a  part  of  the  act 
itself,  representing  expressly  or  by  necessary  implication,  that  the  con- 
dition exists  upon  which  he  has  the  right  to  act.  Of  necessity'  the 
principal  knows  this  fact  when  he  confers  the  power.  He  knows  that 
the  person  he  authorizes  to  act  for  him,  on  condition  of  an  extrinsic 
fact,  which  in  its  nature  must  be  peculiarly  within  the  knowledge  of 
that  person,  cannot  execute  the  power  without  as  res  gestae  making  the 
representation  that  the  fact  exists.  With  this  knowledge  he  trusts  him 
to  do  the  act,  and  consequent!}'  to  make  the  representation  which, 
if  true,  is  of  course  binding  on  the  principal.  But  the  doctrine  claimed 
is  that  he  reserves  the  right  to  repudiate  the  act  if  the  representation 
be  false.  So  he  does  as  between  himself  and  the  agent,  but  not  as  to 
an  innocent  third  part}^  who  is  deceived  b}'  it.  The  latter  may  answer, 
j-ou  intrusted  3'our  agent  with  means  elfectually  to  deceive  me  by 
doing  an  act  which  in  all  respects  compared  with  the  authority  you 
gave,  and  which  act  represented  that  an  extrinsic  fact  known  to  your 
agent  or  3'ourself,  but  unknown  to  me,  existed,  and  3'ou  have  thus 
enabled  your  agent,  by  falsehood,  to  deceive  me,  and  must  bear  the 
consequences.  The  very  power  ^'ou  gave,  since  it  could  not  be  exe- 
cuted without  a  representation,  has  led  me  into  this  position,  and 
therefore  you  are  estopped  in  justice  to  deny  his  authority'  in  this  case. 
By  this  I  do  not  mean  to  argue  that  the  principal  authorizes  the  false 
representation.  He  onl}'  in  fact  authorizes  tlie  act  which  involves  a 
representation,  which,  from  his  confidence  in  the  agent,  he  assumes 
will  be  true  ;  but  it  may  be  false,  and  the  risk  that  it  may  he  takes 
because  he  gives  the  confidence  and  credit  which  enables  its  falsity 
to  prove  injurious  to  an  innocent  part}'.  I  have  alreadj'  sliown  how 
this  principle  in  many  cases  sustains  liabilit}'  after  all  actual  authorit}' 
has  been  withdrawn,  as  between  the  principal  and  parties  who  have  a 
right  to  infer  that  the  authority  continues. 

The  contrary  doctrine  would  be  singularly'  inconvenient,  if  not  ab- 
surd, in  practice.  For  instance,  under  a  general  power  to  draw  bills, 
which  means,  of  course,  only  in  the  business  of  the  principal,  no  party 
could  safel}'  take  a  bill  drawn  by  the  agent  without  pursuing  the  in- 
quiry whether  it  was  drawn  in  such  business  to  extremes.  If  the  peril 
is  on  the  part}'  to  whom  the  bill  is  given,  nothing  shoi't  of  personal 
application  to  the  principal  himself  can  relieve  it,  for  nowhere  short  of 
that  is  absolute  certaint}'.  Ever}'  intermediate  appearance  or  represen- 
tation may  be  false  or  deceptive,  and  the  rigid  rule  of  actual  authority 
will  be  satisfied  with  nothing  less  than  absolute  verity.  So,  then,  the 
general  power  carries  no  safety  whatever,  since  each  bill  made  under  it 
must  be  verified  as  to  extrinsic  facts  by  resort  for  perfect  security  to 
the  principal  himself. 

Or  to  bring  the  illustration  nearer  to  this  case :  It  is  claimed  that 


BECT.  IV.]         NEW    YORK,    ETC.    KAILKOAD   CO.   V.   SCHUYLER.  407 

every  receiver  of  a  stock  certificate,  executed  by  an  agent,  luiist  verify, 
at  liis  peril,  the  extrinsic  facts  tliat  a  transfer  of  tlie  stock  has  been 
made  and  the  former  certificate  surrendered.  But  how?  If  he  go  to 
the  board  of  directors  they  can  only  refer  him  to  the  transfer  agent  oi 
the  books  kept  by  him,  for  these  are  alone  their  sources  of  information, 
If  he  resort  to  the  books  they  are  at  best  but  other  representations 
of  the  agent  which,  if  they  in  form  show  a  transfer,  may  still  be  de- 
ceptive, and  nothing  but  a  transfer  of  actual  stock  will  answer  the 
condition.  He  must  therefore  trace  the  lineage  of  the  stock  repre- 
sented B^  the  certificate  to  some  point  behind  which  no  "  strain  upon 
the  pedigree  "  will  enable  the  corporation  to  bastardize  the  issue.  Such 
a  rule  would  be  vastly  detrimental  to  the  business  interests,  both  of 
corporations  and  of  the  public. 

It  would  be  far  better  to  establish  a  rule  that  no  man  shall  take  an 
instrument  made  by  an  agent  without  first  having  the  principal's  cer- 
tificate that  it  is  genuine  and  authorized  ;  and  even  this  would  be 
impracticable  in  corporations,  for  every  new  certificate,  being  another 
act  of  an  agent,  would  only  open  a  new  circuit  of  inquiry.  But  such 
is  neither  the  policy  nor  good  sense  of  the  law. 

It  is  a  mistake  to  suppose  that  the  conventional  rule  of  commercial 
negotiability  has  anything  to  do  with  this  question,  except  in  cases 
where  the  paper  carries  no  notice  on  its  face  that  it  is  made  by  some- 
body assuming  to  be  an  agent.  That  rule  stands  upon  an  arbitrary  doc- 
trine of  the  law  merchant  and  not  at  all  upon  any  principle  of  estoppel. 
It  extends  only  to  instruments  which  usage  or  legislation  has  brought 
within  it ;  and  its  substance  is,  that  by  force  of  the  arbitraiy  rule  the 
possessor  of  such  negotiable  instrument  has  power  to  give  by  delivery 
to  a  bona  fide  purchaser  for  value,  a  good  title  notwithstanding  any 
defectiveness  in  his  own.  Hence,  under  it  a  finder  or  a  thief  may  con- 
fer such  title  with  none  in  himself,  not  because  the  loser  is  estopped 
b}'  his  misfortune  from  asserting  his  rights,  but  because  from  real  or 
supposed  commercial  necessities,  "^  ita  lex  est  scn'pta."  But  it  is  a 
fixed  requisite  of  the  rule  that  the  bu^er  shall  be  for  value  without 
notice,  and  therefore  nothing  that  gives  notice  on  its  face  is,  in  that 
particular,  within  the  rule.  So  an  instrument  that  shows  on  its  face 
that  it  is  made  b}-  one  man  for  another,  at  once  warns  the  taker  to 
inquire  if  the  assumed  agent  be  authorized,  and  that  question  becomes 
one  independent  of  the  arbitrary  rule  of  the  law  merchant  and  depend- 
ent on  the  doctrines  that  govern  the  law  of  principal  and  agent.  (Att- 
wood  V.  Munnings,  7  B.'  &  C.  278  ;  Fearn  v.  Felica,  8  Scott,  N.  C. 
241.) 

I  concur,  therefore,  with  Judge  Selden,  when  he  asserts  that  in  no 
respect,  except  as  it  touched  the  question  of  privitj^  of  contract,  was 
the  negotiability  of  the  paper  of  any  importance  in  the  case  of  The 
North  River  Bank  v.  Aymar  (25  N.  Y.  602).  In  that  case  it  appeared 
on  the  face  of  the  paper  that  it  purported  to  be  made  by  an  agent.  A 
different  rule  as  to  the  effect  of  negotiability  may  well  obtain  where  the 


408  NEW   YORK,   ETC.    RAILROAD    CO.    V.   SCHUYLER.         [CHAP.  IL 

paper  is  negotiable  within  tlie  law  merchant,  and  bears  on  its  face  no 
notice  whatever  that  it  is  made  by  some  party  other  than  the  one  it 
pui-ports  to  charge,  as  where  it  is  made  in  a  firm  name,  or  in  the  form 
and  by  the  officers,  through  and  by  which  a  corporation  can  by  law 
issue  its  authorized  evidences  of  debt. 

We  have  already  seen  how  far  privity  is  essential  in  actions  of  tort. 
(Redfield  on  Railways,  61  and  note ;  Gerhard  v.  Bates,  20  Eng.  L.  & 
Eq.  129,  &c.) 

I  shall  not  inquire  how  far  the  English  cases,  and  especiall;^'  the  lead- 
ing case  of  Grant  v.  Norway  (10  C.  B.  665),  so  much  relied  upon,  may 
be  in  conflict  with  the  law  of  this  State.  Both  the  Judges  Selden 
have  sought  to  show  that  Grant  v.  Norway  is  distinguishable  from  the 
cases  under  their  consideration,  and  I  will  only  add  that  if  they  did  not 
succeed  in  pointing  out  the  distinction,  and  the  case  really  stands 
in  conflict,  so  much  the  worse  for  that  case. 

We  may  come  back,  therefore,  to  the  solid  ground  of  The  North 
River  Bank  v.  Aymar,  regarding  it  only  as  shaken  down  to  greater 
firmness  by  the  severe  ordeal  of  The  Farmers'  and  Mechanics'  Bank 
case,  and  with  confidence  declare  the  true  doctrine  of  this  branch  of  the 
law  of  agency  to  be,  that  where  the  principal  has  clothed  his  agent 
with  power  to  do  an  act  resting  upon  the  existence  of  some  extrinsic 
fact  necessarily  and  peculiarly  within  the  knowledge  of  the  agent,  and 
of  the  existence  of  which  the  act  of  executing  the  power  is  itself  a  rep- 
resentation, a  third  person  dealing  with  such  agent  in  entire  good  faith 
pursuant  to  the  apparent  power,  may  rely  upon  the  representation,  and 
the  principal  is  estopped  from  denying  its  truth  to  his  prejudice.  In 
Griswold  v.  Haven,  this  rule  was  distinctly  settled.  The  dissenting 
opinion  touched  only  the  right  to  maintain  the  form  of  action  brought 
in  that  case,  but  a  majority  of  the  court  held  that  the  representation  of 
the  agent  not  only  charged  the  principals,  but  estopped  them  from 
den3'ing  the  actual  possession  of  the  wheat  asserted  to  be  in  store,  so 
as  to  defeat  an  action  of  trover  or  replevin  to  recover  the  property.  In 
this  view  I  see  no  ground  upon  which  the  plaintiffs  can,  in  this  case,  be 
permitted  to  deny  that  Schuyler  was  acting  witliin  the  scope  of  his 
authority  in  issuing  the  false  certificates  ;  and  the}'  are  therefore  to  be 
treated  as  though  issued  by  the  board  of  directors.  Considering  them 
of  that  character,  the  question  of  estoppel,  as  it  arises  upon  their  face, 
that  is,  whether  the  corporation  is  estopped  from  saying  that  they  were 
not  genuine  representatives  or  muniments  of  title  to  stock,  was  rightly 
disposed  of  by  the  opinion  of  Comstock,  J.,  in  The  Mechanics'  Bank 
case.  And  it  was  in  that  view,  that  is,  regarding  them  as  instruments 
capable,  upon  some  notion  of  estoppel,  of  being  specifically  enforced, 
that  he  alluded  to  the  supposed  want  of  privity  in  the  estoppel  itself 
between  the  holder  in  that  case  and  the  corporation  ;  but  he  quite  dis- 
tinctly declined  to  pass  upon  the  question  of  the  liability  of  the  cor- 
poration if  the  certificate  was  to  be  treated  as  the  act  of  the  board. 
But  the  liability  of  the  corporation  for  a  wrongful  injury  growing  out 


SECT.  IV.]         NEW    YOEK,    ETC.    UAILROAD    CO.    V.    SCHUYLER.  409 

of  an  act  of  the  directors  in  excess  of  tlie  chartered  powers,  was  after- 
wards vindicated  and  settled  in  Bissell  v.  The  Michigan  Southern  & 
Northern  Indiana  R.  R.  Co.  (22  N.  Y.  258),  and  it  stands  well  upon 
the  grounds  of  cither  of  the  learned  opinions  in  that  case. 

It  was  established  by  the  Court  of  Chancery  in  England  a  centur}' 
ago,  in  Ashby  v.  Blackwell  (2  Eden,  299).  .  .  . 

I  shall  proceed,  as  briefly  as  possible,  to  consider  the  cases  of  de- 
fendants, who  are  parties  to  this  appeal,  in  the  light  of  the  different 
facts  found  in  them  ;  and  for  that  purpose  shall  classify  the  defendants 
so  far  as  practicable. 

First.  There  is  a  class  of  defendants  who  were  purchasers  of  stocks 
in  good  faith  and  for  value,  of  persons  to  whose  credit  such  stock  stood 
on  the  books  of  the  company  at  the  transfer  office  at  the  time  of  such 
purchase,  and  who  held  certificates  in  due  form  therefor.  On  such 
purchases,  the  outstanding  certificates  were  surrendered,  transfers 
made  on  the  books  in  due  form,  and  new  certificates  issued  to  the  pur- 
chaser, who  thereupon  paid  the  purchase  price  to  his  vendor.  These 
certificates  are  adjudged  spurious  because  their  origin  is  found  to  have 
been,  more  or  less  remotely,  in  over-issues  hy  Robert  Schuyler  to  his 
firm. 

Second.  Another  class  are  defendants  who  made  purchases  of  par- 
ties who  had  credit  on  the  books  of  the  company  for  the  stock  sold, 
but  no  certificates,  and  who,  on  the  sale,  transferred  the  stock  on  the 
books  in  due  form  to  the  purchasers  —  who,  in  some  instances,  took 
certificates  and  in  others  not.  In  some  cases  in  this  class,  it  is  proved 
that  the  money  for  the  stock  was  not  paid  till  after  inquiry  at  the  office 
showed  that  the  transfer  had,  in  fact,  been  made. 

Third,  Another  class  is  of  parties  who  loaned  money  upon  certifi- 
cates held  by  the  borrowers,  to  whose  credit  the  stock  stood  on  the 
books  of  the  company,  and  who  at  the  time  of  making  such  loan  or 
subsequenth',  surrendered  the  certificate  and  transferred  the  stock  on 
the  books,  and  took  out  new  certificates  in  due  form. 

•The  stock  held  by  these  two  classes  has  been  also  adjudged  spuri- 
ous, because  it  originated  in  some  like  over-issue  of  the  transfer  agent. 

It  will  be  seen  that  in  these  cases  where  new  certificates  have  been 
issued  by  the  transfer  agent,  the  letter  of  his  authority  in  its  most 
limited  sense  has  been  pursued.  The  extrinsic  facts  upon  which  the 
power  of  the  agent  depended,  apparently  existed.  Stock  stood  on 
the  books  to  the  credit  of  the  party  making  the  transfer.  The  transfer 
was  made  in  due  form.  The  outstanding  certificate  was  surrendered 
and  cancelled,  and  thereupon  the  new  one  issued.  To  all  appearance 
the  act  was  within  the  real  and  apparent  scope  of  the  authority,  and 
ever}'  condition  of  the  power  fully  complied  with.  But  a  judicial  inves- 
tigation has  shown  that  this  apparent  stock  credited  on  the  books,  was 
not  real.  That  at  some  remote  period,  it  had  its  origin  in  a  fraudulent 
over-issue.  The  question  is,  does  the  peril  of  that  fact  rest  on  the 
buver?     I  think  it  does  not;  but  lam  constrained  to  admit,  that  if 


410  NEW    YORK,   ETC.    RAILROAD    CO.    V.    SCHUYLER.         [CHAP.  IL 

the  position  of  the  appellants'  counsel  be  sound,  I  do  not  see  why  it 
must  not.  Tlie  question  is  only  carried  back  a  step  farther ;  that  is,  to 
the  right  of  a  dealer  to  buy  stock,  relying  on  the  books  of  the  company 
as  evidence  of  the  ownership  of  his  vendor.  But  the  books  are  them- 
selves onh'  representations  made  by  agents,  and  by  no  means  conclusive 
in  ever}'  sense.  The  credit  is  a  deceptive  one,  because  the  stock  has 
no  real  existence,  and  if  the  condition  of  the  power  be  that  there  must 
be  an  actual  transfer  of  stock,  an  unreal  transfer,  however  complete  its 
resemblance  to  reality,  does  not  answer  the  condition.  No  matter  to 
what  disastrous  consequences  the  rule  may  lead,  it  cannot  be  satisfied 
without  holding  that  the  peril  that  all  appearances  of  genuineness  shall 
be  founded  in  absolute  fact,  constantly  rests  upon  the  dealer. 

The  same  tiling  is  true  of  tlie  transfers  upon  the  surrender  of  certifi- 
cates, where  no  certificate  had  issued.  Unless  we  are  to  hold  the 
compan}-  to  the  dut}-  of  keeping  correct  books,  so  that  those  who  refer 
to  and  rely  upon  them  shall  be  protected,  there  is  no  remedy.  The 
corporation  ma}'  mislead  the  community  until  thousands  are  ruined, 
and  be  itself  entirely  protected  by  being  able  to  say,  our  agents  had  no 
authority  to  give  credits  for  stock  where  none  existed.  The  evidence 
to  a  corporation  of  its  stockholders  is  its  stock  ledger,  or  the  books 
kept  for  the  express  purpose  of  determining  its  stockholders.  (Gray  v. 
Portland,  3  Mass.  385,  per  Sewall,  J.) 

Dealers  are  entitled  to  rel}'  upon  that  evidence.  As  was  said  by 
Best,  Ch.  J.,  in  Davis  v.  The  Bank  of  England  (3  Bingham,  393),  "If 
this  be  not  law,  who  will  purchase  stock,  or  who  can  be  certain  that  the 
stock  he  holds  belongs  to  him  ?  It  has  ever  been  an  object  of  the 
legislature  to  give  facility  to  the  transfer  of  shares  in  the  public  funds. 
This  facilit}'  of  transfer  is  one  of  the  advantages  belonging  to  this  spe- 
cies of  property,  and  this  advantage  would  be  entirel}'  destroyed  if  a 
purchaser  should  be  required  to  look  to  the  regularity  of  the  transfer, 
to  all  the  various  persons  through  whom  such  stock  had  passed.  In- 
deed, from  the  manner  in  which  stock  passes  from  man  to  man,  from 
the  union  of  stocks  bought  of  different  persons  under  the  same  name, 
and  the  impossibility  of  distinguishing  what  was  regularly  transferred, 
from  what  was  not,  it  is  impossible  to  trace  the  title  of  stock  as  you 
can  that  of  an  estate.  You  cannot  look  further,  nor  is  it  the  practice 
even  to  attempt  to  look  further  than  the  bank  books  for  the  title  of  the 
person  who  proposes  to  transfer  to  you." 

I  take  it  to  be  sound  law,  that  if  A.,  who  is  about  to  sell  propert}-  to 
B.,  and  take  his  check  on  a  bank,  applies  at  the  counter  of  the  bank 
to  the  proper  officer,  who  informs  him  that  B.  has  the  funds  in  deposit, 
and  his  check  will  be  good,  the  bank  will  not  be  permitted  to  deny  the 
truth  of  the  assertion  after  A.  has  acted  upon  it,  on  the  ground  that  its 
oflScer  had  no  authority  to  keep  any  but  correct  books.  But  these  par- 
ties stand  upon  a  still  better  footing,  for  tliey  have  relied  not  merely 
upon  a  certificate  issued  by  the  agent,  but  upon  the  records  of  title  to 
stock  kept  b}-  the  company,  which  were  the  only  other  existing  sources 


SECT.  IV.]         NEW   YORK,    ETC.    RAILROAD    CO.    V.    SCHUYLER.  411 

of  information.  They  have  there  found  the  stock  they  proposed  to 
purchase  credited  to  the  party  offering  it  for  sale,  in  the  stock  ledger  of 
the  corporation,  wliich  is  the  best  evidence  of  the  existence  of  all 
genuine  stock  transferable  at  this  office.  Is  it  to  be  tolerated  that  the 
responsibility  for  the  correctness  of  these  books  rests  altogether  upon 
dealers  who  have  no  control  over  them  ? 

The  defendants  who  have  been  led  into  loaning  their  money  upon 
certificates  and  transfers,  held  and  made  by  parties  who  had  like 
credits  on  the  books,  and  who  apparently  complied  with  every  con- 
dition, stand  on  the  same  footing  with  those  just  noticed.  Public 
policy  and  the  true  interests  of  all  parties  concerned,  as  well  as  plain 
principles  of  equity  and  justice,  require  that  the  corporation  make  good 
the  losses  the}'  have  sustained. 

There  is  still  another  class  whose  claims  arise  upon  other  facts,  and 
rest  on  different  principles.  It  is  composed  of  those  defendants  who 
have  received  certificates  representing  actual  and  genuine  stock  of  the 
company,  but  whose  certificates  were  rendered  valueless  b}-  a  subse- 
quent transfer  to  bona  fide  purchasers  of  the  same  stock,  by  the  part}' 
to  whose  credit  it  stood  on  the  books.^  .  .  .  It  is  claimed  ,  .  .  that  the 
transfer  was  made  or  permitted  b}'  an  agent  of  the  compan}',  who  acted 
in  excess  of  his  powers.  Clearly  it  was  the  duty  of  the  transfer  agent 
to  have  required  the  surrender  and  cancellation  of  the  outstanding  cer- 
tificates. That  was  one  of  the  ver}-  duties  he  was  put  there  to  perform. 
...  It  is  the  ver}'  ground  of  the  company's  liability',  that  its  agent 
failed  to  do  the  dut}-  enjoined  upon  him.  The  parties  were  dealing  all 
the  while  in  the  actual  and  legitimate  stock  of  the  compan}-,  and  the 
agent  was  called  upon  to  do  an  act  within  the  exact  scope  of  his 
authority.  .  .  .  "-Vor  where  a  trust,"  says  Lord  Holt  (12  Mod.  472, 
490),  "  is  put  in  one  person,  and  another,  whose  interest  is  intrusted  to 
him,  is  damnified  by  the  neglect  of  such  as  that  person  employs  in  the 
discharge  of  that  trust,  he  shall  answer  for  it  to  the  party  damnified." 
Nor  does  it  matter  that  the  agent  fraudulently  neglected  his  duty  for 
his  own  private  gain  ;  for  then  arises  the  exact  case  for  the  application 
of  Lord  Holt's  rule,  that  when  one  of  two  innocent  persons  must  suffer 
from  the  fraud  or  misconduct  of  a  third,  he  who  has  reposed  a  trust  or 
confidence  in  the  fraudulent  agent  ought  to  bear  the  loss.  .  .  . 

Dexio,  C.  J.,  Wright,  Potter,  and  Brown,  JJ.,  concurred  with 
Davis,  J.  Judgment  affirmed? 

1  The  opinion  as  to  this  class  of  claims  has  been  abbreviated  by  omitting  passages 
pertaining  to  the  law  of  Corporations.  —  Ed. 

2  Other  over-issue  cases  are  :  Bridgeport  Bank  v.  N.  Y.  &  N.  H.  Railroad  Co.,  30 
Conn.  231  (1861);  Western  Maryland  Railroad  Co.  v.  Franklin  Bank,  60  Md.  36 
(18S2)  ;  Moores  v.  Citizens'  National  Bank,  111  U.  S.  1.56  (1884) ;  Shaw  v  Port  Philip 
Gold  Mining  Co.,  13  Q.  B.  D.  103  (1884);  Allen  v.  South  Boston  Railroad  Co.,  150 
Mass.  200  (1889);  Hill  v.  Jewett  Publishing  Co.,  154  Mass.  172  (1891).  — Ed. 


412  BARWICK   V.    ENGLISH    JOINT    STOCK    BANK.         [CHAP.  IL 


BARWICK  V.   ENGLISH   JOINT   STOCK  BANK. 

Exchequer  Chamber.    1867. 

[L.  R.  2  Ex.  259.] 

The  cause  ^  was  tried  before  Martin,  B.,  at  Westminster,  on  the 
15th  of  June,  1866  ;  and  on  the  evidence  given  for  the  plaintiff, 
the  substance  of  which  is  fully  stated  in  the  judgment  of  the  Court,  the 
learned  Baron  ruled  that  there  was  no  evidence  to  go  to  the  jury  in 
support  of  the  plaintiffs  case,  and  accordingly  directed  a  nonsuit,  but 
signed  a  bill  of  exceptions  setting  out  the  evidence. 

JBwtcn,  Q.  C.  (IIuddlesio7i,  Q.  C,  and  Griffits,  with  him),  for  the 
plaintiff. 

Jfellish,  Q.  C.  (  Watkin  Williams  with  him),  for  the  defendants.^ 

Sroxon,  Q.  C,  in  reply. 

The  judgment  of  the  Court  (Willes,  Blackburn,  Keating,  Mel- 
LOR,  Montague  Smith,  and  Lush,  JJ.)  was  delivered  by 

Willes,  J.  This  case,  in  which  the  court  took  time  to  consider 
their  judgment,  arose  on  a  bill  of  exceptions  to  the  ruling  of  m}-  Brother 
Martin  at  the  trial  that  there  was  no  evidence  to  go  to  the  jury. 

It  was  an  action  brought  for  an  alleged  fraud,  which  was  described 
in  the  pleadings  as  being  the  fraud  of  the  bank,  but  which  the  plain- 
tiff alleged  to  have  been  committed  b}'  the  manager  of  the  bank  in  the 
course  of  conducting  their  business.  At  the  trial,  two  witnesses  were 
called,  first,  Barwick,  the  plaintiff,  who  proved  that  he  had  been  in  the 
habit  of  supplying  oats  to  a  customer  of  the  bank  of  the  name  of 
Davis  ;  and  that  he  had  done  so  upon  a  guarantee  given  to  him  by  the 
bank,  through  their  manager,  the  effect  of  which  probably  was,  that  the 
drafts  of  the  plaintiff  upon  Davis  were  to  be  paid,  subject  to  the  debt 
of  the  bank.  What  were  the  precise  terms  of  the  guarantee  did  not 
appear,  but  it  seems  that  the  plaintiff  became  dissatisfied  with  it,  and 
refused  to  supply  more  oats  without  getting  a  more  satisfactorj'  one  ; 
that  he  applied  to  the  manager  of  the  bank,  and  that  after  some  conver- 
sation between  them,  a  guarantee  was  given,  which  was  in  this  form  : 

"  Dear  Sir,  —  Referring  to  our  conversation  of  this  morning,  I  beg 
to  repeat  that  if  30U  sell  to,  or  purchase  for,  J.  Davis  and  Son  not 
exceeding  1000  quarters  of  oats  for  the  use  of  their  contract,  I  will 
honour  the  cheque  of  Messrs.  J.  Davis  and  Son  in  your  favour  in  pa^'- 
ment  of  the  same,  on  receipt  of  the  money  from  the  commissariat  in 
payment  of  forage  supplied  for  the  present  month,  in  priorit3'  to  any 
other  payment,  except  to  this  bank  ;  and  provided,  as  I  explained  to 

^  The  statement  of  the  pleadings  has  been  omitted.  —  Ed. 

2  In  the  course  of  this  argument,  Willes,  J.,  said  :  "  I  should  be  sorry  to  have  it 
supposed  that  Cornfoot  v.  Fowke,  6  M.  &  W.  358,  turned  upon  anything  but  a  point 
of  pleading."  And  he  referred  to  Com.  Dig.,  Action  upon  the  Case  for  Deceit,  B.  — 
Ed. 


SECT.  IV.]  RARWICK    V.    ENGLISH    JOINT    STOCK    BANK.  413 

3'ou,  that  the}',  J.  Davis  and  Son,  are  able  to  continue  their  coutiacts, 
and  are  not  made  bankrupts. 

(Signed)  "  Don.  M.  Dewar,  Manager." 

The  plaintiff  stated  that  in  the  course  of  conversation  as  to  the 
guarantee,  the  manager  told  him  that  whatever  time  he  received  the 
government  cheque,  the  plaintiff  should  receive  the  monej'. 

Now,  that  being  the  state  of  things  upon  the  evidence  of  the  plain- 
tiff, it  is  obvious  that  there  was  a  case  on  which  the  jury  might 
conclude,  if  the}'  thought  proper,  that  the  guarantee  given  by  the 
manager  was  represented  by  him  to  be  a  guarantee  which  would 
probably,  or  might  probably,  be  paid,  and  that  the  plaintiff  took  the 
guarantee,  supposing  that  it  was  of  some  value,  and  that  the  cheque 
would  probably,  or  might  probably,  be  paid.  But  if  the  manager  at 
the  time,  from  his  knowledge  of  the  accounts,  knew  that  it  was 
improbable  in  a  verj'  high  degree  that  it  would  be  paid,  and  knew  and 
intended  that  it  should  not  be  paid,  and  kept  back  from  the  plaintiff 
the  fact  which  made  the  payment  of  it  improbable  to  the  extent  of 
being  as  a  matter  of  business  impossible,  the  jiny  might  well  have 
thought  (and  it  was  a  matter  within  their  province  to  decide  upon) 
that  he  had  been  guilt}'  of  a  fraud  upon  the  plaintiff. 

Now,  was  there  evidence  that  such  knowledge  was  in  the  mind  of  the 
manager?  The  plaintiff  had  no  knowledge  of  the  state  of  the  accounts, 
and  the  manager  made  no  communication  to  him  with  respect  to  it. 
But  the  evidence  of  Davis  was  given  for  the  purpose  of  supplying  that 
part  of  the  case  ;  and  he  stated  that,  immediateh'  before  the  guarantee 
had  been  given,  he  went  to  the  manager,  and  told  him  it  was  impossible 
for  him  to  go  on  unless  he  got  further  supplies,  and  that  the  govern- 
ment were  buying  in  against  him  ;  to  which  the  manager  replied,  that 
Davis  must  go  and  tr}'  his  friends ;  on  which  Davis  informed  the 
manager  that  the  plaintiff  would  go  no  further  unless  he  had  a  further 
guarantee.  Upon  that  the  manager  acted  ;  and  Davis  added,  "  I  owed 
the  bank  above  £12000."'  The  result  was  that  oats  were  supplied  b}' 
the  plaintiff  to  Davis  to  the  amount  of  £1227,  that  Davis  carried  out 
his  contract  with  the  government,  and  that  the  commissariat  paid  him 
the  sum  of  £2676,  which  was  paid  by  him  into  the  bank.  He  there- 
upon handed  a  cheque  to  the  [)laintiff,  who  presented  it  to  the  bank, 
and  without  further  explanation  the  cheque  was  refused. 

This  is  the  plain  state  of  the  facts  ;  and  it  was  contended  on  behalf 
of  the  bank  that,  inasmuch  as  the  guarantee  contains  a  stipulation 
that  the  plaintiff's  debt  should  be  paid  subsequent  to  the  debt  of  the 
bank,  which  was  to  have  priorit}'.  there  was  no  fraud.  We  are  unable 
to  adopt  that  conclusion.  I  speak  sparingly,  because  we  desire  not  to 
anticipate  the  judgment  which  the  constitutional  tribunal,  the  jurv,  ma}' 
pass.  But  they  might,  upon  these  facts,  justly  come  to  the  conclusion, 
that  the  manager  knew  and  intended  that  the  guarantee  should  be 
unavailing  ;  that  he  procured  for  his  employers,  the  bank,  the  govern- 


414  BAKWICK    V.    ENGLISH   JOINT   STOCK    BANK.  [CHAP.  II. 

ment  cheque,  by  keeping  back  from  the  plaintiff  the  state  of  Davis's 
account,  and  that  he  intended  to  do  so.  If  the  juiy  took  that  view  of 
the  facts,  they  would  conclude  that  there  was  such  a  fraud  in  the 
manager  as  the  plaintiff  complained  of. 

If  there  be  fraud  in  the  manager,  then  arises  the  question  whether 
it  was  such  a  fraud  as  the  bank,  his  employers,  would  be  answerable 
for.  Witli  respect  to  that,  we  conceive  we  are  in  no  respect  overruling 
the  opinions  of  my  Brothers  Martin  and  Bramwell  in  Udell  v.  Atherton 
7  H.  &  N.  172  ;  the  case  most  relied  upon  for  the  purpose  of  establish- 
ing the  proposition  tluit  the  principal  is  not  answerable  for  the  fraud  of 
his  agent.  Upon  looking  at  tliat  case,  it  seems  pretty  clear  that  the  divi- 
sion of  opinion  which  took  place  in  the  Court  of  Exchequer  arose,  not 
so  much  upon  the  question  whether  the  principal  is  answerable  for  the 
act  of  an  agent  in  the  course  of  his  business  —  a  question  which  was 
settled  as  earl}'  as  Lord  Holt's  time,  Hern  c.  Nichols,  1  Salk.  289  ;  but 
in  applying  that  principle  to  the  peculiar  facts  of  the  case ;  the  act 
which  was  relied  upon  there  as  constituting  a  liability  in  the  sellers 
having  been  an  act  adopted  b}-  them  under  peculiar  circumstances,  and 
the  author  of  that  act  not  being  their  general  agent  in  business,  as  the 
manager  of  a  bank  is.  But  with  respect  to  the  question,  whether  a 
principal  is  answerable  for  the  act  of  his  agent  in  the  course  of  his 
master's  business,  and  for  his  master's  benefit,  no  sensible  distinction 
can  be  drawn  between  the  case  of  fraud  and  the  case  of  an}'  other 
wrong.  The  general  rule  is,  that  the  master  is  answerable  for  ever}' 
such  wrong  of  tlie  servant  or  agent  as  is  committed  in  the  course  of  the 
service  and  for  the  master's  benefit,  though  no  express  command  or 
privity  of  the  master  be  proved.^  That  principle  is  acted  upon  every 
day  in  running  down  cases.  It  has  been  applied  also  to  direct  tres- 
pass to  goods,  as  in  the  case  of  holding  the  owners  of  ships  liable  for 
the  act  of  masters  abroad,  improperly  selling  the  cargo.^  It  has  been 
held  applicable  to  actions  of  false  imprisonment,  in  cases  where  officers 
of  railway  companies,  intrusted  with  the  execution  of  by-laws  relating 
to  imprisonment,  and  intending  to  act  in  the  course  of  their  duty, 
improperly  imprison  persons  who  are  supposed  to  come  within  the 
terms  of  the  by-laws.^  It  has  been  acted  upon  where  persons 
employed  by  the  owners  of  boats  to  navigate  them  and  to  take  fares, 
have  committed  an  infringement  of  a  ferry,  or  such  like  wrong.*  In  all 
these  cases  it  may  be  said,  as  it  was  said  here,  that  the  master  has  not 
authorized  the  act.  It  is  true,  be  has  not  authorized  the  particular  act, 
but  he  has  put  the  agent  in  his  place  to  do  that  class  of  acts,  and  he 
must  be  answerable  for  the  manner  in  which  the  agent  has  conducted 

^  See  Laugher  v.  Pointer,  5  B.  &  C.  547,  at  p.  554.  —  Rep. 

2  Ewbank  v.  Nutting,  7  C.  B.  797.  —  Rep. 

3  Goff  V.  Great  Northern  Railway  Company,  3  E.  &  E.  672 ;  30  L.  J.  (Q.  B.)  148, 
explaining  (at  3  E.  &  E.  p.  683)  Roe  v.  Birkenhead  Railway  Company,  7  Ex.  36 ;  and 
Bee  Barry  v.  Midland  Railway  Company,  Ir.  L.  Rep.  1  C.  L.  130.  —  Rep. 

*  Huzzey  v.  Field,  2  C.  M.  &  R.  432,  at  p.-440.  —  Rep. 


SKCT.  IV.]  HATHAWAY    V.    JOHXSOX.  415 

himself  in  doing  the  business  which  it  was  the  act  of  his  master  to 
place  him  in. 

The  onh'  other  point  which  was  made,  and  it  had  at  first  a  somewhat 
plausible  aspect,  was  this:  It  is  said,  if  it  be  established  that  the 
bank  are  answerable  for  this  fraud,  it  is  the  fraud  of  the  manager,  and 
ought  not  to  have  been  described,  as  here,  as  the  fraud  of  the  bank. 
I  need  not  go  into  the  question  whether  it  be  necessary  to  resort  to  the 
count  in  case  for  fraud,  or  whether,  under  the  circumstances,  money 
having  been  actually  procured  for  and  paid  into  the  bank,  which  ought 
to  have  got  into  the  plaintiff's  hands,  the  count  for  mone}'  had  and 
received  is  not  applicable  to  the  case.  I  do  not  discuss  that  question, 
because  in  common  law  pleading  no  such  difficulty  as  is  here  sug- 
gested is  recognized.  If  a  man  is  answerable  for  the  wrong  of  another, 
whether  it  be  fraud  or  otber  wrong,  it  may  be  described  in  pleading  as 
the  wrong  of  the  person  who  is  sought  to  be  made  answerable  in  the 
action.  That  was  the  decision  in  the  case  of  Raphael  v.  Goodman, 
8  A.  &  E.  565.  The  sheriff  sued  upon  a  bond  ;  plea,  that  the  bond 
was  obtained  by  the  sheriff  and  others  by  fraud  ;  proof,  that  it  was 
obtained  by  the  fraud  of  the  officer ;  held,  the  plea  was  sufficiently 
proved. 

Under  these  circumstances,  without  expressing  any  opinion  as  to 
what  verdict  ought  to  be  arrived  at  b}-  the  jury,  especially  considering 
that  the  whole  case  may  not  have  been  before  them,  we  think  this  is  a 
matter  proper  for  their  determination,  and  there  ought  therefore  to  be 
a  venire  de  novo.  Venire  de  novo.^ 


HATHAWAY,  Survivor,  etc.,  Respondent,  v.  JOHNSON, 
Appellant. 

Court  of  Appeals  of  New  York.     1873. 
[55  N.  Y.  93.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in 
the  fourth  judicial  department,  reversing  an  order  of  Special  Term, 
which  vacates  an  order  of  arrest  made  by  a  justice  at  chambers. 

This  action  was  brought  to  recover  the  purchase-price  of  a  quantity 
of  malt  alleged  to  have  been  sold  by  plaintiff's  firm  to  defendant.  An 
order  of  arrest  was  granted  upon  an  aflSdavit  stating  that  the  sale  of 
the  malt  was  induced  by  fraudulent  representations  on  the  part  of 
defendant.  The  papers,  on  the  motion  to  vacate  the  order  of  arrest, 
disclosed  that  defendant's  business  was  conducted  by  one  Bidwell,  who 
made  the  purchase  of  plaintiff's  firm  ;  that  defendant  had  no  knowledge 

1  See  Mackay  v.  Commercial  Bank,  L.  R.  5  P.  C.  394  (1874^  ;  Weir  v.  Bell,  3  Ex. 
D.  238,  243-245  (C.  A.,  1878),  per  Buamwell,  L.  J. ;  Houldsworth  v.  City  of  Glasgow* 
Bank,  5  App.  Cas.  317,  339  (H.  L.,  1880),  per  Lord  Blackburn.  — Ed. 


416  HATHAWAY   V.    JOHNSON.  [CHAP.  II. 

of  the  purchase  or  of  the  representations  made  thereon,  until  the  ser- 
vice of  the  papers  in  this  action. 

George  F.  Danforth,  for  the  appellant. 

X  C.  Cochrane,  for  the  respondent. 

Andrkws,  J.  The  single  question  involved  in  this  appeal  is  whether, 
in  an  action  against  a  principal  to  enforce  a  contract  for  the  purchase 
of  propert}-,  made  by  his  agent,  and  to  recover  the  agreed  price, 
\he  principal  can  be  arrested,  on  proof  that  the  vendor  was  induced  to 
enter  into  the  contract  and  give  the  credit  by  means  of  the  fraudulent 
representations  of  the  agent,  where  the  fraud  w^as  not  known  to  or 
authorized  by  the  principal,  and  was  not  ratified  by  him,  unless  such 
ratification  is  to  be  inferred  from  the  receipt  and  use  by  the  principal 
of  the  property  purchased,  before  he  was  informed  of  the  fraud 
practised  bv  the  agent. 

This  question  depends  upon  the  construction  to  be  given  to  that  part 
of  the  fourth  subdivision  of  section  179  of  the  Code,  which  authorizes 
an  arrest  "where  the  defendant  has  been  guilt}'  of  a  fraud  in  con- 
tracting the  debt,  or  incurring  the  obligation  upon  which  the  action  is 
brought."  The  obvious  purpose  of  this  provision  was  to  introduce  an 
exception  to  the  general  rule  prevailing  in  this  State,  forbidding  arrest 
and  imprisonment  for  debt,  and  to  permit  this  remedj'  in  an  action 
upon  contract  in  the  single  case  specified  ;  and  the  test  of  the  liabilit}' 
to  arrest  in  such  an  action  is  the  guilt  of  the  defendant  in  contracting 
the  debt  or  incurring  the  obligation  sued  upon.  Tliere  must  have 
been  a  fraudulent  purpose  in  contracting  the  debt  or  incurring  the 
liability  on  the  part  of  the  defendant  whose  arrest  is  sought.  He  must 
have  been  guilty  of  a  fraud,  and  this  implies  personal  misconduct, 
moral  and  actual,  and  not  merely  legal  or  constructive  fraud,  merely  in 
respect  to  the  transaction  which  is  the  subject  of  the  suit.  This  con- 
struction is  strengthened  by  the  consideration  that  it  harmonizes  the 
statute  with  the  general  polic}'  and  legislation  of  the  State.  The  act 
of  April  26,  1831.  "to  abolish  imprisonment  for  debt  and  to  punish 
fraudulent  debtors,"  abrogated  the  S3-stem  under  which  an  innocent 
debtor,  whose  onl}'  fault  might  be  his  inability  to  pay  his  debts,  could 
be  deprived  of  his  liberty  and  imprisoned  at  the  instance  of  the  cred- 
itor. It  was  a  system  of  great  severity,  fruitful  of  oppression  ;  and  its 
abolition  was  demanded  by  public  sentiment,  influenced  by  the  growth 
of  more  just  and  humane  views  of  the  respective  rights  of  creditors  and 
their  debtors.  But  the  legislature  excluded  from  the  benefit  of  the  act 
fraudulent  debtors,  b}'  subjecting  them  to  arrest  in  an  action  to  recover 
the  debt,  and  to  commitment,  "  as  otlier  prisoners,  on  criminal  process," 
until  they  procured  their  discharge  in  the  mnnner  provided  b}-  the  act 
(§  11).  One  of  the  grounds  on  which  an  arrest  might  be  made  under 
the  act  of  1831  was  identical  with  that  stated  in  the  provision  of  the 
Code  under  consideration,  viz.,  that  the  defendant  fraudulently  con- 
tracted the  debt  or  incurred  the  obligation  respecting  which  the  suit 
was  brought.     (§  4,  sub.  4.; 


SECT.  IV.]  HATHAWAY   V.    JOHNSON.  417 

Statutes  authorizing  arrest  and  imprisonment  for  debt,  although 
remedial  in  that  they  are  designed  to  coerce,  by  means  of  the  imprison- 
ment, the  paj-ment  of  the  creditor,  are  also  regarded  as  penal,  and 
ought  not  to  be  extended  by  construction  so  as  to  embrace  cases  not 
clearly  within  them.  (Sturgis  v.  Crowningshield,  4  Wheat.  200  ;  Von 
Hoffman  v.  The  City  of  Quincy,  4  Wal.  553.)  The  statute  of  1831  and 
the  provisions  of  the  Code  authorizing  arrests  are  in  jjarl  materia  ;  and 
if  the  defendant  can  be  arrested  under  the  Code  in  an  action  ex  con- 
tractu for  the  fraud  of  his  agent,  of  which  he  was  moralh-  guiltless,  in 
an  action  on  the  contract,  I  see  no  reason  why  he  cannot  be  arrested 
and  imprisoned,  as  a  "  prisoner  on  criminal  process,"  under  the  act  of 
1831,  which  is  still  in  force. 

The  order  of  arrest  in  this  case  is  sought  to  be  justified  on  the 
ground  that  the  fraud  of  the  agent  acting  witliin  the  scope  of  his  au- 
thority is,  in  law,  imputed  to  his  principal.  The  autliority  of  the  agent 
to  make  the  contract  for  the  purchase  of  the  malt  is  not  denied ;  and 
the  rule  is  stated  by  Mr.  Justice  Story  to  be  (Stor^^  Ag.,  §  134),  that 
where  the  act  of  the  agent  will  bind  the  principal,  then  his  representa- 
tions, declarations,  and  admissions  respecting  tlfe  subject-matter  will 
also  bind  him,  if  made  at  the  same  time  and  constituting  a  part  of  the 
res  gestcB.  That  the  principal  is  liable  for  the  fraudulent  conduct  and 
representations  of  the  agent,  made  in  the  course  of  his  dealings  for  the 
principal,  where  the  principal  has  received  and  retained  the  fruits  of 
the  fraud,  is  affirmed  by  the  general  current  of  authority.  (Hern  v. 
Nichols,  1  Salk.  289  ;  C'ornfoot  v.  Fowke,  6  M.  &  W.  358  ;  Murray  v. 
Mann,  2  Exch.  537;  Bennett  v.  Judson,  21  N.  Y.  238.)  It  is  conso- 
nant with  reason  and  justice  that  a  principal  should  not  be  allowed  to 
profit  by  the  fraud  of  his  agent ;  and  if  he  adopts  the  contract  made  in 
his  behalf,  although  ignorant  of  the  fraud,  he  should  be  held  liable 
to  make  compensation  to  the  part}'  injured  b\-  it.  An  action  for  the 
deceit  in  such  a  case  was  maintained  in  Bennett  v.  Judson  ;  and  Com- 
stock,  J.,  was  of  opinion  that,  in  point  of  pleading,  the  fraud  might 
be  charged  as  that  of  the  defendant.  In  Udell  v.  Atherton  (7  H.  &  M. 
170),  there  is  a  very  able  discussion  of  the  question,  whether  an  action 
for  deceit  would  lie  in  such  a  case  against  the  principal,  and  the 
learned  judges  were  equally  divided  in  opinion.  But  admitting  the 
right  of  the  plaintiflE"  to  have  brought  an  action  on  the  case  for  fraud 
and  deceit  against  the  defendant,  it  b}'  no  means  establishes  that  he 
was  guilty  of  a  fraud  in  contracting  the  debt,  within  the  provision 
authorizing  an  arrest,  in  an  action  on  the  contract.  The  plaintiff  has 
abandoned  the  pursuit  of  his  remedy,  by  action  for  the  deceit,  and  has 
elected  to  rely  on  the  contract,  and  the  fraud  is  no  part  of  the  cause  of 
action,  but  is  extrinsic  to  it,  and  must  be  established  aliunde  to  warrant 
an  arrest,  and  in  this  form  of  action  it  is  personal  and  not  imputed 
fraud  which  entitles  the  plaintiff"  to  the  order.  The  argument  that  the 
right  to  arrest,  if  the  action  had  been  for  deceit,  is  to  be  taken  into 
view  in  construing  the  provision  in  question  is  without  force,  when  it 

27 


418  AKMOUR    V.    MICHIGAN    CENTRAL    KAILKOAD    CO.       [CHAP.  II. 

is  considered  that,  until  tlae  amendment  of  1863,  no  arrest  was  author- 
ized in  an  action  for  fraud  or  deceit  against  a  resident  of  the  State  ; 
and  if  the  plaintiff''s  construction  is  sound,  then  the  defendant,  before 
tliat  time,  could  have  been  arrested  in  an  action  on  the  contract, 
although  he  could  not  have  been  in  an  action  for  the  fraud.  In  short, 
the  two  provisions  are  not  in  construction  dependent  upon  or  connected 
with  each  other.  Trover  ma^',  in  man^^  cases,  be  maintained  against 
a  person  innocent  of  any  intentional  wrong  (Spraights  v.  Hawle}-,  39 
N.  Y.  441),  and,  where  trover  will  lie,  an  order  of  arrest  in  an  action 
for  the  conversion  may  be  issued. 

But  if  the  plaintiff  should  waive  the  tort,  and  bring  assumpsit  to 
recover  the  mone}'  received  on  the  sale  of  the  property,  he  could  not 
arrest  the  defendant.  The  change  in  the  form  of  the  action  would 
prevent  it.  The  true  construction  of  the  provision  of  the  Code  referred 
to  does  not,  in  m}'  judgment,  warrant  an  arrest,  under  the  circum- 
stances of  this  case. 

The  order  should  be  reversed,  and  the  order  of  Special  Term 
affirmed. 

All  concur  except-  Grover,  J.,  dissenting,  and  Folger,  J.,  not 
voting.  Ordered  accordingly. 


ARMOUR   ET   AL.,    Appellants,    v.    MICHIGAN    CENTRAL 
RAILROAD   CO.,    Respondent. 

Commission  of  Appeals  of  New  York.     1875. 
[65  N.  Y.  111.] 

Appeal  from  a  judgment  of  the  General  Term  of  the  Superior 
Court  of  the  city  of  New  York  affirming  a  judgment  in  favor  of  de- 
fendant, entered  upon  the  report  of  a  referee.  (Reported  below, 
3  J.  &  S.,  563.) 

This  action  was  brought  upon  two  bills  of  lading  issued  by 
defendant. 

The  referee  found  the  following  facts,  in  substance  :  That,  on  the 
7th  da}'  of  October,  1867,  one  D.  D.  Michaels  produced  and  delivered 
to  the  defendant's  agent,  in  the  city  of  Chicago,  a  paper  purporting  to 
be  a  receipt,  signed  by  I.  T.  Sunderlin,  dated  the  second  of  the  pre- 
vious July,  for  200  tierces  prime  lard,  his  brand  and  manufacture,  in 
store  for  account  and  risk  of  said  Michaels,  to  be  held  subject  to 
return  of  said  receipt  properly  indorsed,  and  payment  of  storage,  usual 
rate,  loss  and  damage  b}'  fire  or  leakage  at  owner's  risk,  marked  M. 
That  Michaels  delivered  to  the  defendant's  agent  his  order  on  Sun- 
derlin for  100  tierces  of  lard,  and  thereupon  the  defendant,  b}'  its 
agent,  executed  and  delivered  to  Michaels  a  bill  of  lading,  or  carrier's 
receipt,  acknowledging  the  receipt   from  him  of   100  tierces  of  lard 


SECT.  IV.]       ARMOUR   V.    MICHIGAN   CENTRAL    RAILROAD    CO.  419 

consigned  to  the  plaintiffs,  at  New  York,  and  to  be  there  delivered  to 
them.  The  defendant,  at  the  request  of  Michaels,  afterwards,  and  on 
the  12th  of  October,  1867,  on  the  faith  and  credit  of  what  purported 
to  be  Sunderlin's  warehouse  receipt,  having  in  the  mean  time,  at  the 
request  of  Michaels,  omitted  to  call  on  Sunderlin  for  the  100  tierces, 
executed  and  delivered  to  Michaels  another  bill  of  lading,  acknowl- 
edging the  receipt  from  him  of  the  other  100  tierces  of  lard,  like  the 
previous  100  tierces  consigned  and  to  be  transported  to  the  plaintiffs, 
at  New  York.  That  the  defendant,  at  the  time  when  these  bills  of 
lading  were  issued,  was  informed  by  Michaels  that  he  intended  using 
the  same  at  bank  the  same  day.  That  Michaels,  on  the  seventh  of 
October,  made  his  draft  upon  the  plaintiffs  for  $3,600,  to  which  he 
attached  the  defendant's  bill  of  lading  of  that  day,  and  on  the  twelfth 
he  made  another  draft  upon  the  plaintiffs  for  the  further  sum  of  $3,600, 
to  which  he  attached  the  bill  of  lading  of  the  latter  date,  each  of  which 
drafts  were  made  payable  to  the  order  of  and  was  delivered  to  the 
Manufacturers'  National  Bank  of  Chicago,  b}-  whom  they  were,  with 
the  bills  attached,  transmitted  to  New  York,  and  there  caused  to  be 
presented  to  the  plaintiffs  for  payment ;  and  that  the  plaintiffs,  on  the 
faith  and  credit  of  the  respective  bills  of  lading,  paid  the  first  draft  on 
the  10th  or  11th  of  October,  1867,  and  the  second,  on  the  fifteenth  or 
sixteenth  of  the  same  month.  It  was  soon  after,  and  prior  to  the 
twentj'-third  of  the  same  October,  discovered  that  the  receipt  pur- 
porting to  have  been  signed  by  Sunderlin  for  the  200  tierces  of  lard 
was  a  forgery  committed  by  Michaels,  and  that  he  had  not  the  property 
referred  to  therein  in  the  hands  of  Sunderlin  ;  of  this  the  defendant 
had  no  prior  knowledge  or  information,  but,  acting  in  the  belief  of  the 
genuineness  of  the  receipt,  and  that  a  certain  197  tierces  of  lard  in 
Sunderlin's  possession,  as  warehouseman,  branded  I.  T.  Sunderlin,  was 
the  property  intended  to  be  covered  by  the  receipt,  caused  them  to  be 
seized  and  placed  in  its  possession,  and  transported  to  New  York, 
where  they  arrived  prior  to  the  thirtieth  of  the  same  month.  On  that 
day,  the  plaintiffs  presented  to  the  defendant's  agent  in  that  city  the 
two  bills  of  lading,  and  requested  the  delivery  to  them  of  the  200 
tierces  of  lard  therein  mentioned,  with  which  request  he  refused  to 
comply ;  and  thereupon,  on  that  day,  the  plaintiffs  commenced  this 
action.  On  the  first  daj-  of  November  following,  Walbridge,  Wat- 
kins  &  Co.,  having  the  right  of  propert}^  and  possession  of  the  197 
tierces  of  lard,  brought  an  action  of  replevin  therefor,  in  the  Supreme 
Court  of  this  State,  against  the  Hudson  River  Railroad  Compan}',  in 
whose  possession  the  lard  then  was,  and  thereby  obtained  the  pos- 
session thereof,  of  which  the  plaintiffs  were  notified  b}'  the  defendant, 
with  a  request  to  appear  and  defend,  and  a  consent  to  substitute,  in- 
stead of  its  attorney,  any  attorney  they  might  name.  They  did  not 
appear  in  the  action,  and,  by  the  judgment  therein,  it  was  adjudged 
that  the  plaintiffs  therein  had  the  right  to  recover  the  197  tierces 
of  lard. 


420  ARMOUK   V.    MICHIGAN    CENTRAL    RAILROAD   CO.       [CHAP.  11. 

As  a  conclusion  of  law  from  these  facts,  the  referee  found  that  by 
the  bills  of  lading,  or  carrier's  receipts,  and  the  deliver}'  of  them  to  the 
plaintiffs  attached  to  Michaels'  drafts  upon  them,  and  the  payment  by 
them  of  those  drafts,  they  acquired  all  the  rights  of  Michaels  ;  and  it 
being  shown  that  the  goods  received  by  the  defendant  for  transporta- 
tion under  its  contracts  were  197  tierces  of  lard,  to  which  Walbridge, 
Watkins  &  Co.  had  paramount  title,  and  right  of  possession,  the  de- 
fendant was  legally  excused  for  the  non-delivery  of  the  197  tierces; 
and  that  for  the  value  of  the  remaining  three  tierces,  the  plaintiffs  were 
entitled  to  recover,  and  ordered  judgment  against  the  defendant  for 
$142.30,  the  balance  thereof. 

Judgment  was  entered  in  accordance  with  those  conclusions. 

Further  facts  appear  in  the  opinion. 

Sarmiel  Hand,  for  the  appellants. 

Benj.  K.  Fhelps,  for  the  respondent. 

Gray,  C.  The  facts  in  this  case  (omitting  those  only  which  are 
immaterial)  are,  in  substance,  these  :  The  defendant  knowing  that  it 
bad  not  received  from  or  on  account  of  Michaels  any  lard  whatever, 
and  with  knowledge  when  the  respective  bills  of  lading  were  issued 
that  Michaels  intended  to  use  them  at  bank,  issued  and  delivered  them 
to  him  ;  these  bills,  when  thus  issued,  were  attached  by  Michaels  to  his 
drafts  upon  the  plaintiffs  for  a  sum  somewhat  exceeding  $7,000,  which, 
upon  presentation  to  them,  they,  upon  the  faith  that  the  defendant  had 
received  and  would  transport  to  the  places  specified  in  the  respective 
bills  the  lard  therein  described  to  be  in  its  possession,  paid  the  sums 
specified  in  the  respective  drafts  at  the  time  and  in  the  order  in  which 
the}'  were  presented  ;  and  thus  the  question  comes  up,  whether  the 
defendant  is  not  estopped  from  setting  up  as  a  defence  to  this  action 
that  its  statements,  known  by  its  agent,  at  the  time  of  making  them, 
to  be  untrue,  were  in  fact  false,  and  that  no  lard  whatever  was  received 
b}'  the  company  for  or  on  account  of  Michaels?  The  true  answer  to 
this  question  is  not  involved  in  doubt.  The  well-recognized  principle 
that  a  party  who,  by  his  admissions,  has  induced  a  third  party  to  act 
in  a  particular  manner  is  not  permitted  to  deny  the  truth  of  his  admis- 
sion, if  the  consequence  would  be  to  work  an  injury  to  such  third  part}-, 
applies  to  and  governs  this  case.  (2  Redfield  on  Law  of  Railways 
[4th  ed.],  167;  Dickerson  v.  Seeley,  12  Barb.  99,  102;  approved  in 
Ellis  V.  Willard,  9  N.  Y.  529,  534.) 

It  is,  however,  insisted  that  the  defendant,  in  issuing  these  bills  of 
lading,  acted  in  good  faith  and  without  any  design  to  commit  a  fraud 
upon  any  one  who  should  make  an  advance  upon  the  strength  of  them, 
and  is,  therefore,  not  estopped  by  the  recital  contained  in  them  of  the 
receipt  of  the  lard.  It  cannot,  I  think,  be  doubted  that  the  defendant 
did  believe  that  what  purported  to  be  Sunderlin's  warehouse  receipt  was 
genuine  and  not  a  forgery.  The  difficulty  is  that  the  defendant's  bill 
of  lading  did  not  recite  the  receipt  by  it  of  Sunderlin's  warehouse  re- 
ceipt for  the  lard,  but  its  own  receipt  of  it,  and  it  may  be  conceded  the 


BECT.  IV.]       ARMOUR   V.    MICHIGAN    CENTRAL    RAILROAD   CO.  421 

defendant  really  believed  the  lard  would  be  forthcoming  when  it  should 
be  demanded,  and  that  no  injury  would  result  to  the  plaintiffs.  But  its 
false  statement  that  it  had  received  the  lard  misled  them,  and  hence 
the  defendant  must  be  held  to  intend  what  was  in  fact  the  legitimate 
consequences  of  its  own  misstatement.  And  now  that  it  has  been  the 
cause  of  the  advances  made  by  the  plaintiffs,  it  is  no  excuse  for  not 
delivering  the  lard,  which  it  represented  to  the  defendant  it  had 
received  from  Michaels,  that  it  was  by  the  judgment  of  the  Supreme 
Court  of  tliis  State  prevented  from  delivering  197  tierces  of  lard,  the 
propert3-  of  another,  which  it  never  received  from  Michaels,  but  seized 
and  would  have  delivered  to  the  plaintiffs  but  for  the  process  and  sub- 
sequent judgment  of  the  court  in  favor  of  the  rightful  owner. 

There  is  some  ambiguit}-  produced  by  a  recital  in  one  of  the  referee's 
conclusions  of  law,  "•  that  the  goods  received  bj-  the  defendant  for  trans- 
portation were  197  tierces  of  lard,"  which  is  solved  by  the  evidence 
and  previous  findings  of  fact,  from  which  it  appears  that  the  paper 
purporting  to  be  Sunderlin's  warehouse  receipt  for  200  tierces  of  lard 
was  the  defendant's  only  reliance  that  Michaels  had  the  lard  for  which 
the  bills  of  lading  were  given,  and  that  the  receipt  purporting  to  have 
been  given  by  Sunderlin  was  a  forgery  committed  bj-  Michaels  himself, 
who  had  not  the  property  therein  referred  to  ;  and  further  on,  inde- 
pendent of  what  is  shown  as  the  judgment  record  in  replevin,  he  found 
that  Walbridge,  Watkins  &  Co.,  and  not  Michaels,  had  not  only  the 
right  of  propert}'  in,  but  the  right  of  possession  of,  the  197  tierces  of 
lard  which  the  defendant  caused  to  be  seized  with  intent  to  carrj-  and 
deliver  the  same  to  the  plaintiffs  instead  of  the  200  tierces  represented 
b}-  the  forged  receipt,  and  which,  by  the  bill  of  lading,  the  defendant 
falsely  represented  to  be  in  its  possession,  and  of  which  it  was  never 
either  actually  or  constructively  possessed. 

The  judgment  of  the  General  and  Special  Terms  should  be  reversed 
and  new  trial  ordered. 

DwiGHT,  C.^  The  simplest  way  of  arriving  at  the  correct  result  in 
this  case  will  be  to  inquire,  in  the  first  place,  as  to  what  would  have 
been  the  rights  of  the  plaintiffs  in  case  the  defendant  had  had  the  lard 
in  its  possession,  next  to  consider  the  defendant's  obligations  as  hav- 
ing no  goods  to  correspond  with  the  bill  of  lading,  and  finally  to  take 
into  account  the  effect  of  the  proceedings  in  replevin. 

I.  In  case  the  defendant  had  had  in  its  possession  lard  to  corres- 
pond with  the  bills  of  lading,  the  plaintiffs  would  have  had  the  title  to 
it  in  trust  for  Michaels  after  paying  its  own  lien.  It  will  be  observed 
that  the  bills  ran  directly  to  the  plaintiffs.  The  consignment  was  made 
to  them.  They  are  not  assignees  of  bills  made  to  Michaels,  but  the 
contract  to  deliver  the  lard  is  made  b}'  the  defendant  with  them.  The}' 
were  not  mere  agents  of  Michaels,  but  they  had  an  interest  to  the  ex- 
tent of  $7,000  and  upward.     This  fact  the  defendant  knew  when  the 

1  After  statins:  the  facts.  —  Ed 


422  ARMOUR   V.    MICHIGAN    CENTRAL    RAILROAD    CO.       [CHAP.  IL 

bills  were  issued,  and  it  could  not  den}-  that  it  contracted  to  deliver 
the  lard  to  the  plaintiffs  in  case  that  it  had  the  property  in  its  posses- 
sion. The  effect  of  such  a  bill  of  lading  ruiuiing  to  a  consignee  who 
has  made  advances  vvas  considered  in  The  Bank  of  Rochester  r.  Junes, 
4  N.  Y.  497,  502  ;  Haille  v.  Smith,  1  Bos.  &  Pull.  060  ;  Allen  .'.  Wil- 
liams, 12  Pick.  297 ;  First  National  Bank  of  Toledo  v.  Shaw,  61  N.  Y. 
283.  It  was  held  in  these  cases,  in  substance,  that  where  an  owner  of 
goods  delivers  them  to  a  carrier,  who  issues  a  bill  of  lading  to  a  con- 
signee, who  advances  money  on  the  faith  of  the  bills,  the  latter 
becomes  owner  for  his  own  sake  to  reimburse  himself,  and  after  reim- 
bursement, in  trust  for  the  former  owner.  Haille  v.  Smith  is  directly 
in  point.  In  that  case,  G.  &  H.  Brown,  of  Liverpool,  wishing  to 
draw  upon  L.  Smith  &  Co.,  a  banking-house  in  London,  to  a  large 
amount,  agreed,  among  other  securities  to  be  given,  to  consign  goods 
to  a  mercantile  house  consisting  of  the  same  partners  as  the  banking- 
house.  The  goods  were  consigned  accordingly  to  the  mercantile  house. 
It  was  held  that  the  consignment  to  the  mercantile  house  transferred 
to  it  the  general  property  in  the  goods  in  trust,  and  that  the  banking- 
house  and  consignors  were  both  concerned  as  cestui  que  trust,  and 
that  the  bill  of  lading  operated  as  an  evidence  of  the  change  of  prop- 
erty. The  principle  of  this  case  has  been  twice  approved  in  this 
court  (see  the  cases  above  cited),  and  must  now  be  regarded  as  set- 
tled law.  As  applied  to  the  facts  of  the  present  case,  it  would  result 
that  the  plaintiffs  would  have  had  the  legal  title  to  the  lard  ;  that  the 
contract  for  its  deliver}-  was  made  with  them,  and  that  in  general  they 
would  have  been  able  to  vindicate  their  claim  to  the  property  by  all 
the  remedies  incident  to  ownership  and  to  a  contract  for  transportation 
of  their  property. 

IL  It  is  now  necessary  to  consider  how  far  the  fact  that  the  company 
had  no  lard  affects  this  question.  This  inquiry  divides  itself  into  two 
branches.  One  concerns  the  power  of  Street  to  bind  the  company-  by 
issuing  bills  of  lading  when  it  has  no  goods  to  correspond  with  the 
bills.  The  other  is  to  consider  the  effect  of  the  bills,  assuming  that 
the  agent  had  the  requisite  authorit}'.  The  defendant  insists  that  Street 
could  not  bind  it  b}'  issuing  fictitious  or  non-representative  bills  of 
lading.  It  claims  that  his  authority  was  confined  to  bills  for  goods 
actually  within  its  control.  It  cites,  to  this  eflfect,  Grant  v.  Norway, 
10  Com.  Bench,  665  ;  Schooner  Freeman  v.  Buckingham,  18  How. 
(U.  S.)  182. 

Grant  v.  Norway-  has  been  subject  to  much  and  severe  criticism,  as 
being  adverse  to  the  general  view  prevailing  in  the  courts  of  this  State, 
where  confidence  has  been  reposed  in  an  agent  and  an  apparent  author- 
it}'  conferred  upon  him,  that  the  principal  must  suffer  from  an  actual 
exercise  of  authorit}'  not  exceeding  the  appearance  of  that  which  is 
granted.  When  one  of  two  innocent  persons  must  suffer  in  such 
a  case,  that  person  must  bear  the  loss  who  reposed  the  confidence. 
So  far  as  Grant  v.  Norwa}'  stands  in  the  way  of  this  doctrine,  it  must 


SECT.  IV.]       ARMOUR   V.    MICHIGAN    CENTRAL   RAILROAD   CO.  423 

be  deemed  to  be  overruled.  (Remarks  of  Davis,  J.,  in  N.  Y.  &,  N.  H. 
R.  R.  Co.  V.  Schuyler,  34  N.  Y.  73.)  Grant  v.  Norwa}-,  however,  is 
not  precisely  parallel  with  the  present  case.  In  that  case  the  bill  of 
lading  was  issued  to  a  party  who  knew  that  the  bill  of  lading  was  issued 
by  an  agent  without  authority,  and  was  then  transferred  to  a  purchaser 
acting  in  good  faith.  It  may,  accordingl}-,  be  said  with  plausibility 
that  the  representation  was  not  made  to  the  assignee,  who  simply  ac- 
quired the  title  of  the  fraudulent  consignee.  It  would  have  resembled 
the  case  at  bar  if  the  plaintiffs  had  known  of  the  forgery  of  Michaels 
when  they  took  the  bills  of  lading,  and  had  then  transferred  them  to 
persons  paying  value  and  acting  in  good  faith.  The  case  would  then 
have  been  governed  by  the  rule  that  an  assignee  of  a  thing  in  action 
must  abide  b}'  the  case  of  him  of  whom  he  buys.  (Remarks  of  Sel- 
den,  J.,  in  Griswold  v.  Haven,  25  N.  Y.  604-GOG.) 

Street,  having  power  to  issue  bills  direct  to  consignees  for  goods 
actually  in  the  possession  of  the  defendant,  and  the  present  bills  being 
in  no  ways  distinguishalile  in  form  from  those  which  were  usuall}-  em- 
ployed, he  must  be  considered  as  having  the  necessary  authority  as  to 
the  plaintiffs  acting  in  good  faith. 

The  only  remaining  point  under  this  branch  of  the  case  is,  whether 
the  defendant  is  not  estopped  b3'  the  statements  in  the  bill  of  lading 
from  denying  that  it  had  sufficient  lard  secured  from  Michaels  to  com- 
ply with  its  terms.  The  defendant's  agent  was  informed  bj-  Michaels 
that  the  bills  were  to  be  used  at  bank  on  the  same  da}'.  The}"  were 
issued  with  the  expectation  that  thev  would  be  acted  upon  b}'  bankers 
or  other  capitalists.  It  cannot  complain  if  the  bills  accomplished  the 
purpose  for  which  they  were  designed.  The  representations  in  the  bills 
were  made  to  any  one  who,  in  the  course  of  business,  might  think  fit  to 
make  advances  on  the  faith  of  them.  There  is  thus  present  every 
element  necessary  to  constitute  a  case  of  estoppel  in  'pais,  a  represen- 
tation made  with  the  knowledge  that  it  might  be  acted  upon,  and  sub- 
sequent action  upon  the  faith  of  it  to  such  an  extent,  that  it  would 
injure  the  plaintiffs  if  the  representation  was  not  made  good.  It  is 
now  well  settled  that  fraud  is  not  necessary  to  constitute  a  case  of 
estoppel.  Though  the  defendant  was  induced  b}'  the  fraud  or  mistake 
of  Michaels  to  issue  these  bills,  that  is  immaterial.  Its  liabilit}-  de- 
pends on  the  fact  that,  no  matter  what  its  inducements  may  have  been, 
it  has  made  certain  representations  upon  which  the  plaintiffs  have  ad- 
vanced their  money  in  good  faith.  If  the  defendant  placed  undue  con- 
fidence in  Michaels,  it  is  but  the  familiar  case  of  imposing  the  burden 
upon  him  who  unwisely  or  unguardedly  reposed  the  confidence.  (Brown 
V.  Bowen,  30  X.  Y.  519  ;  Manufacturers  and  Traders'  Bank  v.  Hazard, 
id.  226  ;  Shapley  v.  Abbott,  42  id.  443  ;  Rawls  v.  Deshler,  4  Abb.  Ct 
App.  12.)  The  principle  governing  the  present  case  was  announced 
m  the  case  of  Griswold  v.  Haven,  25  N.  Y.  595.  It  there  appeared 
that  the  defendants  John  Wright  &  Co.  issued  receipts  representing 
that  they  had  in  store,  on  account  of  Ford  «&;  Son,  a  quantity  of  graia 


424  ARMOUR    V.    MICHIGAN    CENTRAL    RAILROAD   CO        [CHAP.  II. 

One  of  the  defendants  went  with  one  of  the  firm  of  Ford  &  Co.  to  the 
plaintiff,  and  in  ve[Ay  to  an  inquiry  from  the  plaintiff  stated  that  the 
grain  was  in  good  oi'der  and  all  right.  It  was  held  that  the  plaintiff 
having  made  advances  on  the  faith  of  the  statement,  the  defendants 
were  bound  bv  the  act  of  tlieir  agent,  and  were  estopped  from  denying 
that  they  had  the  grain  in  store.  The  difference  in  facts  between  this 
case  and  the  one  at  bar  makes  no  difference  in  principle.  In  the  one 
case  the  statement  was  oral,  in  the  other  it  was  written.  Both  cases 
have  the  important  and  leading  element  that  the  agent  knew  that  the 
statement  was  to  be  acted  upon. 

The  fact  that  a  bill  of  lading  is  not  negotiable,  has  nothing  to  do 
with  the  question.  That  point  would  have  been  open  for  discussion  if 
the  bills  had  been  issued  to  Michaels  and  then  assigned  to  the  plain- 
tiffs. As  it  was,  the  representations  having  been  made  direct  to  the 
plaintiffs,  their  right  of  action  is  not  derived  through  Michaels,  but  rests 
upon  the  direct  relations  between  themselves  and  the  defendant.  This 
view  is  sustained  by  the  case  of  Moore  v.  The  Metropolitan  Nat.  Bk., 
55  N.  Y.  41.  It  is  there  held  that  a  bona  Jide  purchaser  for  value 
of  a  non-negotiable  chose  in  action  from  one  upon  whom  the  owner 
has  by  assignment  conferred  the  apparent  absolute  ownership  (such 
purchase  being  made  on  the  faith  of  that  ownership),  obtains  a  valid 
title  as  against  the  real  owner,  who  is  estopped  from  asserting  a  title  in 
hostility  thereto.  This  view  is  also  supported  by  McNeil  v.  Tenth 
National  Bank,  46  N.  Y.  325.  The  court  in  the  Metropolitan  Bank 
Case  expressly  affirms  that  a  representation  in  a  non-negotiable  chose 
in  action  is  equivalent  in  all  respects,  where  it  is  acted  upon  (in  accord- 
ance with  the  usual  rules  applied  in  cases  of  estoppel),  to  one  made  in 
the  case  of  negotiable  paper.  As  this  is  the  latest  utterance  of  the 
Court  of  Appeals,  overruHng  Bush  v.  Lathrop,  22  N.  Y.  535,  so  far  as 
that  case  is  inconsistent  with  it,  it  must  be  followed  in  this  court. 

If  these  views  are  correct  the  plaintiffs  in  the  present  case  might 
have  brought  an  action  of  trover  against  the  defendant  for  so  many 
tierces  of  lard  as  the  bill  of  lading  called  for.  Griswold  v.  Haven, 
suj)ra ;  Harding  v.  Carter,  Park  on  Ins.  4;  1  Greenl.  on  Ev.,  §  208. 
The  same  rule  is  applicable  to  innocent  mistakes  which  have  been  acted 
upon  as  to  fraudulent  misrepresentations.  Salem  Bk.  v.  Gloucester  Bk., 
17  Mass.  1,  27. 

As  it  must  be  assumed  that  the  defendants  had  lard  to  which  the 
plaintiffs  had  the  title,  they  could  bring  any  action  incident  to  owner- 
ship in  case  the  lard  was  not  delivered.  The  present  action  is  accord- 
ingly well  founded. 

III.  The  action  of  replevin  instituted  against  the  Hudson  River 
Railroad  Company  by  "Walbridge,  Watkins  &  Co.,  had  no  effect  upon 
the  plaintiffs'  right.  There  was  no  evidence  tliat  the  lard  seized  in  that 
action  was  that  which  the  defendant  was  bound  to  deliver.  It  did  not 
have  the  marks  described  in  the  bills  of  lading,  nor  was  it  received  bj' 
the  defendant  from  Michaels.     On  the  other  hand,  it  was  obtained  bj' 


SECT.  IV.]     BRITISH  BANKING  CO.  V.  CHARNWOOD  FOREST  RY.  CO,      425 

the  defendant  from  the  warehouseman  acting  for  the  real  owners  (Wal- 
bridge  &  Co.)  by  its  own  wrongful  act.  It  cannot  set  up  a  replevin  suit 
which  was  caused  solely  by  its  unjustifiable  intermeddling  with  the 
property  of  another  in  bar  of  its  duty  to  deliver  hird  which  it  pro- 
fessed to  receive  from  Michaels  on  behalf  of  the  plaintiffs. 

The  judgment  should  be  reversed  and  a  new  trial  ordered. 

All  concur,  except  P^arl,  C,  dissenting. 

Judgment  reversed.^ 


BRITISH  MUTUAL   BANKING    CO.   v.   CHARNWOOD 
FOREST  RAILWAY  CO. 

Court  of  Appeal.     1878. 
[18  Q.  B.  D.  714.] 

Appeal  from  an  order  of  the  Queen's  Bench  Division  (Manisty  and 
Mathew,  JJ.)  directing  judgment  to  be  entered  for  the  plaintiffs. 

The  action  was  brought  to  recover  damages  for  fraudulent  misrepre- 
sentations alleged  to  have  been  made  b}-  the  defendants  through  their 
secretary.  At  the  trial  before  Lord  Coleridge,  C.  J.,  it  appeared  that 
certain  customers  of  the  plaintiffs  had  applied  to  them  for  an  advance 
on  the  security  of  transfers  of  debenture  stock  of  the  defendant  com- 
pany. The  plaintiffs'  manager  called  upon  Tremayne,  the  defendants' 
secretar}',  and  was  informed  in  effect  that  the  transfers  were  valid,  and 
that  the  stock  which  they  purported  to  transfer  existed.  The  plaintiffs 
thereupon  made  the  advances.  It  subsequently  appeared  that  Tre- 
mayne, in  conjunction  with  one  Maddison,  had  fraudulentl}'  issued  cer- 
tificates for  debenture  stock  in  excess  of  the  amount  which  the  company 
were  authorized  to  issue,  and  the  transfers  as  to  which  the  plaintiffs 
inquired  related  to  this  over  issue.  The  plaintiffs  accordingly  lost  their 
security.  The  defendants  did  not  benefit  in  any  wa}'  by  the  false  state- 
ments of  Tremayne,  which  were  made  entirely  in  the  interest  of  him- 
self and  Maddison.  There  was  some  question  whether  Tremayne  was 
still  secretary  at  the  time  the  statements  were  made,  but  the  jur}'  found 
that  the  inquiries  were  made  of  him  as  secretary,  and  that  the  defend- 
ants held  him  out  as  such  to  answer  such  inquiries.  The  jury  assessed 
the  damages,  and  the  Chief  Justice  left  either  of  the  parties  to  move 
for  judgment.     A  motion  was  accordingly  made  on  behalf  of  the  plain- 

1  Ace. :  Sioux  City  &  Pacific  Railroad  Co.  v.  First  National  Bank,  10  Neb.  556  (1880) ; 
Bank  of  Batavia  v.  N.  Y.,  L.  E.  &  W.  Railroad  Co.,  106  N.  Y.  195  (1887)  ;  Fifth 
Avenue  Bank  y.  F.  S.  S.  &  G.  S.  F.  Railroad  Co.,  137  N.  Y.  231  (1893). 

And  see  Wichita  Savings  Bank  v.  A.,  T.  &  S.  F.  Railroad  Co.,  20  Kan.  519  (1878) ; 
Brooke  v.  N.  Y.,  L.  E.  &  W.  Railroad  Co.,  108  Pa.  529  (1885). 

Compare  Manhattan  Life  Insurance  Co.  v.  F.  S.  S.  &  G.  S.  F.  Railroad  Co.,  139 
N.  Y.  146  (1893) ;  Bank  of  New  York  v.  American  Dock  &  Trust  Co.,  143  N.  X.  55'J 
(1894).  — Ed. 


426      BRITISH  BANKING  CO.  V.  CHARNWOOD  FOREST  RY.  CO.     fCHAP.  II. 

tiffs  before  Manisty  and  Mathew,  JJ.,  who  directed  judgment  to  be 
entered  for  them. 

Tlie  defendants  appealed. 

Fiiilay,  Q.  C,  and  II.  Suttoii,  for  the  defendants. 

W.  Graham  and  Edward  Morten,  for  the  plaintiffs. 

II.  Sutton,  in  reply. 

Lord  EsHER,  M.  K.  In  this  case  an  action  has  been  brought  by 
the  plaintiffs  to  recover  damages  for  fraudulent  misrepresentation  by 
the  defendants,  through  their  secretary',  as  to  the  validity  of  certain 
debenture  stock  of  the  defendant  company.  The  defendants  are  a 
corporation,  and  the  alleged  misrepresentations  were  in  fact  made  hy 
a  person  employed  in  the  capacity  of  their  secretary,  and  it  cannot  be 
doubted  that  when  he  made  the  statements  he  had  a  fraudulent  mind, 
and  made  them  knowing  them  to  be  false. 

I  differ  from  the  judgment  of  the  Divisional  Court,  but  I  do  not 
think  the  ground  on  which  m}'  decision  is  based  was  present  to  the 
minds  of  the  learned  judges.  The  point  principally  argued  in  the 
Divisional  Court  seems  to  have  been  that  the  defendants  could  not  be 
liable  on  account  of  their  being  a  corporation.  It  seems  to  me,  how- 
ever, that  there  is  a  defect  in  the  plaintiffs'  case  irrespective  of  the 
question  whether  the  defendants  were  a  corporation  or  not.  The  sec- 
retary' was  held  out  b}'  the  defendants  as  a  person  to  answer  such  ques- 
tions as  those  put  to  him  in  the  interest  of  the  plaintiffs,  and  if  he  had 
answered  them  falsely  on  behalf  of  the  defendants,  he  being  then 
authorized  by  them  to  give  answers  for  them,  it  may  well  be  that  they 
would  be  liable.  But  although  what  the  secretary  stated  related  to 
matters  about  which  he  was  authorized  to  give  answers,  he  did  not 
make  the  statements  for  the  defendants  but  for  himself.  He  had  a 
friend  whom  he  desired  to  assist  and  could  assist  by  making  the 
false  statements,  and  as  he  made  them  in  his  own  interest  or  to  assist 
his  friend,  he  was  not  acting  for  the  defendants.  The  rule  has  often 
been  expressed  in  the  terms,  that  to  bind  the  principal  the  agent  must 
be  acting  "  for  the  benefit"  of  the  principal.  This,  in  my  opinion,  is 
equivalent  to  saying  that  he  must  be  acting  "  for"  the  principal,  since 
if  there  is  authority  to  do  the  act  it  does  not  matter  if  the  principal  is 
benefited  b}-  it.  I  know  of  no  case  where  the  employer  has  been  held 
liable  when  his  servant  has  made  statements  not  for  his  employer,  but 
in  his  own  interest.  The  attention  of  the  learned  judges  seems  to 
have  been  drawn  off  from  this  view  of  the  case  by  the  argument  founded 
on  the  defendants  being  a  corporation,  and  I  think  their  judgment  must 
be  overruled. 

The  following  judgment  was  read  by 

BowEN,  L.  J.  There  is,  so  far  as  I  am  aware,  no  precedent  in  Eng- 
lish law,  unless  it  be  Swift  v.  Winterbotham,  Law  Rep.  8  Q.  B.  244, 
a  case  that  was  overruled  upon  appeal,  Swift  v.  Jewsbur}',  Law  Rep.  9 
Q.  B.  301,  for  holding  that  a  principal  is  liable  in  an  action  of  deceit  for 
the  unauthorized  and  fraudulent  act  of  a  servant  or  agent  committed. 


SECT.  IV.]     BRITISH  BANKING  CO.  V.  CHAKNWOOD  FOREST  RY.  CO       4^7 

not  for  the  general  or  special  benefit  of  the  principal,  but  for  the  servant's 
own  private  ends.  The  true  rule  was,  as  it  seems  to  me,  enunciated  b}' 
the  Exchequer  Chamber  in  the  judgment  of  Willes,  J.,  delivered  in  the 
case  of  Barwick  r.  English  Joint  Stock  Bank,  Law  Rep.  2  Ex.  259.  "  The 
general  rule,"  sa^'s  Willes,  J.,  "is  that  the  master  is  answerable  foi 
ever}-  such  wrong  of  his  servant  or  agent  as  is  committed  in  the  course 
of  his  service  and  for  the  master's  benefit,  though  no  express  command 
or  privity  of  the  master  be  proved."  This  definition  of  liability  has 
been  constantly  referred  to  in  subsequent  cases  as  adequate  and  satis- 
factory', and  was  cited  with  approval  b}'  Lord  Selborne  in  the  House  of 
Lords  in  Houldsworth  v.  City  of  Glasgow  Bank,  5  App.  Cas.  317. 
Macka}-  v.  Commercial  Bank  of  New  Brunswick,  Law  Rep.  5  P.  C. 
394,  is  consistent  with  this  principle.  It  is  a  definition  strictly  in  ac- 
cordance with  the  ruling  of  Martin,  B.,  in  Linipus  v.  London  General 
Omnibus  Co.,  1  H.  &  C.  526,  which  was  upheld  in  the  Exchequer 
Chamber  (see  per  Blackburn,  J.). 

It  was  argued  on  behalf  of  the  plaintiffs  in  the  present  appeal  that 
the  defendant  company,  although  the\-  migiit  not  have  authorized  the 
fraudulent  answer  given  bj-  the  secretary,  had  nevertheless  authorized 
the  secretary  to  do  '"tliat  class  of  acts'"  of  which  the  fraudulent  an- 
swer, it  was  said,  was  one.  This  is  a  misapplication  to  a  wholly  dif- 
ferent case  of  an  expression  which  in  Barwick  v.  English  Joint  Stock 
Bank,  Law  Rep.  2  Ex.  259,  was  perfectly  appropriate  with  regard  to 
the  circumstances  there.  In  that  case  the  act  done,  though  not  ex- 
pressly authorized,  was  done  for  the  master's  benefit.  With  respect 
to  acts  of  that  description,  it  was  doubtless  correct  to  sa}-  that  the  agent 
was  placed  there  to  do  acts  of  "  that  class."  Transferred  to  a  case 
like  the  present,  the  expression  that  the  secretary'  was  placed  in  his 
office  to  do  acts  of  ''that  class"  begs  the  very  question  at  issue,  for 
the  defendants'  proposition  is,  on  the  contrary,  that  an  act  done  not 
for  the  employer  s  benefit,  but  for  the  servant's  own  private  ends,  is  not 
an  act  of  the  class  which  the  secretarj'  either  was  or  could  possibly  be 
authorized  to  do.  It  is  said  that  the  secretary  was  clothed  ostensiblj' 
with  a  real  or  apparent  authority  to  make  representations  as  to  the 
genuineness  of  the  debentures  in  question  ;  but  no  action  of  contract 
lies  for  a  false  representation  unless  the  maker  of  it  or  his  principal 
has  either  contracted  that  the  representation  is  true,  or  is  estopped 
from  denying  that  he  has  done  so.  In  the  present  case  the  defendant 
company  could  not  in  law  have  so  contracted,  for  any  such  contract 
would  have  been  beyond  their  corporate  powers.  And  if  they  cannot 
contract,  how  can  they  be  estopped  from  denying  that  they  have  done 
so?  The  action  against  them,  therefore,  to  be  maintainable  at  all,  must 
be  an  action  of  tort  founded  on  deceit  and  fraud.  But  how  can  a  com- 
pany be  made  liable  for  a  fraudulent  answer  given  by  their  officer  for 
his  own  private  ends,  by  which  they  could  not  have  been  bound  if  they 
had  actually  authorized  him  to  make  it,  and  promised  to  be  bound  by 
it?     The  question  resolves  itself  accordingly  into  a  dilemma.     The 


428      BRITISH  BANKING  CO.  V.  CHARNWOOD  FOREST  RY.  CO.     [CHAP.  II. 

fraudulent  answer  must  have  either  been  within  the  scope  of  the  agent's 
emploj'ment  or  outside  it.  It  could  not  be  within  it,  for  the  company 
had  no  power  to  bind  themselves  to  the  consequences  of  anj'  such  an- 
swer. If  it  is  not  within  it,  on  what  ground  can  the  compau}'  be  made 
responsible  for  an  agent's  act  done  beyond  the  scope  of  his  employ- 
ment, and  from  which  they  derived  no  benefit?  This  shows  that  the 
proposition  that  the  secretary  in  the  present  case  was  emploj'ed  to  do 
that  "class  of  acts"  is  fallacious,  and  cannot  be  maintained.  The 
judgment  of  the  court  below  is  based  upon  the  view  that  the  act  done 
was  in  fact  within  the  scope  of  the  secretary's  employment,  and  if  tliis 
proposition  cannot  be  maintained,  the  judgment  must  fall  with  it.  How 
far  a  statutory  corporate  body  could  in  an}-  case  be  made  liable  in  an 
action  for  deceit  beyond  the  extent  of  the  benefits  they  have  reaped 
bj'  the  fraud  is  a  matter  upon  which  I  desire  to  express  no  opinion,  for 
none  is  necessar}'  to  the  decision  here  ;  but  even  if  the  principals  in 
the  present  case  were  not  a  statutory  body,  with  limited  powers  of  con- 
tracting and  of  action,  I  think  there  would  be  danger  in  departing  from 
the  definition  of  liability  laid  down  by  Willes,  J.,  in  Barwick  v.  English 
Joint  Stock  Bank,  and  in  extending  tbe  responsibility  of  a  principal  for 
the  frauds  committed  by  a  servant  or  agent  be^'ond  the  boundaries  hith- 
erto recognized  by  English  law.  I  think,  therefore,  that  this  appeal 
must  be  allowed  with  costs. 

Frt,  L.  J.  I  agree  in  the  view  that  the  appeal  must  be  allowed. 
It  appears  to  me  that  the  case  is  one  of  an  action  for  fraudulent  misre- 
presentation made  by  a  servant,  who  in  making  it  was  acting  not  in  the 
interest  of  his  employers,  but  in  his  own  interest.  It  is  plain  that 
the  action  cannot  succeed  on  any  ground  of  estoppel,  for  otherwise 
the  defendants  would  be  estopped  from  denying  that  the  stock  was 
good.  No  corporate  body  can  be  bound  b}'  estoppel  to  do  something 
bej'ond  their  powers.  The  action  cannot  be  supported,  therefore,  on 
that  ground.  Nor  can  it  be  supported  on  the  ground  of  direct  au- 
thority to  make  the  statements.  Neither  can  it  be  supported  on  the 
ground  that  the  company  either  benefited  by  or  accepted  or  adopted 
any  contract  induced  or  produced  b}-  the  fraudulent  misrepresentation. 
I  can  see  no  ground  for  maintaining  the  action,  and  the  appeal  must 
be  allowed.  Appeal  allowed. 


SECT.  V.l  REX   V.    ALMON.  429 

SECTION   V. 
Crimes. 

REX  V.   ALMON. 
King's  Bench.     1770. 

[5  Burr.  2686.] 

The  defendant  having  been  convicted  of  publishing  a  libel  (Junius's 
Letters)  in  one  of  the  inagazines  called  the  "  London  Museum,"  which 
was  bought  at  his  shop,  and  even  professed  to  be  "  Printed  for  him  ;  " 

His  counsel  moved,  on  Tuesday,  19th  June,  1770,  for  a  new  trial; 
upon  the  foot  of  the  evidence  being  insufficient  to  prove  any  criminal 
intention  in  Mr.  Almon,  or  even  the  least  knowledge  of  their  being 
sold  at  his  shop.  And  they  had  affidavits  to  prove,  that  it  was  a 
frequent  practice  in  the  trade,  for  one  publisher  to  put  another  pub- 
lisher's name  to  a  pamphlet,  as  printed  for  that  other,  when  in  fact  it 
was  published  for  himself.  That  this  was  the  fact  in  the  present  case  ; 
Mr.  Miller  being  the  real  publisher  of  this  "  Museum,"  but  having 
advertised  it  and  published  it  as  printed  for  Mr.  Almon,  without  con- 
sulting Mr.  Almon,  or  having  his  consent  or  approbation.  That,  on 
the  contrary,  as  soon  as  he  saw  his  name  put  to  it  as  being  printed  for 
him,  he  immediatel}'  sent  a  note  to  Mr,  Miller,  expressing  his  disappro- 
bation and  dissatisfaction.  That  he  himself  had  no  concern  whatever 
in  this  "  London  Museum."  That  he  was  not  at  home  when  the}'  were 
sent  to  his  shop.  That  the  whole  number  sent  to  his  shop  was  three 
hundred.  That  about  sixt3-seven  of  them  had  been  sold  there,  by  a 
boy  in  the  shop,  but  without  Mr.  Almon's  own  knowledge,  privity,  or 
approbation.  That  as  soon  as  he  discovered  it,  he  stopped  the  sale, 
ordered  the  remainder  to  be  carried  up  into  his  garret,  and  took  the 
first  opportunity  to  return  them  to  Mr.  Miller.  That  it  was  not  proved, 
that  the  person  who  sold  them  was  Mr.  Almon's  servant,  or  employed 
by  him  ;  or  that  Mr.  Almon  was  at  all  privy  to  the  sale. 

On  Wednesday  27th  June,  1770,  it  came  on  again  ;  and 

Serjeant  Glyn?^  argued  that  the  proof  against  Mr.  Almon  appearea 
therefore  to  be  defective :  there*  was  nothing  to  constitute  criminality, 
or  induce  punishment. 

That  after  the  jury  had  been  out  about  two  hours,  one  of  them  (Mr. 
Mack  worth)  proposed  a  doubt  "  Whether  the  bare  proof  of  the  sale  in 
Mr.  Almon's  shop,  without  any  proof  of  privity,  knowledge,  consent, 
approbation,  or  malus  animus,  in  Mr.  Almon  himself,  was  sufficient  in 
law  to  convict  him  criminally  of  publishing  a  libel." 

Mr.  Maekworth  understood  his  lordship's  answer  to  this  doubt  to  be 
this:    "That   this  was   conclusive    evidence."     Otherwise,  Mr.  Mack- 


430  REX   V.   ALMON.  [CHAP.  II. 

worth  was  convinced  in  his  own  mind,  that  the  defendant  ought  not  to 
be  found  guilty  upon  this  evidence  ;  nor  would  he  have  found  him 
guilt}'.  He  certainly  gave  his  verdict  under  a  mistake.  If  he  had 
apprehendefl  that  the  jury  were  at  liberty'  to  exercise  their  own  judg- 
ment, he  would  have  acquitted  the  defendant.  The  serjeaut  prayed 
that  Mr.  Mackworth's  affidavit  might  be  read. 

Lord  Mansfield,     You  know,  it  can't  be  read. 

Mr.  Justice  Aston.  A  juryman's  affidavit  with  regard  to  his  senti- 
ments in  point  of  law,  at  the  trial,  ought  not  to  be  admitted  ;  whatever 
may  be  the  case  of  his  affidavit  tending  to  rectify  a  mistake  in  fact. 

Lord  Mansfield,  in  reporting  the  evidence,  said  he  had  told  the 
juiy,  that  there  was  evidence  of  the  publication,  if  they  beUeved  the 
witnesses.  And  he  said,  he  had  directed  them  (as  he  always  had 
done,  and  as  he  took  the  law  to  be)  that  if  they  were  not  satisfied  that 
the  blanks  were  filled  up  in  the  information,  in  the  true  sense  and  mean- 
ing of  the  writer,  they  ought  to  acquit  the  defendant ;  and  that  the 
epithets  used  in  the  information  were  inferences  of  law,  drawn  from 
the  paper  itself,  and  not  facts  to  be  proved. 

The  Court  were  of  opinion,  that  none  of  the  matters  urged  on  behalf 
of  the  defendant,  nor  all  of  them  added  together,  were  reasons  for 
granting  a  new  trial,  whatever  weight  they  might  have  in  extenuation 
of  his  offence,  and  in  consequence  lessening  his  punishment.  For 
the}'  were  exceedingh'  clear  and  unanimous  in  opinion,  that  this 
pamphlet  being  bought  in  the  shop  of  a  common  known  bookseller 
and  publisher,  importing  by  its  title-page  to  be  printed  for  him,  is  a 
sufficient  prima  facie  evidence  of  its  being  published  by  him  :  not 
indeed  conclusive,  because  he  might  have  contradicted  it,  if  the  facts 
would  have  borne  it,  b}'  contraiy  evidence.  But  as  he  did  not  offer  any 
evidence  to  repel  it,  it  must  (if  believed  to  be  true)  stand  good  till 
answered,  and  be  considered  as  conclusive,  till  contradicted. 

Lord  Mansfield  said  and  repeated,  that  Mr.  Mackworth  had  under- 
stood him  perfectly  right ;  and  he  was  very  glad  to  find  that  there  was 
no  doubt  of  what  he  had  said.  The  substance  of  it  was,  tliat  in  point  of 
law,  the  buying  the  pamphlet  in  the  public  open  shop  of  a  known  pro- 
fessed bookseller  and  publisher  of  pamphlets,  of  a  person  acting  in  the 
shop,  prima,  facie  is  evidence  of  a  pubhcation  b}'  the  master  himself; 
but  that  it  is  liable  to  be  contradicted,  where  the  fact  will  bear  it,  by 
contrary  evidence  tending  to  exculpate  the  master,  and  to  show  that 
he  was  not  privy  nor  assenting  to  it  nor  encouraging  it.  That  this 
being  prima  facie  evidence  of  a  publication  by  the  master  himself,  it 
stands  good  till  answered  b}'  him  ;  and  if  not  answered  at  all,  it  there- 
b}'  becomes  conclusive  so  far  as  to  be  sufficient  to  convict  him.  That 
proof  of  a  public  exposing  to  sale  and  selling,  at  his  shop  by  his  ser- 
vant, was  prima  facie  sufficient ;  and  must  stand  till  contradicted  or 
explained  or  exculpated  by  some  other  evidence  ;  and  if  not  contra- 
dicted, explained  or  exculpated,  would  be  in  point  of  evidence  sufficient 
or  tantamount  to  conclusive.     Mr.   Mackworth's  doubt  seemed  to  be 


SECT,  v.]  REX   V.   ALMON.  431 

"  Whether  the  evidence  was  sufficient  to  convict  the  defendant,  in  case 
he  believed  it  to  be  true."  And  in  this  sense  1  answered  it.  Prima 
facie,  't  is  good  ;  and  remains  so,  till  answered.  If  it  is  believed,  and 
remains  unanswered,  it  becomes  conclusive.  If  it  be  sufficient  in  point 
of  law,  and  the  juryman  believes  it,  he  is  bound  in  conscience  to  give 
his  verdict  according  to  it. 

In  practice,  in  experience,  in  historj-,  in  the  memory  of  all  persons 
living,  this  is  (I  believe)  the  first  time  that  it  was  ever  doubted  "  That 
this  is  good  evidence  against  a  bookseller  or  publisher  of  pamphlets." 
The  constant  practice  is,  to  read  the  libel,  as  soon  as  ever  it  has  been 
proved  to  be  bought  at  the  defendant's  shop.  This  practice  shows 
that  it  is  considered  as  already  proved  upon  the  defendant :  for  it 
could  not  be  read  against  him,  before  it  had  been  proved  upon  him. 

If  I  am  mistaken,  I  am  entirely  open  to  alter  my  opinion,  upon 
being  convinced  that  it  is  a  wrong  one  :  but,  at  present,  I  take  this 
point  to  be  as  much  established,  as  that  an  eldest  son  is  (in  general) 
heir  to  his  father.  And  being  evidence  prima  facie,  it  stands  (if 
believed)  till  contrary'  proof  is  brought  to  repel  it. 

Mr.  Justice  Aston  laid  down  the  same  maxim  as  being  fully  and 
clearly  established,  "  That  this  prima  facie  evidence  (if  believed)  is 
binding  till  contrary  evidence  be  produced."  Being  bought  in  a  book- 
seller's shop,  of  a  person  acting  in  it  as  his  servant,  is  such  p?'?"?ua/aci6 
evidence  of  its  being  published  by  the  bookseller  himself:  he  has  the 
profits  of  the  shop,  and  is  answerable  for  the  consequences.  And  here 
is  a  corroborating  circumstance  ;  namely,  that  it  professes  to  be  printed 
for  him.  It  is  as  strong  a  case  as  could  be  put.  The  sale  in  his  shop  is 
sufficiently  proved,  and  he  is  answerable  for  what  is  done  in  his  shop. 
And  here  is  no  sort  of  proof  produced  in  contradiction  or  exculpation. 
This  primd  facie  evidence,  not  answered,  is  sufficient  to  ground  a 
verdict  upon  ;  and  there  appears  no  reason  for  granting  a  new  trial. 
If  he  had  a  sufficient  excuse,  he  might  have  shown  and  proved  it.  But 
he  has  not  attempted  to  prove  exculpation  or  excuse  ;  therefore  the 
evidence  of  his  publishing  what  was  thus  bought  in  his  shop  must 
stand  till  the  contrary  appears.  There  may  indeed  be  circumstances 
of  extenuation,  or  even  of  exculpation;  and  if  it  were  a  surprise  upon 
him,  the  court  would  have  regard  to  such  circumstances,  as  far  as  tliey 
merited  their  regard  ;  but  here  was  no  kind  of  proof,  of  any  sucli  sort. 

He  cited  Benjamin  Harris's  case,  in  "  State  Trials,"  V.  2.  pa.  1037. 
Rex  V.  Strahan,  H.  3  G.  1,  and  Rex  v.  Eliz.  Nutt,  H.  2  G.  2.  Fitz- 
Gibbons,  47. 

Mr.  Justice  Willes  was  also  of  opinion  that  there  was  no  foundation 
for  the  motion  for  a  new  trial ;  and  that,  upon  all  the  circumstances  of 
this  case,  Mr.  Almon  was  answerable  as  publisher  of  the  libel.  He  is  a 
common  known  bookseller  and  publisher ;  and  it  imports,  upon  the 
face  of  it,  to  be  printed  for  him  ;  and  it  was  l)ought  in  his  shop. 
This  is  sufficient  prima  facie  evidence  of  his  privity,  and  no  contrary 
evidence  was  produced  l)y  him.     It  was  liable    to  be  refuted  or  ex- 


432  REX    V.    MEDLEY.  [CHAP.  II. 

plained  ;  but  as  it  never  was,  nor  any  excuse  shown,  it  stands  good  to 
convict  him. 

Mr.  Justice  Ashhurst  entirelv  concurred  with  his  lordship  and  the 
rest  of  his  brethren,  in  the  doctrine  they  had  laid  down,  and  in 
holding  that  there  was  not  an}-  foundation  for  granting  a  new  trial ; 
and  he  particularly  expressed  his  approbation  of  Lord  Mansfield's 
answer  to  Mr.  Mackworth,  the  juryman. 

The  Court,  therefore,  unanimously  discharged  the  rule  to  show  cause 
why  there  should  not  be  a  new  trial. 


RP:X   v.    medley   and    others. 
Nisi  Prius.     1834. 

[6   C.  ^-  P.  292.] 

Indictment  against  the  chairman,  deputy-chairman,  and  others  of 
the  directors  of  the  Equitable  Gas  Compan}',  and  several  persons  em- 
ployed b}'  them  in  tlie  carrying  on  of  the  works,  for  a  nuisance.  The 
first  count  stated  in  substance,  that,  from  time  whereof  the  memory  of 
man  runneth  not  to  the  contrar}',  there  had  been  and  still  was  a  certain 
ancient  river  called  the  Thames,  &c.,  furnishing  and  affording  whole- 
some water  for  the  drink,  &c.  of  the  inhabitants  near  it,  and  producing 
an  abundant  supplv  of  fish  for  their  food,  and  also  furnishing  useful 
labor  and  employment  to  very  man}'  fishermen  ;  and  that  the  defend- 
ants, well  knowing  the  premises,  on  the  10th  of  October  and  at  other 
times,  on  certain  premises  occupied  by  some  of  them,  did  from  certain 
substances  produce  great  quantities  of  a  certain  fluid  and  vapor  called 
gas,  and  of  coal  tar  and  coke,  and  unlawfully  and  injuriously  conveyed 
and  caused  to  be  conveyed,  by  divers  pipes,  &c.,  great  quantities  of 
filth}',  noxious,  unwholesome,  and  deleterious  liquids,  matters,  scum,  and 
refuse,  resulting  from  the  making  of  the  said  gas,  &c.,  from  the  afore- 
said premises  into  the  said  River  Thames,  whereby  the  waters  became 
charged  and  impregnated  with  the  said  liquid,  &c.,  and  became  corrupted 
and  insalubrious,  and  unfit  for  the  use  of  his  Majesty's  subjects  ;  and  the 
fish  in  the  river  were  greatly  destro3'ed  and  diminished  in  number,  and 
his  Majesty's  subjects  were  deprived  of  the  use  of  them  for  food,  and  very 
many  industrious  people,  who  supported  themselves  and  their  families 
by  catching  and  selling  fish,  were  deprived  of  their  employment,  and 
reduced  to  great  povert}'  and  distress  ;  to  the  common  nuisance  and 
grievous  injury  of  his  Majesty's  subjects,  to  the  evil  example  &c., 
and  against  the  peace  &c. 

The  second  count  was  similar,  except  that  it  omitted  the  injury  to  the 
fish  and  the  fishermen,  and  confined  the  allegation  of  injury  to  the  cor- 
rupting of  the  water,  and  rendering  it  unfit  for  drink,  &c.     The  third 


SECT,  v.]  REX   V.    MEDLEV.  433 

count  was  for  destrojing  and  diminishing  the  number  of  fish,  and 
depriving  the  King's  subjects  of  them  as  an  article  of  food.  The 
fourth  count  was  for  conveying,  and  causing  and  suffering  to  be  drained 
and  conveyed,  great  quantities  of  noisome  and  offensive  liquid  matter, 
&c.,  produced  from  the  making  of  gas,  from  certain  premises  into  the 
stream  and  water  of  the  Thames,  to  the  great  damage  and  common 
nuisance  of  all  the  King's  sulyects,  &c.  The  fifth  count  was  similar  to 
the  first,  except  that  it  omitted  the  words  •'  coal  tar  and  coke,"  and  also 
the  allegation  that  the  premises  were  used  and  occupied  by  some  of  the 
defendants.  The  sixth  count  was  similar  to  the  second,  with  the  omis- 
sions in  the  fifth.  The  seventh  count  was  similar  to  the  third,  with 
the  same  omissions  as  the  fifth  and  sixth.  The  eighth  count  omitted 
the  introductory  allegations,  and  charged  the  defendants  with  having 
conveyed,  and  caused  and  procured  to  oe  conveyed,  b}'  pipes,  &c.,  cer- 
tain noxious  liquids,  produced  b3'  the  making  of  gas,  into  the  river, 
&c.  The  ninth  count  also  omitted  the  introductory  allegations,  and 
charged  the  defendants  with  having  caused,  procured,  permitted,  and 
suffered  great  quantities  of  filthy  and  deleterious  liquids,  &c.  to  run 
and  flow  into  the  river,  &c. 

The  defendants  pleaded  not  guilt}".^  .   .  . 

From  the  evidence  of  the  secretar\'  and  some  of  the  persons  who 
had  been  in  the  employ  of  the  company,  who  were  called  to  fix  the 
several  defendants,  it  appeared  that  the  company  was  established  in 
1830,  and  began  to  supph*  gas  in  1831  ;  that  the  defendant  Medley 
was  chairman  ;  the  defendant  Treherne,  deputy  chairman  ;  the  de- 
fendant Leadbeter,  the  superintendent;  the  defendant  Hines,  the  gas 
engineer ;  and  the  defendants  Bell  and  Simmons,  clerks  in  the  estab- 
lishment ;  —  that  an  endeavor  was  made  to  consume  the  refuse  gas  by 
evaporation,  which  failing,  the  plan  complained  of  was  adopted.  The 
secretary  stated  on  his  cross-examination  that  he  believed  the  directors 
had  not  the  slightest  idea  of  the  new  mode  adopted,  but  left  it  all  to 
the  management  of  Leadbeter,  who  directed  Hines  the  engineer,  who 
gave  orders  to  the  rest  of  the  workmen.  He  also  stated,  that,  from 
the  improved  state  of  the  works,  the  acts  complained  of  were  not 
likely  to  occur  again.  A  prospectus  was  put  in,  in  which  the  directors 
referred  to  the  great  experience  of  Mr.  Leadbeter  as  a  pledge  for  the 
proper  management  of  the  works.   .   .   . 

Campbell,  S.  G.  for  the  prosecution. 

Sir  J.  Scarlett,  for  the  defendants. 

Denman,  C.  J.,  in  summing  up,  said  :  This  is  an  indictment  which 
charges  the  defendants  with  conveying  by  certain  pipes  into  the  river 
a  certain  deleterious  ingredient,  whereby  the  waters  were  corrupted  and 
rendered  unfit  for  human  food,  and,  also,  whereby  the  fish  were  dimin- 
ished in  number,  and  the  fishermen  thrown  out  of  employ.  With  re- 
specie  to  the  fishermen  being  thrown  out  of  emplo}',  I  ought  to  lose  no 

^  Facts  not  bearing  on  Agency  are  omitted.  —  Ed. 
28 


434  REX   V.    MEDLEY.  [CHAP.  II. 

time  in  informing  3011,  tliat  will  not  of  itself  be  ground  for  an  indict- 
ment, as,  if  it  were  sutticient,  every  successful  speculation  in  trade 
might  be  the  subject  of  a  prosecution.  The  question  of  what  is  a 
nuisance  is,  as  is  evident,  a  question  for  the  jury  in  each  particular 
case.  The  words  of  the  indictment  convey  the  law  upon  the  subject 
as  well  as  any  person  sitting  here  can  do.  The  question  will  be,  whether 
there  has  been  a  noxious  and  deleterious  ingredient  conveyed  into  the 
river,  whereby  the  water  has  been  corrupted  and  rendered  unfit  for  use  ; 
and  if  there  has  been,  then  whether,  in  the  concluding  words  of  the 
indictment,  it  was  to  the  common  nuisance  of  the  King's  subjects.  If 
you  think  that  this  has  been  done,  and  that  it  was  conveyed  from  the 
premises  of  the  defendants,  then  you  will  find  them  guilty.  The  dimi- 
nution of  the  number  of  fish  took  place  before  this  establishment,  and 
there  were  also  other  causes  contributing  to  it.  The  second  question 
you  will  have  to  consider  will  be,  which  of  the  defendants  are  guilty  of 
the  nuisance.  As  to  Hines,  if  you  are  satisfied  that  a  nuisance  has 
been  committed,  no  doubt  you  must  find  him  guilty.  It  is  said  that  the 
directors  were  ignorant  of  what  had  been  done.  In  my  judgment  that 
makes  no  difference  ;  provided  you  think  that  they  gave  authority  to 
Leadbeter  to  conduct  the  works,  the}^  will  be  answerable.  It  seems  to 
me  both  common  sense  and  law,  that,  if  persons  for  their  own  advan- 
tage employ  servants  to  conduct  works,  the}'  must  be  answerable  for 
what  is  done  by  those  servants.  It  is  quite  clear,  that  in  great  rivers 
of  this  sort  there  must  be  many  inconveniences,  arising  from  a  variety 
of  causes ;  and  the  question,  therefore,  will  be,  whether  there  has  been 
produced  by  the  special  acts  of  this  company  that  which  you  consider 
to  amount  to  a  nuisance.  With  respect  to  copper-bottomed  vessels,  it 
seems  to  me  that  a  great  number  of  trifling  objects  may  produce  a 
deleterious  effect,  though  the  individual  instances  maj'  not  be  the  sub- 
ject of  indictment.  In  the  present  case,  you  will  say  whether  these 
particular  individuals  have  done  an  act  to  the  common  nuisance  of  the 
King's  subjects. 

Verdict :  —  Guilty,  against  the  chairman,  deputy  chairman,  super- 
intendent, and  engineer  ;  and  not  guilty  as  to  the  other  defend- 
ants. 

Campbell,  S.  G.,  Law,  Recorder,  3Iirehouse,  C.  S.,  Follett  and  Bullock^ 
for  the  prosecution. 

Sir  J.  Scarlett,  Adams,  Serjt.,  and  Kelly,  for  the  defendants. 

A  motion  for  judgment  on  the  parties  convicted  was  made  in  the 
course  of  Trinity  Term,^  before  Lord  Dexman,  C.  J.,  Littledale, 
Taunton,  and  Williams,  J  J. 

Affidavits  were  read  from  the  defendants,  Medle}'  and  Treherne,  in 
which  thej"  stated  that  no  complaints  had  been  made  to  them  at  any 
time  respecting  the  management  of  the  works,  nor  were  they  at  all 

1  The  personal  attendance  of  the  defendants  was  dispensed  with  by  consent.  —  Rep. 


SECT,  v.]  COMMONWEALTH   V.    NICHOLS.  435 

aware  of  the  nuisance  complained  of  until  tlie  iudictment  was  pre- 
ferred ;  and  all  four  defendants  swore  that  the  nuisance  had  been 
wholly  abated  by  the  establishment  of  an  adequate  system  of  evapo- 
ration. 

Sir  '/,  Scarlett,  Adams,  Serjt.,  and  Kelly,  were  heard  in  mitigation  ; 
and  Campbell,  A.  G.,  and  Bullock,  in  aggravation  of  punishment. 

LiTTLEDALE,  J.,  In  giving  judgment,  said:  The  Court  have  to 
pronounce  judgment  in  this  case  of  the  King  against  William  Medley, 
Edmund  Treherne,  Richard  Leadbeter,  and  Edward  Hines,  for  a  nui- 
sance ;  which  is  stated  to  have  been  committed  bj'  conveying  very  large 
quantities  of  noisome  liquids,  arising  from  the  manufacture  of  gas.  into 
the  river  Thames,  whereby  the  water  was  rendered  insalubrious  and  the 
fish  destroyed.  It  has  been  proved,  that  the  water  was  not  only  ren- 
dered improper  for  domestic  purposes,  but  that  a  great  quantity  of  fish 
was  actually  destroyed  by  being  poisoned.  Now,  we  think,  under  all 
the  circumstances,  that  this  is  not  a  matter  to  be  passed  over  mereh'  b}' 
the  infliction  of  a  nominal  fine.  At  the  same  time,  as  no  complaint  has 
been  made  since  this  indictment  was  preferred,  we  do  not  think  it  neces- 
sary to  visit  the  offence  of  these  defendants  with  severe  punishment. 
Under  all  the  circumstances  of  the  case,  tlie  Court  doth  adjudge  that 
the  defendants,  William  Medley  and  Edmund  Treherne,  the  one  being 
the  chairman  and  the  other  the  deputy-chairman  of  this  compan}*, 
which  is  called  "  The  Equitable  Gas  Company,"  do  pa}-  a  fine  of 
£25  each  to  the  King ;  and  that  the  other  defendants,  Richard  Lead- 
beter and  Edward  Hines,  the  one  the  general  superintendent  of  these 
gas-works,  and  the  other  the  engineer,  having  also  some  part  of  the 
direction  of  the  works  confided  to  him,  do  each  of  them  pay  a  fine 
of  £10.1 


COMMONWEALTH  v.   NICHOLS. 
Supreme  Judicial  Court  of  Massachusetts.     1845. 

[10  Met.  259.] 

At  the  trial  of  the  defendant,  in  the  Court  of  Common  Pleas,  before 
CusHiNG,  J.,  upon  an  indictment  on  Rev.  Sts.  c.  47,  §  2,  for  selling 
spirituous  liquor  without  license,  a  witness  testified  that  he  called  at  a 
grocery  shop  in  Lowell,  kept  b}'  the  defendant ;  that  the  defendant 
was  not  present,  but  that  he  found  a  man  there  who  sold  him  a  glass 
of  spirituous  liquor,  to  be  used  in  the  shop ;  but  that  he  did  not  know 
whether  the  man   was   in   the    defendant's   emplo}-  or   not.     Another 

1  Ace:  Eegina  v.  Stephens,  L.  R.  1  Q.  B.  702  (1866),  s.  c.  Beale's  Cas.  Cr.  Law, 
845.  Compare  Chisholm  v.  Doulton,  22  Ch.  T).  7.36,  740  (1889).  See  also  The  King 
V.  Dixon,  3  M.  &  S.  11  (1814);  aud  Commonwealth  v.  Kellev,  140  Mass.  441  (1886) 
—Ed. 


436  COMMONWEALTH   V.    NICHOLS.  [CHAP.  IL 

witness  testified  that  he  knew  the  shop  kept  by  the  defendant,  and 
that  the  defendant  had  a  clerk  in  his  employ  ;  that  he  (the  witness) 
once  went  to  said  shop,  to  purchase  groceries,  when  the  clerk  alone 
was  there,  and  that,  after  he  had  made  his  purchases,  he  went  to  a 
cask,  drew  a  glass  of  liquor,  and  drank  it,  but  did  not  pay  for  it,  and 
was  not  charged  for  it,  to  his  knowledge.  On  cross-examination,  this 
witness  said  he  had  heard  the  defendant  expressly  forbid  his  clerk  to 
sell  any  spirituous  liquor  in  a  less  quantity  than  twentj'-eight  gallons. 

The  defendant's  counsel  requested  the  judge  to  instruct  the  jury,  that 
if  they  doubted,  upon  the  whole  evidence,  whether  these  sales  were 
made  by  the  authority  of  the  defendant,  or  by  his  consent,  the}-  must 
acquit  him.  But  the  judge  declined  so  to  do,  and  instructed  the  jury, 
that  if  the}'  were  satisfied,  beyond  a  reasonable  doubt,  that  the  sales 
were  made  by  the  defendant,  or  an}*  person  in  his  employ,  and  in  his 
shop,  they  would  be  warranted  in  finding  him  guilty.  The  jury  found 
the  defendant  guilt}',  and  he  alleged  exceptions  to  the  instructions. 

£.  F.  Butler,  for  the  defendant. 

Mellen,  for  the  Commonwealth. 

Dewey,  J.  The  question  here  raised  as  to  the  liabilit}'  of  the  prin- 
cipal to  be  punished  criminall}-  for  the  acts  of  his  agent  or  servant,  in 
which  he  does  not  directly  participate  personall}',  is  certainly  not  free 
from  diflJicult}'.  As  to  civil  liabilities,  a  broader  and  more  general 
principle  of  responsibilit}'  applies,  and  the  master  or  principal  ma}-  be 
held  to  answer  in  damages  for  default  and  misdoings  with  which  he 
had  no  other  connection  than  that  which  arises  from  the  fact  that  the 
injury  was  occasioned  b\'  one  emploj'ed  in  his  service.  As  a  general 
rule,  something  beyond  this  is  necessary  to  charge  the  master  crimi- 
nally for  acts  done  b}-  the  servant.  There  must  be  such  a  direct  parti- 
cipation in  the  act,  or  such  assent  and  concurrence  therein,  as  would 
involve  him  morally  in  the  guilt  of  the  action.  Hence  the  cases  are 
comparatively  rare,  and  may  be  considered  as  exceptions  to  the 
general  rule,  where  b}'  legal  rules  a  party  is  charged  criminall}'  for  acts 
of  his  servant  done  without  his  knowledge  and  assent.  The  case  of  a 
bookseller,  or  publisher  of  a  newspaper,  is  to  some  extent  one  creating 
such  liability ;  to  what  precise  extent  is,  perhaps,  j'et  an  unsettled 
question.  Rex  v.  Almon,  5  Burr.  2686,  a  leading  case  on  that  subject, 
only  carried  the  doctrine  so  far  as  to  hold  that  such  relation  to  the  act 
of  sale  by  a  servant  -^^is  prima  facie  evidence  to  establish  the  liabilit}' 
of  the  party,  but  was  not  conclusive  and  might  be  controlled.  It  was 
said  by  Lord  Mansfield  that  he  might  avoid  the  efl'ect  of  it  by  showing 
"that  he  was  not  privy  nor  assenting  to  it,  nor  encouraging  it."  So 
also  it  is  said  that  the  defendant,  in  such  cases,  may  rebut  the  pre- 
sumption by  showing  that  the  libel  was  sold  contrary  to  his  orders,  or 
under  circumstances  negativing  all  privity  on  his  part.  2  Stark,  on 
Slander,  (2d  ed.)  34. 

The  general  rule,  however,  has  been  stated,  I  think,  somewhat  more 
broadly  as  to  the  liability  of  booksellers  and  publishers,  respecting  all 


SECT,  v.]  COMMONWEALTH   V.    NICHOLS.  437 

publications  issued  from  their  establishments  in  the  regular  course  of 
business  ;  and  tliey  have  been  held  answerable  criminally  in  such  cases, 
although  the  particular  act  of  sale  or  publication  was  done  without 
their  knowledge.  1  Hawk.  c.  73,  §  10;  Rex  v.  "Walter,  3  Esp.  R.  21. 
In  the  recent  case  of  Rex  v.  Gutch  &  others,  1  Mood.  &  Malk.  437, 
where  it  appeared  that  Gutch  was  residing  at  a  distance,  was  in  ill 
health,  and  not  interfering  with  the  conducting  of  the  paper,  the  rule 
is  thus  stated  :  "A  person  who  derives  profit  from,  and  who  furnishes 
means  for  carrying  on  the  concern,  and  intrusts  the  conduct  of  the 
publication  to  one  whom  he  selects,  may  be  said  to  cause  to  be  pub- 
lished wliat  actually  appears,  and  ought  to  be  answerable,  although 
3'ou  cannot  show  that  he  was  individually  concerned  in  the  act  of 
publication."  But  in  that  case,  Lord  Tenterden,  in  delivering  the 
opinion  of  the  court,  says,  "I  do  not  mean  to  say,  that  some  possible 
case  ma}'  not  occur,  in  which  he  would  be  exempt ;  but  generally 
speaking,  he  is  answerable." 

Another  class  of  cases,  where  the  liabilit}',  of  the  master  for  the 
criminal  acts  of  the  servant  has  been  recognized,  has  arisen  under 
revenue  laws  and  police  regulations.  In  Attorney  General  v.  Siddon, 
1  C'rompt.  &  Jerv.  220,  and  1  Tyrw.  41  (a  case  of  concealing  smuggled 
goods),  it  was  held  that  a  trader  is  liable  to  a  penalty  for  the  illegal 
act  of  a  servant,  done  in  the  conduct  of  his  business,  with  a  view  to 
protect  the  smuggled  goods,  though  the  master  be  absent  at  the  time 
the  act  is  done.  It  seems  here  again  to  have  been  held  only  ^>/'rw<x 
facie  evidence,  and  that  the  master  might  have  introduced  evidence 
for  the  purpose  of  rebutting  such  prima  facie  case. 

In  Attorney-General  v.  Riddle,  2  Crompt.  &  Jerv.  493,  and  2  Tyrw. 
523,  which  was  an  information  under  St.  1  Geo.  4,  c.  58,  prohibiting 
the  delivery  of  paper  not  tied  up  and  labelled,  and  requiring,  before  it 
is  removed  from  the  place  of  manufacture,  that  it  be  enclosed  in  a 
labelled  wrapper,  the  evidence  was,  that  the  wife  of  the  defendant, 
having  authority  from  him  to  do  certain  acts  in  his  trade  of  a  paper 
manufacturer,  pledged  paper  which  had  no  wrapper  or  label  on  it,  the 
court  held  that  the  authority  of  the  wife  was  a  question  for  the  jury, 
and  that  it  ought  to  have  been  left  to  the  jury  to  decide  whether  or 
not  the  acts  of  the  wife,  under  the  circumstances  stated,  were  done 
by  the  authority  of  the  husband. 

It  seems  to  us  that  the  case  of  a  sale  of  liquors  prohibited  b}"  law, 
at  the  shop  or  establishment  of  the  principal,  by  an  agent  or  servant 
nsualh"  emploN'ed  in  conducting  his  business,  is  one  of  that  class  in 
which  the  master  ma}'  properly  be  charged  criminally  for  the  act  of 
the  servant.  But  in  looking  at  the  question  presented  by  the  bill  of 
exceptions  in  the  present  cases,  and  considering  what  should  be  stated 
as  the  rule  as  to  the  responsibility  of  the  principal  or  master  in  such 
cases,  the  court  have  come  to  the  opinion  that  the  law  was  stated  too 
strongly,  upon  that  point,  against  the  defendant,  inasmuch  as  the 
defendant,  under  the  instructions  given,  might  have  been  found  guilty 


438  COMMONWEALTH    V.    NICHOLS.  [CHAP.  IL 

of  the  charge  in  the  indictment,  if  a  sale  had  been  made  in  his  shop  by 
an}'  person  in  his  employment,  without  any  reference  to  the  circum- 
stances under  which  the  sale  was  made,  and  although  against  the  will 
and  in  contravention  of  the  orders  of  the  defendant. 

We  think  that  a  sale  b}'  the  servant,  in  the  shop  of  tlie  master,  is 
on\y  prima  facie  evidence  of  such  sale  by  the  master  as  would  subject 
him  to  the  penalty  for  violating  the  statute  forbidding  the  sale  of 
spirituous  liquors  without  license  ;  that  the  relation  of  these  parties, 
the  fact  that  the  defendant  was  in  possession  of  the  shop  and  was  the 
owner  of  the  liquor,  and  that  the  sale  was  made  by  his  servant,  furnish 
strong  evidence  to  authorize  and  require  the  jury  to  find  the  defendant 
guilty.  But  we  cannot  sa}'  that  no  possible  case  can  arise  in  which 
the  inference  from  all  these  facts  may  not  be  rebutted  by  other  proof. 
Unexplained,  they  would  be  sufficient  to  convict  the  party.  So  too  it 
should  be  understood  that  merely  colorable  dissent,  or  a  prohibition 
not  to  sell,  however  publicly  or  frequenth'  repeated,  if  not  made  bona 
fide,  will  not  avail.  But  if  a  sale  of  liquor  is  made  by  the  servant 
without  the  knowledge  of  the  master,  and  reall}'  in  opposition  to  his 
will,  and  in  no  way  participated  in,  approved,  or  countenanced  by  him, 
and  this  is  clearly  shown  by  the  master,  he  ought  to  be  acquitted. 

JVew  trial  granted.^ 

1  Ace. :  Barnes  v.  The  State,  19  Conn.  398,  400-401,  405-407  (1849)  ;  The  State  v. 
Smith,  10  R.  I.  258  (1872)  ;  Anderson  v.  The  State,  22  Ohio  St.  305  (1872)  ;  Common- 
wealth V.  Stevens,  153  Mass.  421  (1891)  ;  The  State  v.  McCance,  110  Mo.  398  (1892). 
Compare  George  v.  Gobey,  128  Mass.  289  (1880). 

"  It  would  require  a  clear  expression  of  the  will  of  the  Legislature  to  justify  a 
construction  of  a  penal  statute  which  would  expose  an  innocent  man  to  a  disgraceful 
punishment  for  an  act  of  which  he  had  no  knowledge,  which  he  did  not  in  any  way 
take  part  in  or  authorize,  but  which  he  had  forbiihleu."  Per  Mokton,  C.  J.,  in  Com- 
monwealth V.  Wachendorf,  141  Mass.  270  (1886). 

"  It  is  a  general  principle  of  our  criminal  law  that  there  must  be  as  an  essential 
ingredient  in  a  criminal  offence  some  blameworthy  condition  of  mind.  Sometimes  it 
is  negligence,  sometimes  malice,  sometimes  guilty  knowledge,  —  but  as  a  general  rule 
there  must  be  something  of  that  kind  which  is  designated  by  the  expression  mens  rea. 
Moreover,  it  is  a  principle  of  our  criminal  law  that  the  condition  of  mind  of  the 
servant  is  not  to  be  imputed  to  the  master.  A  master  is  not  criminally  responsible 
for  a  death  caused  by  his  servant's  negligence,  and  still  less  for  an  offence  depending 
on  the  servant's  malice  ;  nor  can  a  master  be  held  liable  for  the  guilt  of  his  servant 
in  receiving  goods  knowing  them  to  have  been  stolen.  And  this  princi])le  of  the  com- 
mon law  applies  also  to  statutory  offences  with  this  difference,  that  it  is  in  the  power 
of  the  Legislature,  if  it  so  pleases,  to  enact,  and  in  some  cases  it  has  enacted,  that  a 
man  may  be  convicted  and  punished  for  an  offence  although  there  was  no  blame- 
worthy condition  of  mind  about  him ;  but,  inasmuch  as  to  do  so  is  contrary  to  the 
general  principle  of  the  law,  it  lies  on  those  who  assert  that  the  Legislature  has  so 
enacted,  to  make  it  out  convincingly  by  the  language  of  the  statute  ;  for  we  ought  not 
lightly  to  presume  that  the  Legislature  intended  that  A.  should  be  punished  for  the 
fault  of  B."     Per  Cave,  J.,  in  Chisholm  v.  Doulton,  22  Ch.  D.  736,  741  (1889).  — Ed. 


SECT,  v.]  COMxMONWEALTH   V.   MORGAN.  439 


COMMONWEALTH   v.   MORGAN  et  al. 
Supreme  Judicial  Court  oe  Massachusetts.      1871. 

[107  iMass.  199.] 

Indictment,  in  Suffolk,  against  Albert  Morgan  and  James  N.  Smart, 
alleging  that  the}'  "did  unlawfully  and  maliciousl}'  compose,  write, 
print,  and  publish,  and  cause  to  be  composed,  written,  printed,  and  pub- 
lished in  a  certain  newspaper,  printed  and  published  at  Boston  in  said 
count}'  of  Suffolk  b}-  said  Morgan  and  Smart,  to  wit,  the  Saturday 
Evening  Express,"  two  libels  against  Chaunce}-  C.  Dean,  the  first  at 
Boston  on  September  11,  1870,  and  the  second  at  Boston  on  September 
18,  1870.  The  indictment  set  forth  the  libels,  which  charged  "State 
Cop.  Dean"  with  having  acted,  while  a  soldier  in  the  array,  in  a  man- 
ner to  indicate  cowardice,  and  with  having  been  drunk  while  on  duty 
as  a  deputy  of  the  constable  of  the  Commonwealth.  The  district 
attorney  entered  a  nolle  prosequi  as  to  Smart. ^  .   .  . 

The  defendant  offered  evidence  tending  to  show  that  he  never  saw 
the  libel  of  September  18,  or  was  aware  of  its  publication,  until  it  was 
pointed  out  to  him  by  a  third  person,  and  that  an  apology  for  and 
retraction  of  the  statements  therein  contained  was  subsequently  pub- 
lished in  the  Saturday  Evening  Express ;  but  the  judge  excluded  the 
evidence  as  immaterial. 

The  defendant  was  called  b}-  his  counsel  as  a  witness,  for  the  purpose 
of  showing  that  he  had  never  seen  the  libels  until  they  were  pointed 
out  to  him,  and  was  asked  on  cross-examination  whether  he  was  not 
the  publisher  of  the  Saturday"  Evening  Express.  He  objected  to  an- 
swering, on  the  ground  that  his  answer  might  criminate  him  ;  but  the 
judge  overruled  the  objection,  and  he  answered  tliat  he  was  the  sole 
publisher,  and  that  the  paper  was  not  published  by  himself  and 
Smart.   .   .  . 

Dean  testified  that  he  bought  copies  of  the  Saturday  Evening 
Express  containing  the  libels  at  newspaper-stands  in  Boston  ;  and 
these  copies  were  put  in  evidence.  One  of  them  was  dated  on  the  first 
page,  Saturday,  September  10,  and  the  other  Saturday,  September  17; 
but  on  the  third  page  of  each  were  two  columns  headed  "  Sunda}' 
Morning,  September  11,"  and  "  Sunday  Morning,  September  18,"  re- 
spectively, and  it  was  in  these  two  columns  that  the  libels  were  printed. 

The  defendant  requested  a  ruling  that  this  evidence  as  to  publication 
would  not  support  the  indictment ;  but  the  judge  declined  so  to  rule, 
and  ruled  "  that  it  was  not  necessar}'  to  prove  the  day  when  published, 
provided  the  publication  was  within  the  statute  of  limitations,  and  the 
proof  that  the  papers  were  purchased  at  the  time  testified  to  by  Deaa 
was  sufficient  evidence." 

^  The  statement  and  the  opinion  have  been  abbreviated  by  omitting  matters  no| 
pertaining  to  Agency.  —  Ed. 


440  COMMONWEALTH  V.    MORGAN.  [CHAP.  II. 

The  jiir}-  returned  a  verdict  of  "-  Guilty  as  to  publishing,  but  not 
guilt}'  as  to  the  rest ;  "  and  the  clerk  adiriued  and  recorded  the  verdict 
in  the  following  form  :  ''  Guilty  of  publishing  as  alleged  in  the  indict- 
ment, and  not  guilty  as  to  the  residue."  After  verdict  the  defendant 
moved  in  arrest  of  judgment,  on  the  ground  "that  he  had  not  been 
convicted  of  any  offence  at  law,"  but  the  motion  was  overruled  ;  and  he 
alleged  exceptions. 

J.  W.  Mahan,  for  the  defendant. 

C.  Allen,  Attorney  General,  for  the  Commonwealth. 

Colt,  J.^  4.  The  defendant  then  offered  to  prove  that  he  had 
never  seen  the  alleged  libel,  and  was  not  aware  of  its  publication  till  it 
was  pointed  out  to  hira  by  a  third  party  ;  and  that  an  apology  and  re- 
traction was  subsequently  published  in  the  same  newspaper. 

When  a  libel  is  sold  in  a  bookseller's  shop,  by  a  servant  of  the  book- 
seller, in  the  ordinary  course  of  his  employment ;  or  is  published  in  a 
newspaper ;  the  fact  alone  is  sufficient  evidence  to  charge  the  book- 
seller, or  the  proprietor  of  the  newspaper,  with  the  guilt  of  its  publica- 
tion. This  evidence,  by  the  earlier  English  decisions,  was  held  not  to 
be  conclusive,  but  the  defendant  was  permitted  to  show,  in  exculpa- 
tion, that  he  was  not  privy,  nor  assenting  to,  nor  encouraging,  the 
publication.  See  1  Lead.  Crim.  Cas.  145  ;  notes  to  Rex  v.  Almon,  5 
Burr.  2686.  Afterwards,  such  evidence  was  held  conclusive,  upon  the 
ground  that  it  was  necessary  to  prevent  the  escape  of  the  real  offender 
behind  an  irresponsible  part}-.  Rex  w.  Gutch,  Mood.  &  Malk.  433; 
Rex  V.  Walter,  3  Esp.  21.  In  both  these  cases,  the  defendants  offered 
to  show,  that  they  were  perfectly  innocent  of  any  share  in  the  criminal 
publication,  and  that,  although  proprietors  of  the  papers,  they  were 
living  at  a  distance  from  London,  the  place  of  publication,  taking  no 
share  in  the  actual  publication,  and  in  one  case  confined  by  illness 
when  the  paper  complained  of  appeared.  It  was  ruled  by  Lord  Ken- 
yon  and  Lord  Tenterden  to  be  no  defence.  But  now,  by  a  recent 
English  statute,  a  defendant  is  permitted  to  prove  that  such  publication 
was  made  without  his  authority,  consent,  or  knowledge,  and  did  not 
arise  from  want  of  due  care  or  caution  on  his  part.  St.  6  &  7  Vict, 
c.  96. 

The  rule  thus  made  positive  law  is  in  strict  accordance  with  those 
just  principles  which  ought  to  limit  criminal  liability  for  the  acts  of  an- 
other, and  which  have  been  recognized  in  the  decisions  of  this  court. 
Criminal  responsibility  on  the  part  of  the  principal,  for  the  act  of  his 
agent  or  servant  in  the  course  of  his  employment,  implies  some  degree 
of  moral  guilt  or  delinquency,  manifested  either  by  direct  participation 
in  or  assent  to  the  act,  or  by  want  of  proper  care  and  oversight,  or 
other  negligence  in  reference  to  the  business  which  he  has  thus  en- 
trusted to  another.  The  rule  of  civil  liability  is  broader,  and  the  prin- 
cipal must  respond   in  damages  for  the  default  or  tortious  act  of  the 

1  See  OH/e.  p  4.39,  n.  (1).  — Ed. 


SECT,  v.]  COMMONWEALTH   V.    MORGAN.  441 

agent  or  servant  in  his  employment,  although  he  had  no  knowledge  of 
it,  or  had  actually  forbidden  it  in  advance  and  exercised  due  care  to 
prevent  it. 

In  Commonwealth  v.  Nichols,  10  Met.  259,  it  was  held  that  a  shop- 
keeper is  criminally  liable  for  an  unlawful  sale  of  spirituous  liquor  in 
his  shop,  made  with  his  assent  by  a  servant  or  agent  employed  in  his 
business.  But  such  sale  is  only  prma  yacie  evidence  of  assent.  And 
it  was  said  that  "  if  a  sale  of  liquor  is  made  by  the  servant  without  the 
knowledge  of  the  master,  and  really  in  opposition  to  his  will,  and  in 
no  way  participated  in,  approved,  or  countenanced  by  him,  and  this  is 
clearly  shown  by  the  master,  he  ought  to  be  acquitted."  It  is  to  be  re- 
marked with  reference  to  this  case,  that  the  question  whether  the  sale 
was  really  against  the  defendant's  will  is  for  the  jury  upon  all  the 
evidence,  and  that  the  facts  that  the  profits  of  the  business  were  re- 
ceived by  the  defendant,  and  that  there  was  an  absence  of  proper  pre- 
cautions to  prevent  the  illegal  traffic,  would  justifv  an  inference  of  his 
approval. 

In  The  King  v.  Dixon,  3  M.  «&;  S.  11,  the  defendant  was  convicted 
of  selling  unwholesome  bread,  upon  proof  that  his  foreman  had  b}' 
mistake  put  too  much  alum  in  it.  There  was  no  evidence  that  the  mas- 
ter knew  of  the  quantity  used  in  this  instance.  But  Bayle}',  J.,  said, 
"  If  a  person  employed  a  servant  to  use  alum,  or  an}-  other  ingredient, 
the  unrestricted  use  of  which  was  noxious,  and  did  not  restrain  him  in 
the  use  of  it,  such  person  would  be  answerable  if  the  servant  used  it  to 
excess,  because  he  did  not  appl}'  the  proper  precaution  against  its 
misuse." 

It  is  the  duty  of  the  proprietor  of  a  public  paper,  which  may  be  used 
for  the  publication  of  improper  communications,  to  use  reasonable 
caution  in  the  conduct  of  his  business,  that  no  libels  be  published.  He 
is  civilly  responsible  for  the  wrong,  to  the  extent  indicated  ;  and  he  is 
criminall}'  liable,  unless  the  unlawful  publication  was  made  under  such 
circumstances  as  to  negative  any  presumption  of  privit}',  or  connivance, 
or  want  of  ordinary  precaution  on  his  part  to  prevent  it.  3  Greenl. 
Ev.  §§  170,  178. 

We  are  of  opinion  that  the  offer  of  the  defendant  did  not  go  far 
enough,  in  view  of  the  law  thus  stated,  to'  rebut  the  presumption  of 
guilt  arising  from  the  publication  of  this  libel.  The  facts  offered  may 
be  true,  and  yet  entirely  consistent  with  the  fact  that  the  conduct  of 
the  newspaper  was  under  his  actual  direction  and  charge,  at  a  time 
when  he  was  neither  absent  from  home  nor  confined  by  sickness,  and 
when  his  want  of  knowledge  would  necessarily  imply  criminal  neglect 
to  exercise  proper  care  and  supervision  over  the  subordinates  in  his 
employ.  It  is  consistent  also  with  such  information  in  this  instance,  in 
regard  to  the  proposed  libellous  attack,  as  should  have  put  him  on 
inquiry  ;  and  with  the  fact  that  the  general  management  of  tlie  paper 
was  of  such  a  character  as  to  justify  the  inference  that  the  defendant 
approved  of  or  connived   at  publications  of  this  description,  and  had 


442  PEOPLE   V.   ROBY.  ][CHAP.  II. 

given  his  general  assent  to  them.  Under  such  circumstances,  the  de- 
fendant ought  not  to  be  permitted  to  escape  on  the  plea  that  he  had 
not  seen  the  particular  article  and  did  not  know  of  its  publication. 

As  to  the  evidence  offered  of  a  subsequent  apolog}'  and  retraction, 
the  answer  is  that  it  is  onlj'  a  matter  in  mitigation  of  sentence.  The 
crime  is  not  purged  by  it.  .  .  .  Exceptions  overruled. 


THE  PEOPLE  V.   ROBY. 
Supreme  Court  of  Michigan.     1884. 

[52  Mick.  577.] 

Complaint  for  keeping  saloon  open  on  Sunday.    Conviction  affirmed. 

Jacob  J.   Van  Hiper,  Attorne3'-General,  for  the  People. 

Jacob  V.  Rogers,  for  respondent  appellant. 

CooLEY,  C.  J.  The  respondent,  who  is  keeper  of  a  hotel  in  the 
village  of  Plainwell,  in  which  there  is  a  bar  for  the  sale  of  spirituous 
and  malt  liquors,  was  prosecuted  and  convicted  for  not  keeping  his 
bar  closed  on  Sunday,  May  6,  1883.  The  evidence  was  that  on  the 
morning  of  that  day  the  clerk  of  the  hotel  was  in  the  bar-room  and  had 
a  servant  with  him  scrubbing  it  out  when  a  person  came  in  from  the 
street.  He  appeared  to  be  known  to  the  clerk,  who  told  him  he 
did  not  want  him  there  Sundays.  The  man  said  he  wanted  some 
whisky.  The  clerk  told  him  he  must  get  his  whisky  Saturday  night. 
After  some  more  words  between  them  the  clerk  told  him  if  he  was 
going  to  get  the  whisky  to  get  it  and  get  out  as  soon  as  he  could. 
He  got  the  whisky,  handed  pay  for  it  to  the  servant,  and  went  off. 
The  respondent  was  not  at  the  time  present.  The  clerk  testifies  that 
he  was  somewhere  about  the  house,  but  he  thought  he  was  not  up  yet ; 
the  servant  says  he  was  about  there  shortl}'  afterwards.  There  was 
no  evidence  in  the  case  to  show  that  respondent  assented  to  the  open- 
ing of  the  bar  on  that  da}',  or  expected  or  desired  that  it  should  be 
opened  ;  neither  was  there  any  evidence  to  the  contrarj'.  He  was  not 
a  witness  on  his  own  behalf. 

The  case  comes  to  this  court  on  writ  of  error,  and  the  only  question 
of  importance  is  whether  there  was  any  evidence  to  be  submitted  to 
the  jury. 

The  statute  under  which  the  conviction  was  had  provides  that  "  all 
saloons,  restaurants,  bars,  in  taverns  or  elsewhere,  and  all  other  places 
where  an}-  of  the  liquors,"  etc.  "  may  be  sold,  or  kept  for  sale,  either 
at  wholesale  or  retail,  shall  be  closed  on  the  first  day  of  the  week, 
commonly  called  Sunday,"  etc.  How.  St.  §  2274  ;  Public  Acts,  1881, 
p.  3.")0. 


SECT,  v.]  PEOPLE   V.    KOBY.  443 

It  will  be  observed  that  the  reqiiirement  that  the  saloons  and  other 
places  mentioned  shall  be  closed  is  positive.  The  next  section  of  the 
statute  provides  that  any  person  who  shall  violate  this,  among  other 
provisions,  shall  be  deemed  guilt}'  of  a  misdemeanor,  and  shall  be 
punished  as  therein  prescribed.  In  terms,  then,  the  penalties  of  the 
statute  are  denounced  against  the  person  whose  saloon  or  other  place 
for  the  sale  of  intoxicating  drinks  is  not  kept  closed,  and  no  other  fact 
is  necessar}'  to  complete  the  offence- 
It  is  contended,  nevertheless,  that  to  constitute  an  offence  under  the 
section  referred  to,  there  must  be  some  evidence  tending  to  show  an 
intent  on  the  part  of  the  respondent  to  violate  it ;  and  People  v.  Parks, 
49  Mich.  333,  which  was  a  prosecution  under  another  section  of  the 
same  statute,  is  cited  as  authorit}'.  It  should  be  said  of  that  case  that 
the  facts  are  not  fully  given  in  the  report,  and  that  there  was  positive 
evidence  in  the  case  to  negative  the  intent  in  the  respondent  that  the 
criminal  act  should  be  committed.  But  the  case  is  plainly  distinguish- 
able from  this.  The  section  under  which  Parks  was  prosecuted  makes 
not  only  the  proprietor,  but  his  clerks,  agents,  etc.,  individually  liable 
for  the  conduct  prohibited,  and  imposes  upon  them  severally  the  duty 
to  abstain  from  it.  The  section  under  which  Roby  is  prosecuted  makes 
the  crime  consist,  not  in  the  affirmative  act  of  any  person,  but  in  the 
negative  conduct  of  failing  to  keep  the  saloon,  etc.,  closed. 

I  agree  that  as  a  rule  there  can  be  no  crime  without  a  criminal 
intent ;  but  this  is  not  by  any  means  a  universal  rule.  One  may  be 
guilt}'  of  the  high  crime  of  manslaughter  when  his  only  fault  is  gross 
negligence  ;  and  there  are  many  other  cases  where  mere  neglect  may 
be  highh'  criminal.  Many  statutes  which  are  in  the  nature  of  police 
regulations,  as  this  is,  impose  criminal  penalties  irrespective  of  any 
intent  to  violate  them ;  the  purpose  being  to  require  a  degree  of 
diligence  for  the  protection  of  the  public  which  shall  render  violation 
impossible.  Thus,  in  Massachusetts  a  person  may  be  convicted  of 
the  crime  of  selling  intoxicating  liquor  as  a  beverage,  though  he  did 
not  know  it  to  be  intoxicating,  Commonwealth  y.  Boynton,  2  Allen, 
160 ;  and  of  the  offence  of  selling  adulterated  milk,  though  he  was 
ignorant  of  its  being  adulterated.  Commonwealth  v.  Farren,  9  Allen, 
489  ;  Commonwealth  v.  Holbrook,  10  Allen,  200  ;  Commonwealth  v. 
Waite,  11  Allen,  264;  Commonwealth  v.  Smith,  103  Mass.  444.  See 
State  V.  Smith,  10  R.  I.  258.  In  Missouri  a  magistrate  may  be  liable 
to  the  penalt}'  for  performing  the  marriage  ceremony  for  minors  with- 
out consent  of  parents  or  guardians,  though  he  may  suppose  them 
to  be  of  the  proper  age.  Beckham  v.  Nacke,  56  Mo.  546.  Where  the 
kiUing  and  sale  of  a  calf  under  a  specified  age  is  prohibited,  there  ma}^ 
be  a  conviction  though  the  party  was  ignorant  of  the  animal's  age. 
Commonwealth  v.  Raymond,  97  Mass.  567.  See  The  King  v.  Dixon, 
3  M.  &  S.  11.  In  State  v.  Steamboat  Co.,  13  Md.  181,  a  common 
carrier  was  held  liable  to  a  statutory  penalty  for  transporting  a  slave 
on  its  steamboat,  though  the  persons  in  charge  of  its  business  had  no 


444  PEOPLE   V.   KOBY.  fcHAP.  II. 

knowledge  of  the  fact.  A  ease  determined  on  the  same  principle  is 
Queen  v.  Bishop,  5  Q.  B.  Div.  259.  If  one's  business  is  the  sale  of 
liquors,  a  sale  made  b}'  his  agent  in  violation  of  law  is  prima  facie  by 
his  authoritj^,  Commonwealth  v.  Nichols,  10  Met.  259  ;  and  in  Illinois 
the  principal  is  held  liable,  though  the  sale  b}'  his  agent  was  in  viola- 
tion of  instructions.  Noecker  v.  People,  91  111.  494.  In  Connecticut 
it  lias  been  held  no  defence  in  a  prosecution  for  selling  intoxicating 
liquor  to  a  common  drunkard  that  the  seller  did  not  know  him  to  be 
such.  Barnes  v.  State,  19  Conn.  398.  It  was  held  in  Faulks  v.  People, 
39  Mich.  200,  under  a  former  statute,  that  one  should  not  be  con- 
victed of  the  offence  of  selling  liquors  to  a  minor  who  had  reason  to 
believe  and  did  believe  he  was  of  age  ;  but  I  doubt  if  we  ought  so  to 
hold  under  the  statute  of  1881,  the  purpose  of  which  ver}"  plainly'  is,  as 
I  think,  to  compel  every  person  who  engages  in  the  sale  of  intoxicating 
drinks  to  keep  within  the  statute  at  his  peril.  There  are  man}'  cases 
in  which  it  has  been  held  under  similar  statutes  that  it  was  no  defence 
that  the  seller  did  not  know  or  suppose  the  purchaser  to  be  a  minor ; 
State  V.  Hartflel,  24  Wis.  60  ;  McCutcheou  v.  People,  69  111.  601 ;  Far- 
mer u.  People,  77  111.  322  ;  Ulrich  v.  Commonwealth,  6  Bush,  400  ;  State 
V.  Cain,  9  W.  Va.  559  ;  Commonwealth  v.  Emmons,  98  Mass.  6  ;  Red- 
mond V.  State,  36  Ark.  58  ;  and  in  Commonwealth  v.  Finnegau,  124 
Mass.  324,  the  seller  was  held  liable,  though  the  minor  had  deceived 
him  b}'  falsel}"  pretending  he  was  sent  for  the  liquor  by  another  person. 
So  a  person  has  been  held  liable  to  a  penalty  for  keeping  naphtha  for  sale 
under  an  assumed  name,  without  guilty  knowledge  ;  the  statute  not  mak- 
ing such  knowledge  an  ingredient  of  the  offence.  Commonwealth  v. 
Wentworth,  118  Mass.  441.  Other  cases  might  be  cited,  and  there  is 
nothing  anomalous  in  these.  A  person  ma}-  be  criminally  liable  for 
adultery  with  a  woman  he  did  not  know  to  be  married,  Fox  v.  State, 
3  Tex.  App.  329  ;  or  for  the  carnal  knowledge  of  a  female  under  ten 
years  of  age  though  he  believed  her  to  be  older.  Queen  v.  Prince, 
L.  R.  2  Cr.  Cas.  154 ;  State  y.  Newton,  44  la.  45.  And  other  similar 
cases  might  be  instanced. 

If  intent  were  necessary  to  be  found  I  should  be  of  opinion  there  was 
enough  in  the  case  to  warrant  its  submission  to  the  jury.  The  bar  was 
opened  on  Sunda}'  by  respondent's  servants  and  on  his  business  while 
he  was  about  the  premises.  The  purpose  for  which  it  was  opened  was 
immaterial ;  the  offence  was  committed  by  opening  it  for  cleaning  as 
much  as  it  would  have  been  by  opening  it  for  the  sale  of  liquors. 
People  V.  Waldvogel,  49  Mich.  337.  But  the  statute  requires  the 
proprietor  at  his  peril  to  keep  the  bar  closed.  The  purpose  in  doing  so 
is  that  persons  shall  not  be  there  within  the  reach  of  temptation. 
This  respondent  did  not  keep  his  bar  closed,  and  he  has  therefore  dis- 
obe3'ed  the  law.  And  he  has  not  only  disobe3ed  the  law,  but  the  evil 
which  the  law  intends  to  guard  against  has  resulted  ;  that  is  to  say, 
there  has  been,  either  with  or  without  his  assent,  -^  it  is  immaterial 


SECT,  v.]  COMMONWEALTH    V.    BRIANT.  445 

which,  — a  sale  of  intoxicating  liquors  to  a  person  who  took  advantage 
of  the  bar  being  open  to  enter  it. 

I  think  the  Circuit  Court  should  proceed  to  judgment. 

Sherwood  and  Champlin,  JJ.,  concurred.^ 

Campbell,  J.  In  this  case  the  charge  of  the  judge  was  properl}' 
guarded  as  to  the  necessity  of  showing  complicit}'  of  respondent  in  the 
act  charged  against  him,  and  as  to  the  presumption  of  his  innocence. 
But  in  my  opinion  the  rules  he  laid  down  were  inconsistent  with  the 
sufflcienc}'  of  the  facts  to  sustain  a  conviction.  I  think  this  conviction 
can  only  be  maintained  on  the  principle  that  an  agent  appointed  for 
a  confessedly  legal  purpose  is  presumed  to  be  authorized  to  act 
illegally.  I  can  see  no  reason  why  such  presumption  should  be  lawful 
in  one  case  and  not  in  another.  In  all  crimes  the  presumption  of 
innocence  must  be  the  same.  The  charge  here  is  distinctly  criminal, 
and  while  tlie  offence  is  one  of  importance  to  the  public  order,  I  think 
that  tlie  decisions  which  set  up  exceptional  rules  of  evidence  to  prove 
it  are  of  dangerous  tendency  and  would  not  be  safe  precedents. 


COMMONWEALTH  v.   BRIANT. 
Supreme  Judicial  Court  of  Massachusetts.     1886. 

[142  Mass.  463.] 

Holmes,  J.  This  is  a  complaint  for  unlawfully  selling  intoxicating 
liquors  to  a  minor.  The  court  assumed  that  the  case  was  governed  by 
Commonwealth  v.  AVachendorf,  1-il  Mass.  270  ;  and  instructed  the  jury 
that  a  sale  by  the  defendant's  bar-tender  might  be  explained  b}'  show- 
ing that  it  was  not  authorized  by  the  master,  or  was  done  in  violation 
of  his  orders  and  against  his  will. 

On  the  question  of  authority,  the  defendant  asked  for  a  ruling  that 
"  agency  for  any  other  purpose  will  not  warrant  a  presumption  or  in- 
ference of  agency  illegall}'  to  sell  liquor."  The  -court  refused  the  rul- 
ing ;  and  instructed  the  jur}',  in  substance,  that  a  sale  of  intoxicating 
liquors  b}'  a  bar-tender  in  his  master's  shop,  and  in  the  regular  course 
of  his  master's  lawful  business,  is  prima  facie  a  sale  by  the  master, 
although  the  sale  is  an  illegal  sale,  but  that  such  a  sale  may  be  ex- 
plained bj'  showing  that  it  was  not  authorized.  Even  if  the  ruling  re- 
quested was  wrong,  we  think  the  instruction  given  went  too  far  in  an 
opposite  direction.  For,  although  we  should  admit  that  a  jury  might 
be  warranted  in  inferring  that  such  a  sale  was  authorized,  it  would  not 
follow  that  a  court  could  rule  that  there  is  a  presumption  of  fact  that 
it  was  so,  which  is  the  purport  of  the  instruction  fairly  construed.     The 

1  Ace. :  The  State  v.  Kittelle,  /lO  N.  Cur.  560  (1892).  — Ed. 


446  COMMONWEALTH    V.    BRIANT.  [CHAP.  II. 

proposition  that  tliere  is  evidence  for  tlie  jury  to  consider,  is  not  identical 
with  the  proposition  that  the  evidence,  if  believed,  raises  a  presumption 
of  fact.  The  proposition  that  there  is  evidence  to  be  considered  im- 
ports that  there  may  be  a  presumption  of  fact.  But  generallj'  it  must 
be  left  to  the  jury  to  sa^'  wlietlier  there  is  one,  and  in  many  cases  that 
is  the  main  question  which  they  have  to  decide. 

The  facts  that  a  man  employs  a  servant  to  conduct  a  business  ex- 
pressly authorized  by  statute,  and  that  the  servant  makes  the  unlawful 
sale  in  the  course  of  it,  do  not  necessarily  overcome  the  presumption 
of  innocence  merel}'  because  the  business  is  liquor  selling,  and  may  be 
carried  be3'ond  the  statutorj-  limits.  See  Commonwealth  v.  Putnam, 
4  Gray,  16  ;  Commonwealth  v.  Dunbar,  9  Gray,  298. 

It  is  true  that  a  master  would  be  liable  civilly  for  such  a  sale  as  sup- 
posed in  the  instruction,  but  his  civil  liability  exists  even  when  he  pro- 
hibited the  sale,  and  therefore  it  does  not  stand  upon  a  presumption 
that  he  authorized  the  sale,  but  upon  the  general  ground  for  a  master's 
liability  for  the  unauthorized  torts  of  his  servants,  wliatever  that  may 
be.  George  v.  Gobey,  128  Mass.  289;  Roberge  v.  Burnham,  124 
Mass.  277;  Pub.  Sts.  c.  100,  §  24.  See  Byington  v.  Simpson,  134 
Mass.   169,  170. 

Commonwealth  v.  Holmes,  119  Mass.  195,  cited  for  the  prosecution, 
went  no  farther  than  to  decide  that  evidence  that  the  defendant's  son 
and  clerk  sold  intoxicating  liquors  in  a  public  house  kept  by  the  de- 
fendant was  evidence  of  a  sale  b}'  the  defendant,  sufficient  to  be  sub- 
mitted to  a  jur}'.  See  also  Commonwealth  v.  Edds,  14  Gra}',  406. 
Nothing  was  said  as  to  a  presumption  of  fact.  The  evidence,  too, 
was  stronger  than  in  the  case  at  bar  ;  for  there  the  defendant  set  up  no 
license,  any  sale  was  unlawful,  and  the  question  was  whether  the  de- 
fendant gave  authority  to  his  clerk  to  sell  at  all.  It  might  well  be 
thought  that  the  clerk  would  hardly  undertake  to  sell  in  the  way  of 
business  in  his  employer's  house  without  some  authority.  But  it  is 
obviously  much  more  likel}'  that  a  servant  emplo3'ed  to  make  lawful 
sales  should  occasionally  go  beyond  his  authority,  which  he  might  do 
by  mistaking  a  minor  for  an  adult,  than  that  he  should  go  into  a  wholly 
unauthorized  business*. 

Commonwealth  v.  Nichols,  10  Met.  259,  probably  suggested  the  rul- 
ing of  the  court,  and  is  perhaps  a  little  nearer  the  case  at  bar  than 
Commonwealth  v.  Holmes,  as  the  defendant  seems  to  have  sold  liquors 
at  wholesale,  and  to  have  employed  his  clerk  in  that  business,  although 
not  licensed  to  sell  at  retail.  The  court,  in  sustaining  the  defendant's 
exceptions,  said  that  a  sale  at  retail  by  the  clerk  was  ' '  onl}'  prima 
facie  evidence  "  of  a  sale  by  the  master.  It  hardl}^  said,  and  could 
not  have  decided,  that  such  a  sale  was  prima  facie  a  sale  bj'  the 
master,  or  that  it  raised  a  presumption  of  fact.  Moreover,  if  it  were 
held  that  there  was  such  a  presumption  of  fact  in  cases  like  Common- 
wealth V.  Holmes  and  Commonwealth  v.  Nichols,  it  would  not  follow 
that  there  was  the  same  presumption  in  the  present  case,  still  less  that 


SECT.  VI.]  FAIKLIE   V.    HASTINGS.  447 

It  was  so  plain  that  the  jury  could  be  instructed  to  act  on  it.    Such  pre- 
sumptions are  questions  of  fact  and  of  degree. 

Exceptions  sustained.^ 

J.  R.  Thayer,  for  the  defendant. 

E.  J.  SJterman^  Attorney-General,  for  the  Commonwealth. 


SECTION   VI. 

Admissions. 


FAIRLIE  V.   HASTINGS. 

Chancery.     1803. 

[10  Ves.  Jr.  123.] 

The  Master  of  the  Rolls.-  The  subject  of  this  cause  is  a  loan 
of  money  b}'  the  late  plaintiff  Maha  Rajah  Nobkissen  to  the  defendant. 
As  it  is  not  by  bill  in  equity  that  mone}"  lent  is  to  be  recovered,  it  is 
incumbent  upon  the  plaintiff  to  state,  and  to  prove,  some  ground  for 
coming  into  this  court  for  the  payment,  or  the  means  of  obtaining  pay- 
ment of  his  demand.  The  question  of  jurisdiction  must  depend  upon 
the  allegations  of  the  bill ;  which  states,  that  the  defendant  applied 
to  the  plaintiff  for  the  loan  of  three  lacks  of  rupees  upon  the  securit}'  of 
the  defendant's  bond  ;  that  the  plaintiff  agreed  to  advance  that  sum 
by  instalments ;  that  a  bond  was  executed,  which  it  was  agreed  should 
remain  with  Caunto  Baboo,  an  agent  of  the  defendant,  until  the  whole 
money  should  be  advanced,  and  then  should  be  delivered  to  the  plain- 
tiff; that  the  money  was  advanced,  but  the  plaintiff  never  received 
the  bond ;  Caunto  Baboo  in  answer  to  his  repeated  applications  at 
length  informing  him,  that  it  had  been  delivered  up  to  the  defendant. 

1  "  The  evidence  was,  that  a  lottery  office  was  kept  in  a  house  rented  by  Gillespie, 
.  .  .  under  a  sign  in  the  name  of  Gillespie's  lottery  office ;  that  Gregory,  a  young  lad, 
acted  as  his  servant  or  agent  in  that  office,  and  sold  the  ticket  .  .  .  indorsed  in  the 
name  of  Gillespie ;  .  .  .  tliat  Gillespie  occasionally  visited  Philadelphia.  I  did  not 
instruct  the  jury,  that  Gillespie  was  criminally  answerable  for  the  act  of  his  agent  or 
servant,  but  I  left  them  to  decide,  whether,  from  the  whole  body  of  the  evidence,  Gil- 
lespie was  concerned  in  the  sale  of  this  ticket.  The  house  his ;  the  boy  conducting 
business  for  him  as  a  lottery  broker,  under  his  sign ;  selling  this  very  ticket  as  his 
agent,  and  in  his  name.  These  were  circumstances,  from  which  the  jury  might  infer 
his  participation  in  the  sale  of  this  ticket ;  more  especially  as,  if  the  boy  had  been  era- 
ployed  as  his  agent  to  sell  tickets  authorized  by  the  laws  of  this  State,  and  not  tickets 
prohibited,  a  production  of  his  books  would  establish  his  innocence.  That  criminality, 
even  in  acts  of  the  blackest  dye,  might  be  made  out  by  circumstantial  evidence." 
Per  Duncan,  J.,  in  Commonwealth  v.  Gillespie,  7  S.  &  R.  469,  477  (1822).  — Ed. 

2  Sir  William  Grant.  The  reporter's  statement  is  omitted.  The  bill  prayed 
tliat  the  bond  might  be  delivered  up,  or  the  money  be  paid  with  interest.  —  Ed. 


448  FAIRLIE   V.    HASTINGS.  [CHAP.  11. 

In  support  of  this  statement  the  plaintiff  has  not  read,  and  could  not 
read,  any  part  of  the  answer.  But  the  plaintifif  has  gone  into  evidence 
of  declarations  by  Gobindee  Baboo  and  Caunto  Baboo,  and  the 
question  is  whether  these  declarations  can  amount  to  proof  of  such 
facts  as  are  alleged  by  the  bill.  Upon  that  question  my  opinion  is, 
that  these  declarations  do  not  come  within  the  principle,  upon  which 
they  are  supposed  to  be  admissible.  As  a  general  proposition,  what  one 
man  says,  not  upon  oath,  cannot  be  evidence  against  another  man. 
The  exception  must  arise  out  of  some  peculiarity  of  situation,  coupled 
with  the  declarations  made  by  one.  An  agent  may  undoubtedly,  within 
the  scope  of  his  authoritj',  bind  his  principal,  by  his  agreement ;  and 
in  man}'  cases  b}'  his  acts.  What  the  agent  has  said  may  be  what  con- 
stitutes the  agreement  of  the  principal :  or  the  representations  or  state- 
ments made  ma}'  be  the  foundation  of,  or  the  inducement  to,  the 
agreement.  Therefore,  if  writing  is  not  necessary  by  law,  evidence 
must  be  admitted  to  prove  the  agent  did  make  that  statement  or  repre 
sentation.  So,  with  regard  to  acts  done,  the  words  with  which  those 
acts  are  accompanied  frequently'  tend  to  determine  their  quality.  The 
part}',  therefore,  to  be  bound  by  the  act,  must  be  affected  by  the  words. 
But  except  in  one  or  the  other  of  those  ways  I  do  not  know,  how  what 
is  said  by  an  agent  can  be  evidence  against  his  principal.  The  mere 
assertion  of  a  fact  cannot  amount  to  proof  of  it ;  though  it  may  have 
some  relation  to  the  business  in  which  the  person  making  that  asser- 
tion was  employed  as  agent.  For  instance,  if  it  was  a  material  fact 
that  there  was  the  bond  of  the  defendant  in  the  hands  of  Caunto 
Baboo,  that  fact  would  not  be  proved  by  the  assertion  that  Gobindee- 
Baboo,  supposing  him  an  agent,  had  said,  there  was  :  for  that  is  no 
fact,  that  is,  no  part  of  any  agreement  which  Gobindee  Baboo  is  mak- 
ing, or  of  any  statement  he  is  making,  as  inducement  to  an  agree- 
ment. Tt  is  mere  narration  ;  communication  to  the  witness  in  the 
course  of  conversation  ;  and  therefore  could  not  be  evidence  of  the 
existence  of  the  fact. 

The  admission  of  an  agent  cannot  be  assimilated  to  the  admission  of 
the  principal.  A  party  is  bound  by  his  own  admission,  and  is  not 
permitted  to  contradict  it.  But  it  is  impossible  to  say,  a  man  is  pre- 
cluded from  questioning  or  contradicting  anything  any  person  has  as- 
serted as  to  him,  as  to  his  conduct  or  his  agreement,  merely  because 
that  person  has  been  an  agent  of  his.  If  any  fact,  material  to  the  in- 
terest of  either  party,  rests  in  the  knowledge  of  an  agent,  it  is  to  be 
proved  by  his  testimony,  not  by  his  mere  assertion.  Lord  Kenyon 
carried  this  so  far  as  to  refuse  to  permit  a  letter  by  an  agent  to  be  read 
to  prove  an  agreement  by  the  principal ;  holding  that  the  agent  him- 
self must  be  examined.  Maesters  v.  Abram,  1  f^sp.  375,  If  the  agree- 
ment was  contained  in  the  letter,  I  should  have  thought  it  sufficient  to 
have  proved  that  letter  was  written  by  the  agent ;  but,  if  the  letter 
was  offered  as  proof  of  the  contents  of  a  pre-existing  agreement,  then 
it  was  properly  rejected.     This  doctrine  was  discussed  incidentally  in 


SECT.  VI.]  FAIKLIE   V.    HASTINGS.  449 

Bauerman  v.  Radenius,  7  T.  R.  663  ;  and  in  that  case  there  is  a  refer- 
ence to  another,  Biggs  v.  Lawrence,  3  T.  R.  454,  in  which  Mr.  Justice 
Buller  held,  that  a  receipt  given  by  an  agent  for  goods,  directed  to  be 
delivered  to  him,  might  be  read  in  evidence  against  the  principal. 
The  counsel  in  Bauerman  y.  Radenius  state,  that  the  contrary-  had  been 
frequently  since  held  by  Lord  Kenyon  at  JVisi  Prius,  without  its  hav- 
ing ever  been  questioned.  That  statement  does  not  appear  to  have 
been  denied  upon  the  other  side  ;  and  seems  to  have  been  acquiesced 
in  by  Lord  Kenyon;  who  said,  "  That  was  not  the  point  upon  which 
the  case  was  argued  or  determined  ;  "  meaning  the  point,  that  such  a 
receipt  could  be  admitted  in  evidence. 

It  will  be  found,  however,  that  this  question  can  hardly  be  said  to 
arise  in  this  case ;  when  it  is  considered,  what  the  concern  of  Caunto 
Baboo  in  this  transaction  was,  and  what  are  the  facts,  in  proof  of  which 
his  declaration  was  offered.  Caunto  Baboo  is  stated  to  have  been  in 
the  employment  of  the  defendant.  One  of  the  witnesses  says,  he  had 
the  general  management  of  his  pecuniary  concerns.  But  of  this  par- 
ticular transaction  he  does  not  appear,  either  by  the  bill  or  the  witness, 
to  have  had  the  management.  Upon  the  whole  of  the  statement  and 
evidence  it  does  not  appear,  that  Caunto  Baboo  was  concerned  in  the 
negotiation  of  the  loan ;  that  he  was  employed  as  the  agent  for  this 
purpose.  The  statement  of  the  bill  represents  the  defendant  himself 
to  have  made  the  agreement ;  therefore  any  representation  of  Caunto 
Baboo  relative  to  an  agreement,  not  stated  to  have  been  made  by  him, 
would  not  be  the  statement  of  an  agent ;  supposing  such  statement 
was  to  be  admitted  in  evidence.  The  plaintiff  fails  first  in  showing, 
Caunto  Baboo  was  the  agent  of  the  defendant.  In  this  case  such  a 
fact  as  Caunto  Baboo  is  represented  to  have  stated,  is  matter,  not  of 
admission,  but  of  testimony.  A  man  cannot  admit  what  another  has 
done,  or  has  agreed  to  do  :  but  he  must  prove  it.  When  put  upon  the 
proof,  that  the  defendant  made  the  agreement,  it  is  absurd  to  say, 
Caunto  Baboo  admitted  he  made  it.  In  truth  he  does  not  admit  that 
the  defendant  made  it.  But,  suppose  Caunto  Baboo  distinctly  proved 
the  agent  of  the  defendant,  and  that  he  said,  he  knew  the  defendant 
did  make  the  agreement  for  this  loan,  and  did  promise  and  undertake  to 
give  a  bond  for  the  mone}',  and  did  execute  a  bond,  but  gave  the  bond, 
not  to  the  plaintiff,  but  to  the  witness,  and  he  gave  it  back  to  the  de- 
fendant, who  undertook  to  calculate  the  interest,  and  to  give  a  bond  for 
the  whole  ;  all  this  would  be  no  evidence  whatsoever  of  what  the  defend- 
ant had  agreed  to  do  or  had  done,  or  omitted  to  do ;  and  without 
evidence  of  his  agreement,  or  his  acts,  or  his  breach  of  agreement,  it  is 
utterly-  impossible  to  support  this  bill. 

The  bill  was  dismissed. 


29 


450  ANDERSON   V.    SANDERSON.  [CHAP.  IL 


PETO  V.   HAGUE. 
Nisi  Prius.     1804. 

[5  Esp.  134.] 

Debt  on  statute  to  recover  the  penalty'  for  selling  coals,  short  of 
measure,  the  coals  having  been  sold  as  Pool  measure. 

The  plaintiff  called  the  coal-meter  to  prove  the  transaction,  and  the 
fraud  practised  in  the  sale  of  the  coals.  The  defendant  was  a  coal- 
merchant,  but  his  business  was  conducted  by  one  Peely,  who  was  his 
nephew.  The  witness,  in  giving  his  evidence,  was  proceeding  to  state 
a  conversation  between  him  and  Peely  ;  which  was,  that  while  the  coals 
were  at  the  wharf,  he  asked  Peely,  whether  the  coals  then  lying  in  the 
punt  were  to  be  sold  b}'  wharf  or  Pool  measure  ? 

Garrow,  of  counsel  for  the  defendant,  objected,  that  what  was  said 
bj'  Peely  was  not  admissible  evidence  to  affect  the  defendant.  That 
Peeh'  should  himself  be  called  ;  for,  taking  him  to  be  even  the  agent  of 
the  defendant,  his  declaration  could  not  be  evidence,  although  his  acts 
might  be  so. 

Lord  Ellenborough  ruled  that  it  was  evidence  ;  he  said,  that  Peely 
appeared  to  be  the  manager  and  conductor  of  the  defendant's  business : 
what  he  might  have  said  respecting  a  former  sale  made  by  the  defend- 
ant, or  on  another  occasion,  would  not  be  evidence  to  affect  his  master ; 
but  what  he  said  respecting  a  sale  of  coals,  then  about  to  take  place, 
and  respecting  the  disposition  of  the  coals  then  lying  at  the  wharf, 
which  were  the  object  of  sale,  was  in  the  course  of  witness's  emplo}'- 
ment  for  the  defendant,  and  was  evidence  to  affect  his  master.  He 
accordingly  admitted  it. 

Verdict  for  the  plaintiff  for  one  penalty. 

Erskine  and  Marryat,  for  the  plaintiff. 

Garrow^  for  the  defendant. 


ANDERSON  v.   SANDERSON. 
Nisi  Prius.     1817. 

IHolt,  N.  P.  .591.] 

Assumpsit.  The  wife  of  the  defendant  had  bought  of  the  plaintiff 
certain  goods,  which  the  defendant  hawked  about  the  country.  All  the 
articles  had  been  obtained  previous  to  the  3'ear  1810. 

The  defendant  pleaded  the  general  issue,  and  the  statute  of  limita- 
tions.    Man}'  acknowledgments  of  the  wife  were  offered  in  evidence 


SECT.  VI.]  CLIFFORD   V.   BURTON.  451 

for  the  purpose  of  taking  the  case  out  of  the  statute.^  On  the  part  of 
the  defendant  it  was  objected,  that  the  wife  could  only  be  considered 
as  the  agent  of  her  husband  ;  and  that  the  admissions  of  the  agent 
could  only  bind  the  principal,  if  made  at  the  time  when  the  goods 
were  ordered  or  received  by  him.  That,  since  the  last  receipt  of 
goods  was  more  than  six  years  before  the  action  was  brought,  the  only 
admission  which,  upon  the  principle  above  stated,  could  be  given  in 
evidence,  was  likewise  before  that  time  ;  and,  therefore,  that  there 
could  be  no  authority  in  the  wife  to  make  an  admission  which  would 
take  the  case  out  of  the  statute. 

Richards,  C.  B.  The  wife  was  the  onl}'  person  accustomed  to  pur- 
chase goods  at  all.  She  was,  therefore,  the  onl\-  proper  person  to  ask 
for  mone}-,  and  to  make  admissions  on  the  subject  as  to  the  sum  due.^ 

Verdict  for  plaintiff. 

Starkie^  for  plaintiff. 

Williams  and  Gilby,  for  defendant. 


CLIFFORD  V.   BURTON. 
Common  Pleas.  1823. 

[1  Bing.  199.] 

In  this  cause,  which  was  tried  before  the  Lord  Chief  Baron  at  the 
last  Hertfordshire  assizes,  the  plaintiff,  in  order  to  substantiate  a 
demand  for  goods  sold  and  delivered  at  the  defendant's  shop,  proved 
an  admission  made  by  the  defendant's  wife,  who  served  in  his  shop, 
and  carried  on  the  business  of  it  in  his  absence.  The  witness  applied 
to  her  for  £28  16s. ;  and  the  admission  consisted  in  her  saying,  she 
would  pa}'  it  if  the  plaintiff  would  allow  £10,  which  she  claimed,  and 
give  a  receipt  in  full. 

It  was  objected,  that  the  circumstance  of  the  wife's  serving  in  the 
shop  was  not  evidence  of  such  a  general  agenc}'  as  would  authorize  her 
thus  to  settle  an  account,  or  the  court  to  receive  evidence  of  such  a 
transaction,  which  was  altogether  separate  and  distinct  from  her  ser- 
vice in  the  shop. 

^  In  s.  c,  2  Starkie,  204,  it  is  said  :  "It  was  proved  that  the  defendant  himself  was 
usually  occupied  in  travelling  about  the  country,  for  the  purpose  of  vending  his  cakes 
and  confectionery,  and  that  his  wife  conducted  the  business  at  home,  and  had  acted 
as  her  husband's  agent  in  buying  and  selling  articles  in  the  way  of  business ;  that 
she  usually  purchased  the  flour  which  they  used ;  the  present  demand  was  for  flour 
to  be  used  in  the  course  of  their  trade ;  under  these  circumstances,  it  was  contended 
on  the  part  of  the  plaintiff,  that  the  husband  had  constituted  his  wife  his  agent  for 
the  management  of  his  business,  and  that  her  admission  was  suflicient  to  take  the 
case  out  of  the  statute  of  limitations."  —  Ed. 

2  Ace:  Palethorp  v.  Furnish,  2  Esp.  511,  n.  (a)  (1783)  ;  Burt  v.  Palmer,  5  Esp 
145  (1S04);  Gregory  i>.  Parker,  1  Camp.  394  (1808).— Ed. 


452  GARTH   V.    HOWARD    AND    FLEMING.  [CHAP.  II. 

The  evidence  having  been  received,  and  a  verdict  found  for  the 
plaintiff, 

Taddy,  Serjt.,  now  moved  for  a  new  trial  on  the  above  objection  to 
the  wife's  evidence :  he  contended,  that  admissions  by  her  in  the  char- 
acter of  agent  must  be  confined  to  the  transactions  in  which  she  was 
immediately  employed  ;  that  she  had  no  authority  to  settle  an  account 
except  as  part  of  the  res  gestae  upon  the  delivery  of  goods  in  the  shop ; 
and  that  evidence  of  admissions  made  upon  a  separate  application  for 
payment  ought  to  have  been  excluded.  In  Emmerson  v.  Blonden,  1 
Esp.  142,  and  in  1  Str.  527,  Anon.,  the  wife  was  acting  within  the  scope 
of  her  authority,  and  what  she  said  constituted  a  part  of  the  authorized 
transactions.  But  a  principal  is  not  bound  by  the  representations  of 
the  agent  made  at  a  different  time.     Peto  v.  Hague,  5  Esp.  134. 

But  the  Court  thought  there  was  evidence  from  which  it  might  be 
presumed  the  wife  was  acting  within  the  scope  of  her  authority  when 
she  offered  to  settle  a  demand  for  goods  delivered  at  a  shop  in  which 
she  served,  and  the  business  of  which  she  was  in  the  habit  of  conduct- 
ing ;  and  they  Refused  the  rule.^ 


GARTH   V.   HOWARD   and   FLEMING. 

CoMMOx  Pleas,   1832. 

Detinue  for  plate.  Plea,  general  issue.  At  the  trial  before  Tindal, 
C.  J.,  it  appeared  that  Howard  had,  without  authority,  pawned,  for 
£200,  certain  plate  belonging  to  the  plaintiff.  The  defendant,  Fleming, 
was  a  pawnbroker ;  but  the  only  evidence  to  show  that  the  plate  had 
ever  been  in  his  possession,  was  a  witness  who  stated  that,  at  the  house 
of  the  plaintiff's  attorney,  he  heard  Fleming's  shopman  say  that  it  was 
a  hard  case,  for  his  master  had  advanced  all  the  money  on  the  plate  at 
5  per  cent. 

This  evidence,  being  objected  to,  was  received,  subject  to  a  motion  to 
this  court ;  and  a  verdict  having  been  given  for  the  plaintiff, 

A/idreios,  Serjt.,  obtained  a  rule  nisi  for  a  new  trial,  on  the  ground, 
among  other  objections,  that  the  declarations  of  an  agent  can  only  be 
received  in  evidence  when  they  have  been  made  in  the  ordinar}'  course 
of  his  employer's  business  ;  and  that  it  is  not  in  the  course  of  a  pawn- 
broker's business  to  lend  £200  on  a  single  pledge,  or  at  5  per  cent 
interest. 

Spankie,  Serjt.,  showed  cause.  The  declaration  of  the  sliopraan  was 
made  in  the  ordinary  course  of  his  emplo3'ers  business  ;  for  that  busi- 

1  Compare  Stenhouse  v.  C,  C.  &  A.  Railroad  Co.,  70  N.  Car.  542  (1874).  — Ed. 

2  s.  c.  1  Moo.  &  S.  628.— Ed. 


SECT.  VI.]  GARTH   V.    HOWARD    AND   FLEMING.  453 

nes8  was  to  lend  money  on  pledges,  and  the  amount  of  the  pledge,  or 
of  the  interest  paid,  are  immaterial.  Now  it  is  established  bj-  Rex  v. 
Almon,  5  Burr.  2686,  that  the  law  presumes  a  master  to  be  acquainted 
with  the  acts  of  his  servant  in  the  course  of  his  business  ;  and  slight 
evidence  is  sufficient  to  establish  the  fact  of  agency.  Hazard  v. 
Treadwell,  1  Str.  506.  The  declarations  of  Fleming's  shopman,  there- 
fore, being  within  the  scope  of  his  authority  (Schumack  v.  Lock,  10  B. 
Moore,  39)  are  conclusive  against  his  emploj-er. 

Audreios.  The  business,  which  Fleming's  shopman  is  alleged  to 
have  spoken  to  was,  in  effect,  a  private  loan,  and  not  the  transaction 
of  a  pawnbroker's  shop.  It  is  inexpedient  to  extend  the  exception  by 
which  the  declarations  of  agents  are  received  in  evidence  on  hearsa}' ; 
and  in  Macsters  v.  Abraham,  1  Elsp.  375,  Lord  Kenyon  refused  to  admit 
even  the  letter  of  an  agent  as  evidence  of  an  agreement  b}-  his  principal. 
Such  evidence,  if  received,  ought  at  least  to  be  confined  to  declarations 
at  the  time  of  the  transaction.  In  Helj'ear  v.  Hawke,  5  Esp.  74,  it 
was  expressly  determined  that  the  principal  is  not  bound  b^"  the 
representation  of  the  agent  at  another  time.  Cur.  adv.  vidt. 

TiNDAL,  C.  J.  The  rule  in  this  case  has  been  obtained  upon  two 
distinct  grounds  ;  but  it  is  unnecessary  to  give  an  opinion  upon  any 
other  than  this,  namel}',  whether  the  declaration  of  the  shopman  of  the 
defendant  Fleming,  that  the  goods  were  in  the  possession  of  his  master, 
was  admissible  :  for  it  is  clear  that,  unless  Fleming  is  to  be  affected  by 
such  declaration,  he  is  entitled  to  the  verdict  upon  the  general  issue, 
nofi  detinet.  If  the  transaction  out  of  which  this  suit  arises  had  been 
one  in  the  ordinary  trade  or  business  of  the  defendant  as  a  pawnbroker, 
in  which  trade  the  shopman  was  agent  or  servant  to  the  defendant,  a 
declaration  of  such  agent  that  his  master  had  received  the  goods,  might 
probably  have  been  evidence  against  the  master,  as  it  might  be  held 
within  the  scope  of  such  agent's  authority'  to  give  an  answer  to  such  an 
inquirj'  made  by  anj'  person  interested  in  the  goods  deposited  with  the 
pawnbroker.  In  that  case,  the  rule  laid  down  by  the  Master  of  the 
Rolls  in  the  case  of  Fairlie  v.  Hastings,  10  Ves.  128,  which  ma}'  be 
regarded  as  the  leading  case  on  this  head  of  evidence,  directl}-  applies. 
But  the  transaction  with  Fleming  appears  to  us,  not  a  transaction  in 
his  business  as  a  pawnbroker,  but  was  a  loan  by  him  as  by  any  other 
lender  of  money  at  5  per  cent.  And  there  is  no  evidence  to  show  the 
agency  of  the  shopman  in  private  transactions  unconnected  with  the 
business  of  the  shop.  I  doubted  much  at  the  time  whether  it  could  be 
received,  and  intimated  such  doubt  by  reserving  the  point ;  and  now, 
upon  consideration  with  the  Court,  am  satisfied  that  it  is  not  admissible. 
It  is  dangerous  to  open  the  door  to  declarations  of  agents,  beyond  what 
the  cases  have  already  done.  The  declaration  itself  is  evidence  against 
the  principal,  not  given  upon  oath  :  it  is  made  in  his  absence,  when  he 
has  no  opportunity  to  set  it  aside,  if  incorrectlj'  made,  by  any  observa- 
tion, or  any  question  put  to  the  agent ;   and  it  is  brought  before  tlie 


454  MORSE   V.   CONNECTICUT   RIVEK    RAILROAD   CO.         [CHAP.  II. 

court  and  jury  frequently  after  a  long  interval  of  time.  It  is  liable, 
therefore,  to  suspicion  originally,  from  carelessness  or  misapprehen- 
sion in  the  original  hearer;  and  again  to  further  suspicion,  from  the 
faithlessness  of  memory  in  the  reporter,  and  the  facility  with  which  he 
may  give  an  untrue  account.  Evidence,  therefore,  of  such  a  nature, 
ought  alwa3's  to  be  kept  witliin  the  strictest  limits  to  which  the  cases 
have  confined  it ;  and  as  that  which  was  admitted  in  this  case  appears 
to  us  to  exceed  those  limits,  we  think  there  ought  to  be  a  new  trial. 

Mule  absolute. 


MORSE  V.  CONNECTICUT  RIVER  RAILROAD   CO. 
Supreme  Judicial  Court  of  Massachusetts.     1856. 

[6  Graij,  450.] 

Action  of  tort  by  a  passenger  from  Springfield  to  Chicopee  on  the 
defendants'  railroad,  for  the  loss  of  her  trunk. 

At  the  trial  in  the  Court  of  Common  Pleas,  the  plaintiff  introduced 
the  deposition  of  a  man  who  accompanied  her  on  that  occasion,  from 
which  Mellen,  C.  J.,  at  the  defendants'  suggestion,  ordered  the  fol- 
lowing statement  to  be  stricken  out :  "  The  next  morning  after  the 
trunk  was  lost,  in  accounting  for  the  trunk,  on  ray  inquiry,  either  the 
conductor  or  baggage  master  told  me  that,  the  night  before,  a  gentle- 
man stepped  up  and  claimed  and  took  a  trunk  of  the  same  description. 
But  the  same  morning  the  station  agent  told  me  he  thought  the  trunk 
was  carried  to  Northampton  the  night  before  with  other  baggage." 
The  jury  returned  a  verdict  for  the  defendants,  and  the  plaintiff  alleged 
exceptions  to  this  ruling. 

J.   Wells,  for  the  plaintiff. 

C.  TT.  Huntington,  for  the  defendants. — The  declarations  of  the 
defendants'  agents  were  properly  rejected,  not  having  been  made 
while  acting  within  the  scope  of  their  authorit}',  nor  in  relation  to  a 
transaction  then  depending.  It  was  not  the  province  of  the  conductor, 
at  least,  to  do  anything  about  the  baggage.  The  only  transaction  be- 
tween the  defendants  and  the  plaintiff  was  the  transportation  from 
Springfield  to  Chicopee,  and  that  was  over.  These  declarations, 
therefore,  were  no  part  of  the  res  gestae.  Stiles  u.  Western  Railroad, 
8  Met.  44;  Cooley  v.  Norton,  4  Cush.  93  ;  Corbin  v.  Adams,  6  Cush. 
95  ;  1  Greenl.  Ev.  §  113,  and  cases  cited.  Story  on  Agenc}',  §§  134- 
137. 

BiGELOw,  J.  The  declarations  offered  in  evidence  were  made  by 
the  conductor  or  the  baggage  master,  and  by  the  station  master,  "  the 
next  morning  after  the  trunk  was  lost,  in  accounting  for  the  trunk,"  in 
answer  to  inquiries  in  behalf  of  the  plaintiff.  It  was  part  of  the  duty 
of  those  agents  to  deliver  the  baggage  of  passengers,  and  to  account 


SECT.  VI.]  LUBY   V.    HUDSON    RIVER   RAILROAD    CO.  455 

for  the  same,  if  missing,  provided  inquiries  for  it  were  made  within  a 
reasonable  time.  These  declarations  were  tlierefore  made  by  them  as 
agents  of  the  defendants,  witliin  the  scope  of  their  agenc}",  and  while 
it  continued.     They  should  therefore  have  been  admitted. 

£Jxcex)tions  sustained.^ 


LUBY  V.   HUDSON  RIVER   RAILROAD   COMPANY. 

Court  of  Appeals  of  New  York.     1858. 

[17  N.  Y.  131.] 

Appeal  from  the  Supreme  Court.  The  action  was  for  alleged 
negligence  in  running  a  railroad  car  drawn  by  horses  against  the  plain- 
tiff Mrs.  Luby,  in  one  of  the  streets  of  New  York  city.  At  the  trial 
the  plaintiffs  called  as  a  witness  one  Mason,  a  policeman,  and  after 
proving  by  him  that  he  was  on  dut}-  near  the  spot  where  the  accident 
occurred,  and  was  called  upon  by  the  persons  assembled  around  the 
injured  woman,  he  was  permitted,  under  exception  by  the  defendant's 
counsel,  to  testify  that  he  arrested  the  driver  of  the  car  which  run 
against  Mrs.  Luby.  He  was  also  permitted,  under  like  exception,  to 
testify  that  upon  arresting  the  driver  as  he  was  getting  off  the  car  and 
out  of  the  crowd  which  surrounded  it,  he  asked  him  why  he  did  not 
stop  the  car,  to  which  the  driver  replied  that  the  brake  was  out  of 
order.  The  plaintiff  had  a  verdict  and  judgment  was  entered  there- 
upon, and  was,  upon  appeal,  affirmed  b}'  the  Supreme  Court  at  general 
term  in  the  first  district.     The  defendant  appealed  to  this  court. 

Charles  0'  Conor,  for  the  appellant. 

Hichard  0'  Gorman,  for  the  respondents. 

CoMSTOCK,  J.^  The  declarations  of  an  agent  or  servant  do  not  in 
.general  bind  the  principal.  Where  his  acts  will  bind,  his  statements 
and  admissions  respecting  the  subject-matter  of  those  acts  will  also 
bind  the  principal,  if  made  at  the  same  time  and  so  that  they  consti- 
tute a  part  of  the  res  gestae.  To  be  admissible,  they  must  be  in  the 
nature  of  original  and  not  of  hearsay  evidence.  They  must  constitute 
the  fact  to  be  proved,  and  must  not  be  the  mere  admission  of  some 
other  fact.  They  must  be  made,  not  only  during  the  continuance  of 
the  agency,  but  in  regard  to  a  transaction  depending  at  the  very  time. 
1  Greenl.  Ev.,  §  13;  Thalheimer  v.  Brinkerhoff,  4  Wend.  396;  Bank 
of  Monroe  v.  Field,  2  Hill,  445  ;  Story  on  Agency,  §§  135,  136  ;  Fairlie 
V.  Hastings,  10  Ves.  128  ;  Barker  v.  Binninger,  4  Kern.  271. 

In  this  case  it  seems  to  have  been  thought  material  on  the  part  of 
the  plaintiff  to  prove  that  the  brake  of  the  defendant's  car  was  out  of 

1  Arc. :  Laner.  Boston  &  Albany  Railroad  Co.,  112  Mass.  455  (1873).  — Ed. 
■■^  Part  of  the  opinion,  not  dealing  with  Agency,  is  omitted.  —  Ed. 


456  GREAT   WESTERN    RAILWAY   CO.    V.    WILLIS.  [CHAP.  II. 

order.  Whether  this  was  or  was  not  the  direct  object  of  introducing 
the  declaration  of  the  driver,  such  declaration  at  all  events  proved  the 
fact,  if  the  jury  saw  fit  to  credit  his  statement.  But  the  fact,  if  true, 
could  not  be  proved  in  this  manner.  The  declaration  was  no  part  of 
the  driver's  act  for  which  the  defendants  were  sued.  It  was  not  made 
at  the  time  of  the  act,  so  as  to  give  it  quality  and  character.  The 
alleged  wrong  was  complete,  and  the  driver,  when  he  made  the  state- 
ment, was  only  endeavoring  to  account  for  what  he  had  done.  He  was 
manifestly  excusing  himself  and  throwing  the  blame  on  his  principals. 
I  do  not  by  any  means  suggest  that  the  conduct  of  the  servant  himself, 
as  it  was  proved  on  the  trial,  was  not  so  negligent  as  to  justify  the  ver- 
dict ;  but  the  error  was  in  allowing  the  jury,  if  they  so  pleased,  to 
regard  another  material  fact  as  proved  by  a  mere  declaration  of  the 
agent,  —  a  fact  which  ma}'  possibly  have  exercised  a  decisive  influence 
upon  the  result.  What  effect  the  jury  gave  to  the  evidence  we  cannot 
tell.  I  see  no  way  of  getting  over  this  difficulty. 
All  the  judges  concurring, 

Judgment  reversed  and  new  trial  ordered.^ 


GREAT  WESTERN   RAILWAY  CO.,  Appellants,  v.  WILLIS, 

Respondent. 

'  Common  Pleas.     1865. 

[18  C.  B.  N.  s.  748.] 

1.  This  was  an  action  tried  before  the  judge  of  the  County  Court  of 
Staffordshire  and  a  jury,  at  Wolverhampton.  It  was  brought  to  re- 
cover £21  7s.  Qd.  for  the  non-delivery  within  a  reasonable  time  of  seven 
cows,  thirty-five  sheep,  and  six  pigs,  which  were  delivered  to  the  de- 
fendants at  Minety,  on  the  r2th  of  July,  1864,  to  be  carried  to  Wolver- 
hampton,—  the  cows,  sheep,  and  pigs  being,  as  was  alleged,  thereby 
much  injured,  and  the  plaintiff  put  to  expense,  and  the  market  at  Wol- 
verhampton being  lost. 

2.  The  cattle  were  delivered  at  the  Minet}^  station  by  the  plaintiff 
about  5  p.  m.  on  the  afternoon  of  the  12th  of  July. ^  •  •  . 

3.  The  plaintiff  proved  that  he  saw  the  cattle  loaded  into  trucks  at 
Minet}',  ready  for  a  goods  train  which  usually  leaves  Minety  about 
7  p.  M,,  that  he  had  been  in  the  habit  of  sending  cattle  by  the  defend- 
ants' railway  for  six  or  seven  years,  and  that  cattle  loaded  in  time 
for  that  train  usuall}^  arrived  at  Wolverhampton  about  7  the  next 
morning ;  .  .  .  that  .  .  .  the}'  did  not  arrive  by  that  train  ;  that  the 
next  train  was  due  at  10.30,  but  was  late,  and  did  not  arrive  till  be- 

1  Ace. :  Lane  v.  Bryant,  9  Gray,  245  (1857).  —  Ed. 

2  Points  not  dealing  with  Agency  are  omitted.  —  Ed. 


SECT.  VI.]  GRKAT   WESTERN    RAILWAY    CO.    V.    WILLIS.    "  457 

tween  12  and  1  ;  .  .  .  that  the  cattle  were  brought  up  to  the  market  by 
his  man  Grant  about  1  or  half-past  1,  when  the  market  was  over.  .  .  . 

5.  The  plaintiff  then  proposed  to  state  sometliing  relating  to  the 
cause  of  the  delay  in  delivering  the  cattle  by  the  company,  which  had 
passed  in  conversation  about  a  week  after  the  12th  of  July  between 
him  and  the  defendant's  night  inspector,  named  East,  at  Didcot, 
through  which  station  the  trucks  in  which  plaintiffs  cattle  were  would 
pass,  when  the  defendants  submitted  that  a  statement  by  a  subordinate 
servant  at  Didcot,  not  in  course  of  the  transaction,  but  some  time 
afterwards,  was  not  admissible :  but  the  learned  judge  allowed  the 
question  to  be  put ;  and  the  plaintiff  then  stated  that  he  said  to  East, 
"  How  is  it  you  did  not  send  m}'  cattle  on?"  and  that  he  said  in  reply, 
that  he  had  forgotten  them. 

The  plaintiff  also  stated  that  East  had  the  charge  of  the  night  cattle- 
trains  at  Didcot,  and  that  he  would  be  on  duty  when  the  trucks  in 
which  the  plaintiffs  cattle  were  would  pass  through  Didcot,  and  that 
he  knew  East  well,  and  had  frequentl}-  seen  him  on  duty  at  Did- 
cot. .  .  . 

16.  The  jury  found  for  the  plaintiff,  that  there  had  been  an  un- 
reasonable dela}',  and  assessed  the  damages  for  loss  of  market  at  £14, 
and  injury  to  the  condition  of  the  cattle  at  £7  7s,  6c7. 

17.  The  questions  for  the  decision  of  the  Court,  were,  —  first,  whether 
the  learned  judge  was  right  in  admitting  the  evidence  of  the  conversa- 
tion with  East,  set  forth  in  the  fifth  paragraph,  —  secondl}-,  whether 
the  learned  judge  was  right  in  refusing  to  nonsuit  the  plaintiff,  and 
whether  he  ought  not  to  have  ruled  and  directed  that  there  was  no 
evidence  for  the  jur}-,  —  thirdl}-,  whether  the  learned  judge  was  right 
in  his  direction  to  the  jur}'. 

T.  J.  Clark  (with  whom  was  Dicjhy)^  for  the  appellants. 

Macnamara,  for  the  respondent.^ 

Erle,  C.  J.  I  am  of  opinion  that  this  night  inspector  is  not  to  be 
presumed  to  have  had  authority'  to  make  admissions  relative  to  trans- 
actions gone  by,  so  as  to  bind  his  employers.  I  think  neither  of  the 
cases  cited  has  any  application  here.  I  therefore  think  there  must  be  a 
new  trial,  and  that  the  appellants  are  entitled  to  costs. 

The  rest  of  the  Court  concurring, 

Mule  accordingly.^ 

1  Citing  Garth  v.  Howard,  ante,  p.  452,  and  Clifford  v.  Burton,  ante,  p.  4.51.  — Ed. 

2  Ace. :  Anderson  v.  R.,  W.  &  0.  Railroad  Co.,  54  N.  Y.  334  (1873).  —  Ed, 


458       KIRKSTALL  BREWERY  CO.  V.  FURNESS  RAILWAY  CO.       [CHAP.  IL 


KIRKSTALL  BREWERY   CO.   v.   FURNESS  RAILWAY  CO. 
Queen's  Bencu.     1874. 
[L.  R.  9  Q.  B.  468.] 

Declaration  that  plaintiffs  caused  to  be  delivered  to  defendants, 
being  common  carriers  of  goods,  a  parcel  containing  £35,  in  bank-notes 
and  gold,  to  be  carried  from  Whitehaven  to  Ulverston  ;  that  defendants 
did  not  deliver  the  parcel,  and  it  has  been  wholly  lost  to  plaintiffs. 

Pleas,  inter  alia:  3,  that  the  parcel  contained  money,  and  was  within 
the  Carriers  Act  (11  Geo.  4  &  1  Wm.  4,  c.  68)  ;  and  that  the  nature 
of  the  contents  was  not  declared  and  the  extra  charge  paid  when  the 
parcel  was  delivered  to  defendants. 

Replication :  that  the  loss  of  the  parcel  arose  from  the  felonious 
act  of  a  porter  or  servant  of  the  defendants,  and  the  non-delivery  of 
the  parcel  was  caused  by  such  felonious  act. 

Issue  joined. 

At  the  trial  before  Denman,  J.,  at  the  sittings  in  Middlesex  after 
Trinity  Term,  1873,  it  appeared  in  evidence  that  an  agent  of  the  plain- 
tiffs, on  Wednesday,  the  17th  of  July,  1872,  sent  a  parcel  containing 
£35  in  notes  and  gold  from  the  Whitehaven  station  of  the  defendants' 
railway,  addressed  to  a  clerk  of  the  plaintiffs,  "  Mr.  Gardner,  Kirkstall 
Brewery  Company's  Stores,  EUers,  Ulverston"  (where  there  is  a 
station  of  the  defendants),  and  paid  M.  carriage.  That  the  parcel  was 
not  delivered  to  Gardner  ;  and  on  the  same  day  John  Haslam,  a  porter 
in  the  defendant's  service  at  their  Ulverston  station,  disappeared,  and 
had  never  been  found  since. 

George  Holden,  a  superintendent  of  police,  was  then  called  on  be- 
half of  the  plaintiffs,  and,  after  objection  by  defendants'  counsel,  gave 
the  following  evidence  :  "  I  am  superintendent  of  police  at  Ulverston. 
I  know  Podmore,  the  station-master  at  defendants'  station  at  Ulverston  ; 
in  consequence  of  a  communication  in  writing  I  went  to  him  on 
Saturday,  the  20th  of  July.  He  told  me  that  a  man  of  the  name  of 
John  Haslam  had  absconded  from  the  service  ;  that  a  mone}'  parcel 
was  missing,  and  he  [Podmore]  suspected  Haslam  had  taken  it.  He 
said  Haslam  was  the  parcel  porter.  Would  1  [witness]  make  inquiries 
about  him  ?  " 

The  learned  judge  left  it  to  the  jury  to  sa}',  whether  they  thought  it 
was  estabhshed  that  the  parcel  was  stolen  by  one  of  the  defendants' 
servants.     The  jury  found  a  verdict  for  the  plaintiffs  for  £35. 

A  rule  was  afterwards  obtained  for  a  new  trial,  on  the  ground  of 
misreception  of  the  above  evidence. 

Sir  H.  (Tames,  Q.  C,  and  Iteid^  showed  cause. 

Price,  Q.  C,  and  Crompton^  in  support  of  the  rule. 
CocKBURN,  C.  J.     I  am  of  opinion  that  the  rule  must  be  discharged 
on  the  ground  that  the  evidence  was  admissible  under  the  particular 


SECT.  VI.]  PACKET   COMPANY   V.   CLOUGH.  459 

circumstances  of  the  case.  A  man,  a  railway  porter  at  the  station  to 
which  the  parcel  is  addressed,  is  beUeved  to  have  absconded  with  a 
parcel  of  money,  which  must  be  talien  to  have  been  tlie  plaintiff's 
mone}'.  The  parcel  and  man  disappear  simultaneously,  and  the  man 
was  the  person  to  whom,  in  due  course,  the  parcel  would  have  been 
delivered ;  there  was,  therefore,  reasonable  and  probable  cause  for 
arresting  him  on  the  charge  of  taking  the  parcel.  Suppose  the  prin- 
cipal in  this  case  had  been  an  individual,  and  had  gone  to  a  police- 
man and  said,  "  A  parcel  has  been  taken  from  my  premises,  and  I 
cannot  doubt  it  has  been  taken  aninio  furandi^  for  the  person  to 
whom  it  was  delivered  has  absconded  just  at  the  time  the  parcel 
was  missed,  I  therefore  believe  him  to  be  the  thief;  I  ask  you  to 
make  inquiries  and  to  apprehend  him  if  you  find  him  under  suspicious 
circumstances."  There  is  no  principle  on  which  that  would  not  be  ad- 
missible evidence.  Then,  if  Podmore  was  the  agent  of  the  defendants, 
and  if  it  was  within  the  scope  of  his  dut}-  and  authorit}"  as  agent  to  do 
what  the  principal,  if  on  the  spot,  would  have  done,  what  he  sa3S 
while  he  is  so  acting  is  equally  admissible  as  if  said  by  the  principal 
himself.  Now,  it  is  impossible  to  sa}-,  that  the  man  who  has  the  sole 
management  of  the  station  has  not  authority  to  cause  a  person  to  be 
apprehended  whom  he  has  reasonable  ground  to  suspect  has  stolen  a 
parcel  from  the  station.  Therefore  Podmore  had  authority  to  cause 
inquiry  to  be  made  after  Haslam,  and  to  cause  him  to  be  apprehended, 
and  if  so,  then  it  was  within  his  duty  and  authority  to  make  communi- 
cations to  the  police.  In  other  words,  the  effect  of  the  particular  cir- 
cumstances of  this  case  was  to  make  the  statement  of  Podmore  to  the 
police  superintendent,  on  the  occasion  in  question,  the  statement  of  a 
person  having  authority  on  the  part  of  the  company  to  make  it.^ 

B,ule  discharged. 


PACKET   COMPANY  v.   CLOUGH. 

Supreme  Court  of  the  United  States.     1874. 

[20  Wall  528.] 

Error  to  the  Circuit  Court  for  the  Eastern  District  of  AVisconsin. 

In  January,  1870,  Carlos  Clough  and  Sarah,  his  wife,  in  right  of  the 
wife,  sued  the  Union  Packet  Company,  in  an  action  on  the  case  to 
recover  damages  for  personal  injuries  sustained  bv  the  wife  in  conse- 
quence of  alleged  negligence  of  the  company's  servants.  The  declara- 
tion was  in  the  regular  common-law  form  :  Plea:  The  general  issue. 

The  company,  at  the  time  of  the  injury,  was  owner  of  a  steamboat 
employed  by  it  in  carrying  passengers  and  freight  on  the  Mississippi 

'■  Opinions  to  the  same  effect  were  delivered  by  Q^in  and  Archibald,  JJ.  —  Ed. 


460  PACKET    COMPANY   V.    CLOUGH.  [CHAP.  II. 

River,  between  St.  Paul,  in  the  State  of  Minnesota,  and  St.  Louis,  in 
the  State  of  Missouri.  During  the  passage  downward,  the  boat  ar- 
rived at  Read's  Landing,  in  Minnesota,  at  about  two  o'clock  on  the 
afternoon  of  September  30th,  1869,  where  she  stopped  to  receive  pas- 
sengers. At  that  place  Mrs.  Clough  (who  was  about  to  go  to  Daven- 
port, in  Iowa,  at  which  place  the  boat  was  in  the  habit  of  touching) ,  in 
attempting  to  go  on  board,  fell  from  the  gangway  provided  for  en- 
trance to  the  boat,  and  received  the  injurs-  for  which  the  suit  was 
brought.^  .  .  . 

It  appeared  by  the  statements  of  Mrs.  Clough  that  she  went  to  Daven- 
port, arriving  there  in  the  evening ;  that  she  was  on  the  boat  two  days 
and  a  half;  that  on  account  of  the  injury  received  by  her  she  had  been 
unwilling  to  pay  fare  ;  that  the  captain  demanded  none  of  her,  and  that 
she  thanked  him  for  the  free  passage. 

In  the  course  of  the  trial  the  plaintiffs'  counsel  asked  Mrs.  Clough 
this  question  :  — 

"  What  conversation,  if  any,  did  you  have  with  the  captain  after 
the  accident,  on  her  trip  down  to  Davenport?  " 

The  question  was  objected  to  by  the  defendant's  counsel,  but  the 
court  overruled  the  objection,  and  the  answer  to  the  objection  was  read 
as  follows : 

"  He  said  it  was  through  the  carelessness  of  the  hands  in  putting  out 
the  plank  that  I  fell ;  that  they  did  not  put  out  the  regular  plank,  but 
loose  planks.  It  was  in  the  evening  before  we  got  into  Davenport, 
that  I  had  the  conversation  with  the  captain."  .  .  . 

Verdict  and  judgment  having  been  given  for  the  plaintiffs  in  $6,000, 
the  company  brought  the  case  here,  assigning  for  error  .  .  . 

6th.  The  allowing  Mrs.  Clough  to  state,  as  she  did,  what  the  captain 
had  said  to  her  after  the  accident,  and  on  the  trip  down  to  Davenport 
and  just  before  arriving  at  that  place,  in  regard  to  the  cause  of  the 
injur}-.  .  .  . 

Jifr.  J.  W.  Gary,  for  the  plaintiff  in  error. 

Messrs.  W.  P.  Bartlett  and  J/.  II.  Carpenter,  contra. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court.  .  .  . 

The  next  assignment  is  more  important.  The  accident  by  which  the 
plaintiff  was  injured  occurred  at  Read's  Landing,  in  Minnesota,  on  the 
30th  day  of  September,  1869,  about  two  o'clock  in  the  afternoon.  Two 
days  afterwards,  as  the  boat  approached  Davenport,  in  the  State  of 
Iowa,  Mrs.  Clough,  the  witness,  had  a  conversation  with  the  captain, 
in  which  he  made  some  statements  respecting  the  accident,  and  these 
statements  the  court  allowed  to  be  given  in  evidence  against  the  de- 
fendants. In  this  we  think  there  was  error.  Declarations  of  an  agent 
are,  doubtless,  in  some  cases,  admissible  against  his  principal,  but  only 
80  far  as  he  had  authority  to  make  them,  and  authority  to  make  them 
is  not  necessaril}'  to  be  inferred  from  power  given  to  do  certain  acts. 

1  From  the  statement  and  the  opinion,  passages  not  pertaining  to  Agency  are 
omitted.  —  Ed.  « 


SECT.  VI.]  PACKET   COMPANY   V.    CLOUGII.  461 

A  captain  of  a  passenger  steamer  is  empowered  to  receive  passengers 
on  hoard,  but  it  is  not  necessary  to  this  ])0\ver  that  he  be  authorized  to 
admit  that  either  his  principal,  or  any  servant  of  his  principal,  has 
been  guilty  of  negligence  in  receiving  passengers.  There  is  no  neces- 
sary connection  between  the  admission  and  the  act.  It  is  not  needful 
the  captain  should  have  such  power  to  enable  him  to  conduct  the  busi- 
ness intrusted  to  him,  to  wit,  the  reception  of  passengers,  and,  hence, 
his  possession  of  the  power  to  make  sucli  admissions  affecting  his  prin- 
cipals is  not  to  be  inferred  from  his  employment.  1  Taylor  on  Evi- 
dence, §  541.  It  is  true  that  whatever  the  agent  does  in  the  lawful  pros- 
ecution of  the  business  intrusted  to  him,  is  the  act  of  the  principal,  and 
the  rule  is  well  stated  by  Mr.  Justice  Story,  Story  on  Agency,  §  134, 
that  "  where  the  acts  of  the  agent  will  bind  the  principal,  there  his 
representations,  declarations,  and  admissions  respecting  the  sul)ject- 
matter  will  also  bind  him,  if  made  at  the  same  time,  and  constituting 
part  of  the  res  gestce."  A  close  attention  to  this  rule,  which  is  of  uni- 
versal acceptance,  will  solve  almost  ever}-  difficult}'.  But  an  act  done 
by  an  agent  cannot  be  varied,  qualified,  or  explained,  either  by  his 
declarations,  which  amount  to  no  more  than  a  mere  narrative  of  a  past 
occurrence,  or  b}'  an  isolated  conversation  held,  or  an  isolated  act  done 
at  a  later  period.  1  Taylor  on  Evidence,  §  526.  The  reason  is  that 
the  agent  to  do  the  act  is  not  authorized  to  narrate  what  he  had  done 
or  how  he  had  done  it,  and  his  declaration  is  no  part  of  the  "  res 
gestce.'" 

Applying  this  rule  to  the  present  case,  how  does  it  stand?  The 
thing  of  which  the  plaintiffs  complain  was  negligence,  on  the  30th  of 
September,  —  a  fault  in  providing  for  Mrs.  Clough's  embarkation  on  the 
steamer.  That,  and  that  alone,  caused  the  injury  she  sustained.  That 
and  nothing  else  was  the  "  res  gestae."  What  the  captain  of  the  boat 
said  of  the  transaction  two  days  afterwards  was,  therefore,  but  a  nar- 
rative of  a  past  occurrence,  and  for  that  reason  it  could  not  affect  his 
principals.  It  had  no  tendency  to  determine  the  nature,  quality,  or 
character  of  the  act  done,  or  left  undone,  and  it  is  not,  therefore,  within 
the  rule  stated  by  Judge  Story,  That  rule  has  been  recognized  in  toti- 
dem  verbis  in  Wisconsin  by  Chief  Justice  Dixon,  in  delivering  the  opin- 
ion of  the  court  in  The  jNIilwaukee  and  Mississippi  Railroad  Company  v. 
Finney,  10  Wisconsin,  388.  And  there  is  nothing  in  any  of  the  decisions 
cited  by  the  defendants  in  error  inconsistent  with  such  a  rule.  The  case 
of  The  Enterprise,  cited  from  2d  Curtis,  was  a  suit  in  admiralty  for  sul> 
traction  of  wages,  and  the  declarations  of  the  master  respecting  the 
contract  with  the  seamen  were  admitted,  though  not  a  part  of  the  res 
gestce.  But  the  decision  was  rested  upon  the  ground  that  the  admiralty 
rule  is  different  from  the  rule  at  common  law.  The  case  of  Burnside 
V.  The  Grand  Trunk  Railroad  Company,  cited  from  47  New  Hampshire, 
simply  decides  that  the  statements  of  the  general  freight  agent  as  to 
the  condition  of  goods  delivered  to  him  for  transportation,  made  while 
the  goods  are  still  in  transit,  or  while  the  duty  of  the  carrier  continues, 


462  HOWE    MACHINE    CO.    V.    CLARK.  [CHAP.  II. 

are  admissible  in  evidence  against  tiie  company.  Tliis  was  a  case  of 
contract  not  executed,  and,  wLiile  it  remained  unexecuted,  tlie  agent 
had  power  to  vary  it ;  had,  in  fact,  complete  control  over  it.  The  trans- 
action was  still  depending,  and  the  agent  was  still  in  the  execution  of 
an  act  which  was  within  the  scope  of  his  authority.  But  in  the  present 
case  the  declarations  admitted  were  not  made  in  the  transaction  of 
which  the  plaintiffs  complain,  or  while  it  was  pending.  They  refer  to 
nothing  present.     They  are  only  a  history  of  the  past. 

It  is  argued  they  were  made  before  the  voyage  upon  which  Mrs. 
Clough  entered  was  completed.  True,  they  were,  but  they  were  not 
the  less  mere  narration.  The  accident  was  past.  The  injury  to  Mrs. 
Clough  was  complete.  The  onl^'  wrong  she  sustained,  if  any,  had 
been  consummated  two  days  before.  We  cannot  think  the  fact  that 
she  had  not  arrived  at  her  port  of  destination  is  at  all  material.  If 
she  had  left  the  steamer  before  the  declarations  were  made  it  is  not 
claimed,  as  certainly  it  could  not  be,  that  they  were  admissible.  Now, 
suppose  two  persons  were  injured  b}'  the  negligence  which  the  plain- 
tiffs assert,  and  one  of  tii^ui  had  left  the  boat  before  the  captain's  dec- 
larations were  made,  clearly  they  would  have  been  inadmissible  in 
favor  of  the  person  whose  vo3'age  had  been  completed.  This  is  not 
denied.  Yet  the  connection  between  them  and  the  accident  would  be 
as  close  in  that  case  as  in  this.  Can  they  be  admissible  in  the  one  case 
and  not  in  the  other?  Assuredly  not.  We  must  hold,  therefore,  that 
there  was  error  in  admitting  in  evidence  the  statement  of  the  captain 
of  the  steamboat  made  two  days  after  the  wrong  was  done  of  which 
the  plaintiffs  complain.  .  .  . 

Judgment  reversed^  and  a  venire  de  novo  atcarded} 


HOWE  MACHINE   CO.   v.   CLARK. 

Supreme  Court  of  Kansas.     1875. 

[15  Kan.  492.] 

Oevenney  &  Green,  for  plaintiff. 

St.  John  &  Parker^  for  defendant. 

The  opinion  of  the  court  was  delivered  by 

Valentine,  J.^  This  was  an  action  of  replevin,  brought  by  the  Howe 
Machine  Company  against  James  H.  Clark,  to  recover  the  possession 
of  two  horses,  one  set  of  double  harness,  and  one  set  of  thills.  The 
judgment  in  the  court  below  was  in  favor  of  the  defendant  and  against 

1  See  Vicksbnrg  &  Meridian  Railroad  v.  O'Brien,  119  U.  S.  99  (1886) ;  s.  c,  Thay- 
er's Cases  on  Evidence,  66.3.  —  Ed. 

2  The  reporter's  statement  is  omitted ;  and  so  are  such  parts  of  the  opinion  as  do 
not  deal  with  Agency.  —  Ed. 


SECT.  VI.]  HOWE    MACHINE    CO.    V.    CLARK.  463 

the  plaintiff,  and  the  plaintiff  brings  the  case  to  this  court  for  review. 
The  theory  of  the  plaintiff  with  regard  to  such  property  is  as  follows : 
The  plaintiff  originally  owned  the  property.  It  employed  one  II.  E. 
Tracy  to  procure  sales  of  its  sewing  machines  in  Johnson  couutv,  and 
I'urnished  him  with  an  "outfit"  for  that  purpose,  consisting  of  said 
property,  together  with  some  other  property-.  The  property  in  contro- 
versy was  hired  to  Tracy  upon  certain  conditions,  which  conditions 
were  immediately  broken  by  Tracy,  and  the  plaintiff  from  that  time  not 
only  claims  to  have  owned  the  i-woperty,  but  also  claims  to  have  had 
the  right  to  the  immediate  possession  thereof  Afterward  Tracy  sold 
said  horses  and  harness,  and  delivered  the  same,  together  with  said 
thills,  to  the  defendant  Clark,  without  the  knowledge  or  consent  of  the 
plaintiff.  .  .  . 

It  was  error  for  the  court  to  permit  defendant  to  prove  the  state- 
ments of  Trac3'  formerly  made  b}-  him  concerning  this  and  other  prop- 
ert}'.  The  defendant  claimed  that  Tracy  had  authority  from  the  Howe 
Machine  Company  to  sell  this  identical  propert}- ;  and,  for  the  purpose 
of  proving  that  Tracy  had  such  authority,  introduced  evidence  over  the 
objections  of  the  plaintiff,  but  with  the  permission  of  the  court,  showing 
that  Tracy  had  at  different  times  stated  that  he  had  such  authority', 
and  that  he  had  authority  to  sell  not  only  this  but  other  property  be- 
longing to  the  company.  Now  it  is  competent  to  prove  a  parol  agenc}', 
and  its  nature  and  scope,  by  the  testimony  of  the  person  who  claims  to 
be  the  agent.  It  is  competent  to  prove  a  parol  authority  of  any  person 
to  act  for  another,  and  generally  to  prove  an}-  parol  authority  of  any 
kind,  by  the  testimony  of  the  person  who  claims  to  possess  such 
authority.  But  it  is  not  competent  to  prove  the  supposed  authority  of 
an  agent,  for  the  purpose  of  binding  his  principal,  by  proving  what  the 
supposed  agent  has  said  at  some  previous  time.  Nor  is  it  competent  to 
prove  a  supposed  authority  of  any  kind,  as  against  the  person  from 
whom  such  authority  is  claimed  to  have  been  received,  by  proving 
the  previous  statements  of  the  person  who  it  is  claimed  had  attained 
such  authorit}'.  .  .  . 

The  judgment  of  the  court  below  will  be  reversed,  and  the  cause 
remanded  for  a  new  trial. ^ 

1  Ace  :  Brigham  v.  Peters.  1  Gray,  139,  145  (1854)  ;  Craighead  v.  Wells,  21  Mo. 
404  (1855);  Sencerbox  v.  McGrade,  6  Miun.  484  (1861);  Hatch  v.  Squires,  11  Mich. 
185  (1863);  Sax  v.  Davis,  71  Iowa,  406  (1887);  Missouri  Pacific  Railway  Co.  u 
Simons,  6  Tex.  Civ.  App.  691  (1894).  — Ed. 


464  LOOMIS   V.   NEW   YORK,   ETC.    RAILROAD    CO.  [CHAP.  11 


LOOMIS   V.   NEW  YORK,   NEW  HAVEN,  and  HARTFORD 
RAILROAD   CO. 

Supreme  Judicial  Coukt  of  Massachusetts.     1893. 

[159  Mass.  39.] 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  in  consequence 
of  a  fall  upon  some  steps  in  the  railroad  station  of  the  defendant  at 
Hartford,  Connecticut,  by  reason  of  ice  upon  the  steps. 

At  the  trial  in  the  Superior  Court,  before  Hopkins,  J.,  it  appeared 
that  there  had  been  a  trial  of  the  case  at  a  former  sitting  of  the  court 
in  Jul}',  1891,  and  that  a  new  trial  was  granted. 

It  appeared  in  evidence  that  the  plaintiff  went  from  Springfield  to 
Hartford  on  one  of  tlie  defendant's  trains,  arriving  at  about  twenty  min- 
utes past  twelve  in  the  afternoon  of  January  1,  1891  ;  that  she  passed 
from  the  platform  to  the  waiting-room  by  a  staircase  constructed  of 
wood,  which  led  down  a  course  of  fifteen  steps  to  a  broad  stair  or 
landing  eigiit  feet  square,  and  then,  turning  to  the  left,  at  right  angles, 
descended  six  steps  more  to  the  passageway  on  a  level  with  the  floor  of 
the  waiting-room  connected  therewitli ;  and  that  the  lowest  of  the  six 
steps  was  about  thirtj'-five  feet  from  the  waiting-room. 

This  staircase  was  the  regular  staircase  for  passengers  going  from 
the  platform  to  the  waiting-room.  There  was  no  testimony  from  any 
person  except  the  plaintiff  as  to  the  way  in  which  she  fell  or  the  place 
where  she  fell,  other  than  what  appeared  from  her  subsequent  state- 
ments, as  testified  to  b}'  other  witnesses,  and  as  appeared  from  their  tes- 
timony referred  to  hereafter.  She  testified  that  she  had  gone  down  the 
stairs  but  a  very  few  steps  from  the  platform  where  she  alighted  from 
the  train,  when  she  fell  and  received  her  injuries  ;  that  many  persons 
were  going  down  the  stairs  at  the  same  time ;  that  she  fell  three  or 
four  steps  down,  from  the  top  of  the  long  flight  and  almost  to  the 
broad  stair,  and  did  not  fall  at  the  bottom  of  the  short  flight  referred 
to  above.   .   .   . 

The  defendant  produced  in  court,  and  offered  to  introduce  in  evi- 
dence, two  letters,  of  which  the  following  are  copies,  written  b}'  a  clerk 
in  the  office  of  James  B.  Carroll,  the  plaintiffs  attorney,  to  wit. 

"Springfield,  Mass.,  Jan'y  5,  1891.  Mr.  Wm.  E.  Barnett,  Executive 
Secretary,  N.  Y.,  N.  H.,  and  H.  R.  R.  Co.,  New  Haven,  Conn.  Sir: 
Mrs.  Hulda  L.  Loomis  of  this  city,  on  Thursday,  January  1,  1891,  fell 
down  the  stairs  of  3'our  depot  at  Hartford,  just  after  arriving  on  the 
11.45  A.M.  train  from  here.  The  cause  of  the  accident  was  the  snow 
and  ice  on  the  stairs.  Her  spine  is  affected,  and  she  has  received 
severe  internal  injuries.  Please  let  me  hear  from  ^-ou.  Yours  trul}^, 
James  B.  Carroll.     F." 

"  Springfield,  Mass.,  Jan'y  10,  1891.  Wm.  E.  Barnett,  Exec.  Sec'y, 
N.  Y.,  N.  H.,  and  H.  R.  R.  Co.,  New  Haven,  Conn.     Sir:    In  reply  to 


SECT.  VI.]         LOOMIS   V.    NEW    YORK,   ETC.    RAILROAD   CO.  465 

yours  of  tlie  7tli  instant,  regarding  the  accident  to  Mrs.  Loomis,  I  would 
state  lliat  she  fell  on  the  third  or  fourth  step  from  the  bottom  of  the 
stairway  across  the  tracks  from  the  waiting-room.  Your  men  picked 
her  up  after  her  fall  and  know  where  it  occurred.  It  is  impossible  now 
to  state  how  much  she  will  take  for  compensation,  as  her  illness  and 
injury  are  so  serious  at  present  that  one  cannot  tell  how  permanent  may 
be  their  effects.     Yours  trul}-,  James  B.  Carroll.     F." 

It  was  proved  that  tlie  clerk  had  the  same  authority  to  write  the 
letters  which  Mr.  Carroll,  as  attorney  for  the  plaintiff,  had,  and  it  was 
further  proved  that  these  letters  were  received  in  due  course  of  mail  by 
the  defendant. 

The  letter  of  January  10  was  in  answer  to  the  following  letter  of  the 
defendant,  which  it  offered  in  evidence  :  — 

"  New  Haven,  Conn.  Jan.  7th,  1891.  James  B.  Carroll,  Esq.,  Spring- 
field, Mass.  Dear  Sir;  Referring  to  yours  of  Jan.  5th,  in  regard  to 
claim  of  Mrs.  Loomis,  will  you  kindly  state  precisely  the  place  where 
she  fell,  and  what  amount  she  claims  should  be  paid  to  her?  Yours 
truly,  Wm.  E.  Barnett,  Exec.  Sec'y." 

The  above  letters,  a  letter  of  the  defendant  of  January  12,  1891, 
containing  statements  favorable  to  the  defendant,  and  a  letter  of  the 
plaintiff's  attorney  of  January  13,  1891,  containing  comments  outside 
the  scope  of  his  employment,  were  all  excluded,  and  the  defendant 
excepted.  It  was  proved  that  the  husband  of  the  plaintiff,  as  her  agent, 
secured  Mr.  Carroll  as  attorney  for  the  plaintiff  after  the  accident  in 
January  1891,  and  that  he  did  not  see  her  until  less  than  two  weeks 
before  the  first  trial  of  the  action,  which  was  long  after  the  letters  were 
written. 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendant 
alleged  exceptions. 

The  case  was  submitted  on  briefs  to  all  the  judges. 

G.  D.  Robinson  &  W.  S.  Hobinson^  for  the  defendant. 

J.  B.  Carroll,  for  the  plaintifT. 

Knowlton,  J.^  The  principal  question  in  the  case  relates  to  the 
admissibility  of  a  letter  written  to  the  defendant  by  a  clerk  of  the 
plaintiffs  attorney,  under  authority  from  the  attorney,  purporting  to 
state  the  facts  on  which  her  claim  was  founded.  The  bill  of  excep- 
tions sets  forth  two  letters  written  to  the  defendant  by  this  clerk,  two 
written  to  the  attorney  by  the  executive  secretar}'  of  the  defendant, 
and  one  afterwards  written  to  the  defendant  by  the  attorney  with  his 
own  hand.  The  first  two,  written  by  the  clerk  under  authority  from 
the  attorney,  were  first  offered,  then  testimonj'  was  introduced,  and  the 
defendant  offered  the  letter  from  the  attorney  to  the  defendant,  "  and 
also  the  letters  of  the  defendant  to  Mr.  Carroll,"  the  attorney,  and 
exceptions  were  taken  to  the  refusal  to  admit  them.     It  is  clear  that 

^  In  reprinting  this  opinion  and  the  reporter's  statement  of  facts,  passages  not 
relating  to  Agency  are  ontiitted.  —  Ed. 

30 


466  LOOMIS   V.    NEW    YORK,    ETC.    RAILROAD    CO.  [CHAP.  II. 

the  defendant  was  not  entitled  to  introduce  the  entire  correspondence, 
for  it  contains  statements  of  the  executive  secretary  favorable  to  the 
defendant,  which  were  not  competent.  Perhaps,  also,  the  last  letter  of 
the  plaintiff's  attorney,  which  he  wrote  with  his  own  hand,  was  inadmis- 
sible as  containing  opinions  and  comments  which  were  strictly  personal 
and  outside  of  the  scope  of  his  employment.  It  is  contended  that  the 
only  question  open  to  the  defendant  is  whether  the  entire  correspond- 
ence was  competent,  but  we  are  of  opinion  that  the  question  whether 
the  first  two  letters  were  competent  was  intended  to  be  saved  by  the 
bill  of  exceptions. 

The  object  of  the  evidence  was  to  show  that,  when  the  plaintiff 
presented  her  claim  through  her  attorney,  it  was  for  a  fall  at  a  place 
near  where  the  defendant's  evidence  at  the  trial  tended  to  show  thai 
it  occurred,  and  where  the  stairs  were  in  perfect  condition,  and  not  at 
the  place  where  the  plaintiff  located  it  in  her  testimony.  Upon  the 
issue  raised,  the  fact  sought  to  be  proved  was  material  and  important. 
We  are  algo  of  opinion  that  the  method  of  proof  was  competent  and 
proper. 

The  undisputed  evidence  tends  to  show  that  the  attorney  had  been 
employed  to  represent  her  in  the  collection  of  a  claim  against  the 
defendant  for  damages  resulting  from  a  fall  in  the  defendant's  railroad 
station  at  Hartford.  The  terms  of  his  employment  do  not  expressly 
appear.  But  a  fair  inference  from  the  evidence  is  that  he  was  not 
merely  employed  to  bring  a  suit,  but  was  authorized  to  present  the 
plaintiff's  claim,  and  to  endeavor  to  obtain  a  settlement  of  it  without 
a  suit.  If  this  was  his  authorit}',  we  have  no  occasion  to  consider  the 
cases  holding  that  admissions  which  are  mere  matters  of  conversation 
with  an  attorne}',  though  the}'  relate  to  the  facts  in  controvers}',  cannot 
be  received  in  evidence  against  his  client.  Such  admissions  are  not 
within  the  scope  of  his  employment.  Nor  have  we  any  reason  to  con- 
sider in  this  case  the  general  authority  of  an  attorne}',  by  virtue  of  his 
position  as  an  attorney  at  law,  in  charge  of  a  suit,  to  bind  his  client  by 
agreements  in  reference  to  the  management  or  disposition  of  the  suit. 
See  Lewis  v.  Sumner,  13  Met.  269  ;  Saunders  v.  McCarth}^  8  Allen,  42  ; 
Pickert  v.  Hair,  146  Mass.  1.  The  maxim,  Qui  facif  per  aliuni  facit 
per  se,  applies  as  well  to  acts  done  or  statements  made  b}-  an  attorney 
at  law  as  by  an}'  other  agent.  The  act  of  a  part}'  done  by  his  agent 
may  always  be  proved  against  him  if  material. 

An  attorney  or  agent  employed  to  present  and  collect  a  claim  is 
impliedly  authorized  to  state  to  the  debtor  what  the  claim  is.  The 
plaintiff  could  not  have  expected  that  her  attorney  would  collect  her 
claim  from  the  defendant  on  demand,  without  stating  the  nature  and 
particulars  of  it,  so  that  the  defendant  could  understand  it,  and  make 
investigation  in  regard  to  its  validity.  It  was  as  much  a  part  of  his 
duty  to  state  as  nearly  as  possible  the  precise  place  in  the  building 
where  the  accident  happened,  if  asked  to,  as  to  state  in  what  town 
or  State  the  plaintiff  was  when  she  fell.      The  defendant's  letter  of 


SECT.  VI.]         LOOMIS   V.    NEW   YORK,    ETC.    RAILROAD    CO.  467 

January  7,  1891,  inquiring  for  particulars,  is  competent,  in  connec- 
tion with  the  letter  of  January  10,  which  purports  to  be  an  answer 
to  it,  to  show  how  the  statement  came  to  be  made  ;  and  the  two 
together,  in  connection  with  the  first  letter  of  January  5,  show  conclu- 
sively that  writing  the  words,  "she  fell  on  the  third  or  fourth  step 
from  the  bottom  of  the  stairway  across  the  tracks  from  the  waiting- 
room,"  was  strictly  within  the  authority  of  her  attorney-,  employed  to 
present  and  collect  her  claim.  The  fact  that  they  were  not  written 
by  her  own  hand,  but  by  an  agent  who  was  acting  under  instructions 
received  through  her  husband,  who  was  also  her  agent  in  the  same 
business,  affects  the  weight,  but  not  the  competenc}-,  of  the  evidence. 
1  Greenl.  Ev.  §  186  ;  Marshall  v.  Cliff,  4  Camp.  133  ;  Baring  v.  Clark, 
19  Pick.  220 ;  Woods  v.  Clark,  24  Pick.  35,  39 ;  Cooley  v.  Norton,  4 
Cush.  93  ;  Morse  v.  Connecticut  River  Railroad,  6  Gray,  450;  Haney 
V.  Donnelly,  12  Gray,  361  ;  Gott  v.  Dinsmore,  111  Mass.  45  ;  McAvoy, 
V.  Wright,  137  Mass.  207. 

There  is  nothing  in  the  adjudication  in  Pickert  r.  Hair,  146  Mass.  1, 
nor  in  the  language  of  the  opinion  as  applied  to  the  matters  then  under 
consideration,  which  is  at  variance  with  tlie  views  above  stated. 

The  letters  are  not  inadmissible  as  part  of  an  offer  to  compromise  a 
controverted  claim.  At  the  time  they  were  written  there  had  been  no 
intimation  on  the  part  of  the  defendant  that  the  plaintiff  would  not  be 
paid  all  that  she  thought  it  right  to  ask.  The  only  communication 
which  had  been  received  from  the  defendant  indicated  a  desire  to  ascer- 
tain the  truth,  as  if  for  the  purpose  of  promptly  paying  tlie  claim  if  it 
appeared  to  be  valid.  Exceptions  sustained. 

Lathrop,  J.  I  am  unable  to  concur  in  the  opinion  of  the  majority 
of  the  court. 

If  it  is  assumed  that  the  question  of  the  admissibility  of  the  first  two 
letters  written  bj-  the  clerk  of  the  attorney  for  the  plaintiff  is  open  on 
the  exceptions,  a  point  which  is  not  free  from  doubt,  and  if  it  is  also 
assumed  that  the  evidence  sought  to  be  introduced  is  material,  a  point 
about  which  there  is  also  a  doubt,  as  the  evidence  for  the  plaintiff 
tended  to  show  that  there  was  ice  on  all  the  steps,  and  the  evidence  for 
the  defendant  tended  to  show  that  there  was  no  ice  on  an}'  of  the  steps, 
I  do  not  agree  that  the  letters  were  competent  evidence. 

There  was  no  evidence  that  the  letters  in  question  were  written  by  the 
direct  authorit}'  of  the  plaintiff,  or  b}'  her  consent,  or  even  with  her 
knowledge.  There  was  no  evidence  that  at  the  time  of  the  accident 
Mr.  Carroll  was  the  plaintiff's  attorney' ;  and  he  could  have  had  no 
personal  knowledge  on  the  subject,  as  it  appeared  that  he  was  retained 
as  an  attorne}'  at  law  after  the  accident  by  the  plaintiff's  husband,  and 
did  not  see  her  until  less  than  two  weeks  before  the  first  trial  of  this 
action,  which  was  long  after  the  letters  were  written. 

In  Pickert  v.  Hair,  146  Mass.  1,  the  question  as  to  the  effect  of  an 
admission  made  by  Mr.  Thayer,  an  attorney,  after  an  action  brought 


468         LOOMIS  V.    NEW  YORK,  ETC.  RAILROAD  CO.    [CHAP.  II, 

but  before  the  beginning  of  the  ease  then  before  the  court,  was  con- 
sidered. One  of  the  grounds  of  the  decision  was  thus  stated  on  page 
5  :  "  The  admission  was  not  made  by  INIr.  Tliayer  for  the  purpose  of 
dispensing  with  any  rule  of  practice,  or  with  the  proof  of  an}'  fact  in 
the  trial  of  the  action  already  brought,  or  of  the  actions  which  might  be 
brouglit  in  reference  to  the  attached  property'.  It  was  a  conversation 
relating  to  a  fact  in  controversy,  but  not  an  agreement  relating  to  the 
management  and  trial  of  a  suit,  or  an  admission  intended  to  influence 
the  procedure  in  the  pending  action,  or  in  any  other,  if  the  attachment 
was  not  discharged." 

In  support  of  these  propositions  several  cases  are  cited,  and  an 
examination  of  them  shows  that  the  doctrine  hitherto  established  is 
that  an  admission  by  an  attornej'  does  not  bind  his  client,  although  it 
relates  to  a  fact  in  controversy,  unless  it  is  made  for  the  purpose  of 
dispensing  with  some  rule  of  practice,  or  with  the  proof  of  a  fact  in  the 
trial  of  a  case,  or  is  an  admission  intended  to  influence  the  procedure 
in  the  action.  To  the  same  effect  are  the  following  cases  :  Rockwell  v. 
Taylor,  41  Conn.  55  ;  McKeen  v.  Gammon,  33  Maine,  187 ;  Cassels  v. 
Usry,  51  Ga.  621. 

The  opinion  of  the  raajorit}'  of  the  court  apparently  proceeds  upon 
the  theory  that  an  attorne}'  stands  in  a  different  relation  to  his  client 
before  an  action  is  brought  from  that  which  he  occupies  afterwards. 
But  no  case  is  cited  which  sustains  this  position.  The  general  rule 
that  an  attorney  cannot,  without  the  consent  of  his  client,  disclose  a 
confidential  communication  made  to  him  by  his  client,  applies  as  well 
to  communications  made  before  action  brought  as  afterwards.  See 
Foster  v.  Hall,  12  Pick.  89,  and  cases  cited. 

With  one  exception,  the  cases  cited  in  the  opinion  of  the  majority  of 
the  court  in  support  of  the  propositions  that  an  attorney  is  merelj-  an 
agent,  and  that  his  admission  binds  his  principal,  are  cases  of  mere 
agents,  and  not  of  attorney's.  The}'  seem  to  throw  no  light  on  the 
question  in  this  case. 

The  case  of  Marshall  y.  Clifl',  4  Camp.  133,  remains  to  be  considered. 
This  was  an  action  against  the  owners  of  a  vessel.  To  prove  the 
defendants  to  be  the  owners,  there  was  offered  in  evidence  an  under- 
taking in  the  following  form,  given  before  the  action  was  begun  by  the 
persons  who  were  afterwards  the  defendant's  attornej's  of  record:  "I 
hereb}'  undertake  to  appear  for  Messrs.  Thompson  and  Marshall,  joint 
owners  of  the  sloop  Arundel^  to  any  action  yon  maj'  think  fit  to  bring 
against  them."  This  was  held  by  Lord  Ellenborough  to  be  sufficient 
evidence.  But,  as  was  pointed  out  In'  Mr.  Justice  Parke,  in  AVagstaff 
V.  Wilson,  4  B.  &  Ad.  339,  the  undertaking  was  "  a  step  in  the  cause." 

I  am  authorized  to  state  that  Chief  Justice  Field  concurs  in  this 
opinion. 


SECT.  I.]  WHITFIELD    V.    LOKD    LE    DESPENCER.  469 


CHAPTER   III. 
THE  AGENT'S  RESPONSIBILITY  TO  STRANGERS. 


SECTION    I. 

Torts. 


Chief  Justice  Holt,  in  Lane  v.  Cotton,  12  Mod.  472,  488 
(K.  B.,  1701)1:  — 

It  was  objected  at  the  bar,  that  they  bave  this  remedy  against  Breese. 
I  agree,  if  they  could  prove  that  he  took  out  the  bills,  they  might  sue 
him  for  it ;  so  they  might  anybody  else  on  whom  they  could  fix  that 
fact :  but  for  a  neglect  in  him  they  can  have  no  remedy  against  him  ; 
for  they  must  consider  him  only  as  a  servant ;  and  then  his  neglect  is 
only  chargeable  on  his  master,  or  principal ;  for  a  servant  or  deputy, 
qiiatemcs  such,  cannot  be  charged  for  neglect,  but  the  principal  only 
shall  be  charged  for  it ;  but  for  a  misfeasance  an  action  will  lie  against 
a  servant  or  deput}',  but  not  quatenus  a  deputy  or  servant,  but  as  a 
wrong-doer.'^ 

Lord  Mansfield,  C.  J.,  in  Whitfield  v.  Lord  Le  Despencer,  2  Cowp. 
754,  765  (K.  B.,  1778):  — 

As  to  an  action  on  the  case  lying  against  the  party  realh'  offending, 
there  can  be  no  doubt  of  it ;  for  whoever  does  an  act  b}-  which  another 
person  receives  an  injury  is  liable  in  an  action  for  the  injury  received.^ 
If  the  man  who  receives  a  penny  to  carry  the  letters  to  the  post-office 
loses  any  of  them,  he  is  answerable  ;  so  is  the  sorter  in  the  business  of 
his  department ;  so  is  the  post-master  for  any  fault  of  his  own. 

1  s.  c.  11  Mod.  12,  1  Lord  Raym.  646,  1  Salk.  17,  Comyns,  100,  Carthew,  487, 
Holt,  582. 

The  passage  is  taken  from  a  dissenting  opinion  ;  but  the  disagreement  of  the  judges 
was  as  to  a  (juestion  not  dealt  with  in  this  passage,  namely,  the  question  whether 
the  Postmaster  General  is  responsible  for  the  acts  or  negligence  of  a  clerk  in  a 
post-office.  —  Ei>. 

*  The  same  distinction  was  taken  by  Coke,  counsel  for  the  defendant,  in  Marsh  » 
Astry,  Cro.  Eliz.  175  (1590),  s.  c.  1  Leon.  146.  — Ed. 

»  See  Sands  v.  Child,  3  Lev.  ,351,  352  (1693).  —Ed. 


470  STONE   V.   CARTWRIGHT.  [CHAP.  IIL 

STONE  ET  AL.   V.   CARTWRIGHT. 

King's  Bench.     1795. 

[6  T.R.^U.'] 

The  declaration  stated  that  the  plaintiffs  were  possessed  of  a  certain 
close  in  Tipton  in  the  county  of  Stafford,  and  also  of  a  dwelling  house, 
«&;c.,  there ;  that  the  defendant  was  possessed  of  a  certain  coal  mine 
under  the  surface  of  the  said  close  and  house,  &c. ;  and  that  the  de- 
fendant well  knowing  the  premises,  but  contriving,  &c.,  to  injure  the 
plaintiff,  &c.,  worked  and  caused  to  be  worked,  &c.,  his  said  mine  of 
coal  in  a  negligent,  incautious,  and  unskilful  manner,  and  neglected  to 
leave  necessary  and  sufficient  pillars,  «fcc.,  to  support  the  said  buildings 
and  premises  of  the  plaintiffs  and  the  soil,  «SiC. ;  by  reason  whereof  the 
surface  of  the  said  close  sunk  and  gave  wa}',  &c.,  and  the  buildings, 
&c.,  were  rent  and  rendered  dangerous.  It  appeared  at  the  trial  before 
Lord  Kenyon  at  Stafford  that  the  colliery  belonged  to  A.  M.  Ward,  an 
infant,  and  that  the  defendant  had  been  appointed  agent  and  manager 
thereof  under  the  Court  of  Chancer}' ;  that  he  employed  a  bailiff  under 
him  who  superintended  the  work  ;  that  he  hired  and  dismissed  the 
colliers  at  his  pleasure,  but  that  he  took  no  personal  concern  in  the 
business,  was  not  present  when  the  injury-  complained  of  was  done,  nor 
had  given  any  particular  orders  for  working  the  mine  in  the  manner 
which  had  occasioned  it.  Upon  this  evidence  Lord  Kenyon  was  of 
opinion  that  the  action  could  not  be  maintained  against  the  defendant, 
who  was  the  middle-man,  but  that  it  ought  to  have  been  brought  either 
against  the  person  who  actually  committed  the  trespass  or  concurred 
therein,  or  against  the  superior,  the  owner  of  the  colliery,  for  whose 
benefit  the  work  was  carried  on  ;  and  he  referred  to  a  case  of  Gwinne 
V.  Poole,  2  Lutw.  935.  The  plaintiffs  being  nonsuited, 
Russell  now  moved  to  set  aside  the  nonsuit. 

Lord  Kenyon,  C.  J.  There  is  no  pretence  whatever  for  imputing 
liability  to  the  defendant  in  this  action  ;  it  might  as  well  be  contended 
that  a  similar  action  would  lie  against  the  steward  of  another  for  all  the 
defaults  of  improper  conduct  of  the  men  employed  under  him  by  which 
any  other  person  received  damage.  In  all  these  cases  I  have  ever 
understood  that  the  action  must  either  be  brought  against  the  hand 
committing  the  injury,  or  against  the  owner  for  whom  the  act  was  done  ; 
but  it  was  never  heard  of  that  a  servant  who  hires  laborers  for  his 
master  was  answerable  for  all  their  acts.  The  present  defendant  has 
no  interest  in  the  colliery,  nor  was  it  worked  for  his  benefit ;  he  was 
no  more  than  a  steward  appointed  by  the  Court  of  Chancery.  His 
Lordship  mentioned  the  cases  of  Gwinne  v.  Poole,  2  Lutw.  935,  and 
Goodwin  u.  Gibbons,  4  Burr.  2108,  where  this  question  had  been 
considered. 


SECT.  I.]  HILL   V.   CAVERLY   ET   ALS.  471 

AsHHURST,  J.,  declared  himself  of  the  same  opinion. 

Grose,  J,  It  frequently  happens  that  a  person's  gardener  emplo3'S 
laborers  under  him,  yet  it  could  never  be  contended  that  on  that  account 
he  would  be  answerable  for  damage  done  by  them  in  the  course  of  their 
employment. 

Lawrence,  J.  If  the  plaintiffs  had  given  evidence  that  the  defend- 
ant had  particularly  ordered  those  acts  to  be  done  from  whence  the 
damage  had  ensued,  that  would  have  varied  the  case ;  but  no  such 
evidence  being  adduced,  I  think  the  opinion  delivered  at  the  trial  was 
perfectly  right.  Hule  refused.^ 


HILL  V.  JOHN  CAVERLY,  JOHN  WILLIAMS,  and  JOS. 

CAVERLY. 

Superior  Court  of  New  Hampshire.     1834. 

[7  N.  H.  215.] 

Trespass  on  the  case.- 

The  cause  was  tried  upon  the  general  issue,  at  January  term,  1834. 

It  appeared,  that  in  the  year  1794,  a  dam  was  made  and  a  saw-mill 
erected  at  the  outlet  of  Bow  Pond.  The  saw-mill  continued  there 
until  the  14th  March,  1832.  The  ground  upon  which  the  dam  was 
built  being  unfavorable,  it  broke  awa}'  three  or  four  times  prior  to 
1823. 

On  the  1st  December,  1822,  the  Dover  Manufacturing  Company 
became  the  owner  of  the  mill,  the  dam,  and  the  mill-privilege,  and  in 
the  years  1823  and  1824  caused  a  new  dam  to  be  erected,  eleven  feet 
higher  than  the  old  dam.  The  defendant,  Williams,  as  the  agent  of 
the  compan}',  superintended  the  erection  of  the  new  dam,  and  gave 
directions  respecting  it.  John  Caverly  also  directed  in  the  building  of 
the  dam,  as  an  agent  of  the  company  ;  and  both  John  and  Joseph 
Caverl}'  labored  in  constructing  it  as  servants  and  agents  of  the 
compan}'. 

Owing  to  the  nature  of  the  ground,  the  great  body  of  water,  and  the 
manner  of  its  construction,  the  dam  was  insufficient  and  insecure. 

The  said  Williams,  as  agent  of  the  said  company-,  and  John  Caverl}' 
under  him  as  the  servant  of  the  compan}',  controlled  the  gates  and 
dam  until  the  2d  December,  1829,  when  the  said  Dover  Manufacturing 
Company  conveved  all  their  interest  in  the  premises  to  the  Cocheco 
Manufacturing  Company.  From  that  time  up  to  the  14th  March, 
1832,  the  last  mentioned  company  controlled  and  used  the  water,  and 
the  said  John  Caverl}-  acted  as  their  agent  for  the  purpose. 

1  Ace. :  Brown  v.  Lent,  20  Vt.  529  (1848).  — Ed. 

3  The  reporter's  abstract  of  the  declaration  has  been  omitted.  —  Ed. 


472  HILL   V.   CAVERLY    ET   ALS.  [CHAP.  IIL 

On  the  12th  February,  1829,  the  Dover  Manufacturing  Company 
leased  to  John  Caverly  the  saw-mill  at  the  outlet  of  the  pond,  for  a 
term  which  had  not  expired  on  the  14th  March,  1832,  he  agreeing  to 
follow  the  directions  of  the  company'  in  everything  relating  to  the 
stoppage  or  flowuge  of  the  water  in  said  pond. 

For  some  time  prior  to  the  14th  March,  1832,  there  were  indications 
that  the  dam  was  defective  and  dangerous  ;  and  on  that  day,  b}^  reason 
of  its  defects,  it  broke  away,  and  thus  caused  the  destruction  of  the 
plaintiff's  property,  mentioned  in  his  declaration. 

The  court  being  of  opinion  that  upon  the  foregoing  case  the  action 
could  not  be  sustained  against  these  defendants,  directed  a  nonsuit, 
subject  to  the  opinion  of  this  court. 

Christie,  for  the  plaintiff. 

/.  Bartlett,  for  the  defendants. 

By  the  Court.  Richardson,  C.  J.  The  injur}'  of  which  the  plain- 
tiff' complains,  is,  that  the  defendants,  by  means  of  a  feeble  and  badly 
constructed  dam,  wrongfull}'  and  injurious'}'  raised  and  kept  up  the 
water  in  the  pond  twelve  feet  higher  than  was  lawful,  from  the  1st 
September,  1831,  to  the  14th  March,  1832,  by  reason  of  which  the 
water  broke  away  the  dam,  and  did  the  damage  stated  in  the  declara- 
tion. The  damage  is  not  alleged  to  have  resulted  from  an}'  defect  in 
the  dam,  rendering  it  unfit  to  answer  an}'  lawful  purpose  for  which 
it  was  erected,  but  from  raising  the  water,  by  means  of  the  dam, 
twelve  feet  higher  than  was  lawful.  The  action  is  founded,  then,  not 
on  any  negligence  of  the  defendants  in  the  construction  of  the  dam, 
but  upon  an  improper  use  of  it  between  the  1st  September,  1831,  and 
the  14th  March,  1832.  Such  being  the  nature  of  the  action,  it  is  clear 
it  is  not  maintained  by  the  evidence  against  Williams  and  Joseph 
Caverly.  They  had  no  concern  with  the  gates  of  the  dam  after  the  2d 
December,  1829. 

John  Caverly  stands  on  different  ground.  From  the  2d  December, 
1829,  until  the  dam  broke  away,  he  acted  as  the  agent  of  the  Cocheco 
Company  at  the  dam.  But  that  company  had  the  control  and  use  of 
the  water  during  the  whole  time  ;  and  he  had  contracted  with  the 
Dover  Company,  under  whom  the  Cocheco  Company  claimed  the  prem- 
ises, and  who  had  leased  the  saw-mill  to  him,  to  follow  the  directions 
of  the  lessors  in  everything  relating  to  the  stoppage  or  flowage  of  the 
water  in  the  pond. 

He  must,  then,  be  considered  as  the  mere  servant  of  the  Cocheco 
Company,  acting  in  all  he  did  under  the  immediate  direction  and  con- 
trol of  the  company,  or  their  agents. 

The  question  then,  is,  whether  the  facts  disclosed  in  the  case  render 
him  liable? 

Nothing  is  stated  in  the  case  which  shows  any  want  of  right  in  the 
Cocheco  Company  to  raise  the  water  to  the  height  it  was  raised.  If 
the  action  can  be  sustained  at  all,  it  must  be  on  the  ground  that 
it  was  imprudent  and  improper  to  raise  such  a  head  of  water  with 
such  a  dam. 


SECT.  I.]  DENNY   V.   THE    MANHATTAN    CO.  473 

When  a  servant,  by  the  command  of  his  master,  does  an  apparent 
wrong,  both  the  master  and  the  servant  are  liable.     BuUer's  N.  P.  47. 

And  when  a  servant,  in  the  absence  of  his  master,  went  into  an 
improper  place  with  a  coach  and  two  ungovernable  horses,  in  order  to 
train  them  there,  and  the  servant  not  being  able  to  govern  the  horses, 
they  ran  upon  an  individual  and  wounded  him,  —  it  was  held,  that 
both  the  master  and  the  servant  were  liable.  2  Lev.  172,  Michael 
V.  Alestree. 

When  a  servant,  b}'  command  of  his  master,  hires  hands  to  do  work, 
and  they  do  a  wrong,  the  master,  and  not  the  servant  who  hires  the 
wrong-doers,  is  liable.     G  D.  &  E.  411,  Stone  v.  Cartwright. 

A  servant  or  deputy  cannot  be  charged  for  mere  nonfeasance.  1 
Chitty's  PI.  72  ;  12  Mod.  488. 

Thus,  in  England  an  under-sheriff  is  a  mere  servant  of  the  sheriff, 
and  no  action  lies  against  the  under-sheriff  for  a  mere  breach  of 
duty.     Cowper,  403  ;  5  N.  H.  R.  456. 

Xo  action  can  be  maintained  against  a  servant,  unless  he  can  be 
considered  as  a  wrong-doer.  He  is  never  liable  for  any  negligence  of 
his  master. 

If  he  aids  or  assists  in  a  wrongful  act,  he  is  liable.  1  Wilson,  328, 
Perkins  v.  Smith. 

In  this  case,  John  Caverly  shut  the  gate,  and  left  it  shut  till  the 
dam  gave  wa}'.  The  shutting  of  the  gate  was  no  wrongful  act  to  any- 
body. The  owners  had  a  right  to  raise  a  head  of  water  as  high  as  the 
dam  would  safeh'  bear.  If  the  gate  ought  to  have  been  raised  sooner, 
that  was  business  of  the  owners,  and  not  of  John  Caverh'.  He  had  no 
authorit}'  to  raise  it,  except  when  directed  so  to  do. 

The  case  discloses  no  wrongful  act,  no  breach  of  duty,  in  John 
Caverly,  no  negligence  which  can  render  him  liable  to  this  plaintiff. 

Judgment  for  the  defendants. 


DENNY  AND  OTHERS,  TRUSTEES,  &c.,  V.  THE  MANHATTAN 

COMPANY. 

Supreme  Court  of  New  York.     1846. 

[2  Denio,  115.] 

Demurrer  to  declaration.  The  plaintiffs,  as  trustees  of  the  credi- 
tors of  Joseph  and  Andrew  Brown,  appointed  pursuant  to  proceedings 
by  attachment  instituted  against  them  as  non-resident  debtors,  on  the 
9th  day  of  November,  1836,  under  the  provisions  of  the  revised  stat- 
utes, sued  the  defendants  in  case  for  an  alleged  violation  of  dut}-  as  the 
agents  in  New  York  of  the  Planters'  Bank  of  Tennessee,  in  refusing  to 
permit  a  transfer  to  the  plaintiffs  on  the  transfer  book  of  the  Planters' 


474  DENNY   V.   THE   MANHATTAN   CO.  [CHAP.  III. 

Bank  kept  by  them,  of  two  hundred  and  eightj^-one  shares  of  the 
capital  stock  of  that  bank  alleged  to  belong  to  the  plaintiffs  in  their 
character  of  trustees.  The  declaration  alleged  that  the  defendants 
were  a  banking  corporation  organized  under  their  charter  and  transact- 
ing business  in  the  city  of  New  York,  and  that  the  Planters'  Bank  was 
a  corporation  created  by  the  legislature  of  Tennessee  with  a  capital 
of  $2,000,000,  divided  into  shares  of  $100  each.  It  then  averred  that 
the  defendants  at  the  several  times  afterwards  mentioned,  "were  the 
agents  in  the  said  city  of  New  York  of  the  said  Planters'  Bank  of 
Tennessee  for  the  registration  and  transfer  of  the  stock  of  such  bank 
and  the  payment  of  dividends  thereupon  in  said  city,  and  did  during 
all  the  time  last  aforesaid  keep  at  their  said  banking  house  in  the  city 
of  New  York,  a  set  of  books  for  the  registration  and  transfer  of  the 
said  stock  of  the  said  Planters'  Bank  of  Tennessee,"  to  wit,  &c.  It 
then  stated  with  particularit}'  the  title  of  the  trustees  to  the  shares 
claimed  hy  them,  which  was  substantially  as  follows :  The  Browns 
prior  to  the  attachment  against  them  were  the  owners  of  the  stock, 
and  held  two  certificates,  each  for  separate  portions  of  it,  issued  by  the 
defendants  as  the  lawfully  authorized  agents  of  the  Planters'  Bank, 
signed  by  the  cashier  and  by  a  clerk  of  the  defendants  under  the 
corporate  seal  of  the  Planters'  Bank,  which  certificates  stated  that  the 
Browns  were  entitled  to  the  shares  mentioned  in  the  certificates  respec- 
tively, which  were  declared  to  be  "  transferable  onl}-  at  the  bank  of  the 
said  defendants  on  the  surrender  of  the  certificate."  On  the  12th  day 
of  December,  1837,  A.  Brown,  as  survivor  of  J.  Brown  who  had  died, 
executed  under  his  seal  a  conve3'ance  and  transfer  of  the  stock  men- 
tioned in  both  certificates  to  Messrs.  Crockett  and  Park,  with  a  power 
of  attorne}'  contained  in  it,  to  a  clerk  of  the  defendants,  who  was 
named,  to  surrender  the  certificates  and  execute  a  formal  transfer. 
Crockett  and  Park,  a  few  days  afterwards,  executed  a  like  conveyance 
of  the  stock  to  the  plaintiffs  as  trustees  as  aforesaid,  with  a  power  of 
attorney  in  blank.  The  declaration  thereupon  avers  that  it  became 
and  was  the  duty  of  the  defendants  upon  the  production  and  surrender 
of  the  certificates  "to  suffer  and  permit"  the  stock  to  be  regularly 
transferred  upon  the  transfer  books  kept  at  the  defendants'  bank  to  the 
plaintiffs  as  trustees  under  the  act ;  and  that  the  plaintiffs,  to  wit,  on 
the  29th  of  September,  1838,  &c.,  exhibited  to  the  defendants  these 
evidences  of  their, right  to  the  stock,  and  also  a  letter  from  the  cashier 
of  the  Planters'  Bank  to  the  cashier  of  the  defendants'  compan}-  re- 
questing that  such  transfer  might  be  made,  and  offered  to  fill  up  the 
blank  in  the  last-mentioned  conveyance  with  the  name  of  a  clerk  of  the 
defendants,  and  to  do  all  necessary  acts,  &c.,  and  requested  the  de- 
fendants to  permit  the  transfer  to  be  made  ;  j'et  that  the  defendants 
not  regarding  their  duty,  &c.,  but  contriving  and  fraudulently  intend- 
ing, &c.,  would  not  sufl^er  or  permit  the  stock  to  be  transferred  to  the 
plaintiffs  on  the  books  so  kept  by  them,  &c.,  whereby  the  plaintiffs 
have  been  unable  to  obtain  a  suflScient  title  to  the  stock,  and  have  been 


SECT.  I.]  JOHNSON   V.   BARBER.  475 

prevented  from  selling  and  disposing  of  it,  whereby  it  has  become  of 
no  value  to  the  plaintitfs. 

The  foregoing  is  the  substance  of  the  first  count.  There  were  four 
other  counts  substantially  like  the  first,  but  with  some  additional  aver- 
ments not  material  to  the  point  determined  by  the  court. 

The  defendants  demurred  to  the  declaration,  assigning  special 
causes,  objecting  among  other  things  that  the  declaration  did  not  show 
any  valid  title  in  the  plaintiffs  as  trustees  to  the  stock  in  question,  and 
that  the  defendants  were  not  liable  to  the  plaintiffs  for  acts  done  or 
omitted  by  them  as  agents  of  the  Planters'  Bank  ;  and  that  if  they 
were  liable  at  all  the  action  ought  to  have  been  assumpsit.     Joinder. 

S.  P.  Staples  and  S.  Stevens,  for  the  defendants. 

S.  A.  Foot,  for  the  plaintiffs. 

Per  Curiam.  We  entertain  a  pretty  strong  impression  that  the 
plaintiffs  have  failed  to  show  a  good  title  to  the  stock  :  but  our  decision 
will  be  put  upon  another  ground,  concerning  which  we  have  had  no 
doubt  from  the  moment  the  case  was  opened.  If  the  plaintiffs  have  a 
cause  of  action  against  any  one,  it  is  not  against  the  defendants,  but 
against  the  Planters'  Bank  of  Tennessee.  The  defendants  were  not 
the  agent  of  the  plaintiffs,  and  owed  them  no  dut}'.  They  were  the 
agent  of  the  Planters'  Bank ;  and  for  a  neglect  to  discharge  their 
agency,  the}'  are  answerable  to  their  principal  and  to  no  one  else.  If 
third  persons  are  injured  by  the  neglect  of  a  known  agent,  the  rule  is 
respondeat  superior,  and  generally  the  action  must  be  brought  against 
the  principal.  Judgment  for  defendants} 


JOHNSON,    Impleaded,    «&c.,  Plaintiff   in    Error,   v.   BARBER, 
Defendant  in  Error. 

Supreme  Court  of  Illinois.     1849. 

[10  111.  425.] 

Trespass  upon  the  case,  in  the  Kane  Circuit  Court,  brought  by  the 
defendant  in  error  against  the  plaintiff  in  error  and  one  John  Johnson, 
for  firing  a  prairie,  &c.,  and  heard  before  the  Hon.  John  De  Caton  and 
a  jury,  at  the  April  term,  1847.  The  defendants  pleaded  the  general 
issue. 

During  the  progress  of  the  trial,  the  counsel  for  the  defendants  asked 
the  court  to  give  several  instructions  to  the  jur}',  some  of  which  were 
refused  and  others  given  with  a  qualification.  The  following  is  the  bill 
of  exceptions  taken  in  the  case  :  — 

"Be  it  remembered  that,  on  the  trial  of  this  cause,  the  counsel  for 
the  defendants  asked  the  court  to  instruct  the  jury  as  follows  :  — 

1  Affirmed  in  the  Court  of  Errors,  5  Denio,  639  (1846).  —  Eu. 


476  JOHNSON   V.    BARBER.  [CHAP.  IIL 

"1.  The  court  will  please  instruct  the  jury,  that  they  must  be  satisfied 
from  the  evidence  that  John  Johnson  was  the  agent  of  Peter  Johnson, 
employed  in  and  about  his  business,  and  that  he,  John,  was  and  did  act 
within  the  scope  of  his  employment  at  the  time  he  set  fire  to  the  prairie, 
or  he,  Peter  Johnson,  is  not  liable,  and  they  will  acquit  him,  which 
instruction  was  given  by  the  court,  with  the  following  qualification : 
'  This  is  the  law  so  far  as  Peter  Johnson  is  sought  to  be  made  liable  as 
master  or  principal  for  the  acts  of  John  Johnson.' 

"2.  If  John  Johnson  transcended  his  authority  given  by  said  Peter 
Johnson,  then  he,  said  Peter,  is  not  liable,  and  they,  the  jury,  shall 
acquit  him.  This  instruction  was  given  by  the  court  with  the  same 
qualification  as  above. 

"  3.  The  principal  is  not  liable  for  the  tortious  acts  of  the  agent, 
although,  at  the  time  such  tortious  acts  were  committed  by  the  agent, 
he  was  engaged  and  employed  in  and  about  the  business  of  the  principal, 
unless  he,  the  agent,  in  so  doing,  is  carrying  out  the  instructions  of  the 
principal,  or  he,  the  principal,  subsequently'  assents  to  it.  This  in- 
struction was  given  by  the  court  with  the  following  qualification  :  '  Yet 
the  principal  may  be  liable  for  the  acts  of  the  servant  or  agent,  while 
doing  the  work  of  the  principal  or  master  without  the  instruction  of  the 
principal  to  do  the  particular  tortious  act.' 

"  4.  The  plaintiff  is  not  entitled  to  recover  of  the  defendants  unless  he 
proves  all  the  material  averments  in  his  declaration,  and  the  loss  he,  the 
plaintiff,  has  sustained,  occasioned  in  consequence  of  the  negligence  of 
the  defendants  in  manner  and  form  as  in  the  said  plaintiff's  declaration 
mentioned.     This  instruction  was  given  by  the  court. 

"5.  If  the  injury  is  the  effect  of  negligence  in  both  parties,  without  any 
intentional  wrong  or  gross  negligence  on  the  part  of  the  defendants, 
then  he,  the  plaintiff,  cannot  recover  or  maintain  his  action,  and  the  jury 
should  find  for  the  defendants.  This  instruction  was  given  by  the  court. 
"6.  It  is  for  the  plaintiff  to  prove  that  the  agent  acted  with  the  assent 
or  under  the  directions  of  the  principal  when  he  commits  the  tortious 
acts,  and  that  it  cannot  be  presumed,  although  he  is  in  the  employ  of 
the  principal,  and  unless  it  is  proved  they  must  acquit  the  principal. 
This  instruction  was  given  with  the  following  qualification  :  '  This  must 
be  understood  so  far  as  it  is  sought  to  recover  for  a  tortious  act  of 
servant  or  agent  acting  in  relation  to  the  principal  or  master.' 

"  7.  The  plaintiff  cannot  recover  against  both  of  the  defendants,  for  if 
John  Johnson  acted  under  the  instructions  and  directions  of  Peter  John- 
son, then  he,  Peter,  is  alone  liable.  If  John  Johnson  acted  contrary  to 
the  direction  of  Peter  Johnson,  then  he,  Peter,  is  not  liable,  and  they 
must  acquit  him.     This  instruction  was  refused  by  the  court.^  .  .  . 

"  To  the  refusal  of  the  court  to  give  said  instructions,  and  in  giving 
the  said  qualifications  to  the  instructions  given,  .  .  .  the  defendants 
excepted.  ..." 

1  The  statement  and  the  opinion  have  been  abbreviated  by  omitting  passages  not 
dealing  with  Agency.  —  Ed. 


BECT.  I.]  JOHNSON   V.    BARBER.  477 

The  jury  returned  a  verdict  against  the  defendants.  .  .  .  The  defend- 
ants then  entered  a  motion  for  a  new  trial,  which  the  court  overruled, 
and  rendered  a  judgment  upon  the  verdict  of  the  jury. 

£.  W.  Tracy,  for  the  plaintiff  in  error. 

W.  D.  Barry  and  0.  Peters^  for  the  defendant  in  error. 

The  opinion  of  the  court  was  delivered  by  — 

Treat,  C.  J.^  The  court  properly  qualified  the  first,  second,  and 
sixth  instructions.  The  instructions,  as  demanded,  assumed  that  the 
relation  of  master  and  servant  existed  between  the  defendants.  The 
modification  confined  the  instructions  to  such  a  state  of  case. 

No  error  was  committed  in  adding  the  qualification  to  the  third 
instruction.  The  principal  is  liable  to  third  persons  for  the  frauds, 
torts,  and  negligences  of  the  agent,  even  though  the  conduct  of  the 
agent  is  without  his  participation  or  consent,  provided  the  act  is  done 
in  the  course  of  the  employment,  and  is  not  a  wilful  departure  from  it. 
Story  on  Agency,  §  452  et  seq. ;  Bush  v.  Steinman,  1  Bosanquet  and 
Puller,  40-i;  Wright  v.  Wilcox,  19  Wend.  343;  Foster  v.  Bank,  17 
Mass.  479.  If  one  of  the  defendants,  while  engaged  in  the  prosecution 
of  the  business  of  the  other,  carelessly  or  negligently  set  fire  to  the 
prairie,  or  even  purposeh',  with  a  view  to  benefit  or  protect  the  interests 
of  the  emplo3-er,  the  latter  would  be  liable  for  the  consequences  ;  but  if 
he  set  out  the  fire  from  motives  of  malice  or  wantonness,  the  principal 
would  not  be  liable,  for  that  would  be  an  abandonment  of  the  business 
of  the  agency.  The  instruction,  as  modified  b}'  the  court,  stated  the 
law  correctl}'. 

The  seventh  instruction  was  clearl}'  wrong.  If  the  act  complained  of 
was  illegal,  the  fact  that  one  of  the  defendants  committed  it  under  the 
direction  of  the  other,  did  not  shield  him  from  responsibility,  but  both 
were  equally  liable  to  the  party  injured,  as  well  the  one  who  did  the 
act  as  the  one  who  procured  it  to  be  done.  All  concerned  in  the  com- 
mission of  an  unlawful  act  are  responsible  for  the  consequences.  Admit 
the  principle  asserted  by  this  instruction,  and  ever\'  person  charged 
with  the  commission  of  an  act  prohibited  by  law  could  excuse  himself 
by  showing  that  he  acted  in  obedience  to  the  command  or  under  the 
direction  of  another.  Such  a  doctrine  would  be  subversive  of  private 
rights,  and  detrimental  to  the  public  interests.  .   .   . 

Judgment  affirmed? 

1  Trumbull,  .J.,  did  not  sit  in  this  case.  —  Rep. 

2  On  joinder  of  defendants,  see  Wright  v.  Wilcox,  ante,  p.  118;  Phelpe  v.  Wait,  30 
N.Y.  78  (1864).— Ed. 


478  BELL   V.   JOSSELYN.  [CHAP.  UL 


BELL  V.   JOSSELYN. 
Supreme  Judicial  Court  of  Massachusetts.     1855. 

[3   Gray,  309.] 

Action  of  tort  for  negligent!}*  causing  water  to  be  admitted  to  a 
water  pipe  in  the  second  stor}-  of  a  building,  so  that  it  flowed  through 
and  from  that  pipe  into  the  shop  of  the  plaintiff  in  the  lower  story. 

At  the  trial  at  January  term,  1854,  of  the  Court  of  Common  Pleas, 
before  Wells,  C.  J.,  there  was  evidence  tending  to  show  that  this 
building  was  one  of  a  block  which  belonged  to  the  defendant's  wife, 
but  which  he  managed,  executing  leases,  receiving  rents,  and  making 
repairs  in  his  own  name  ;  that  the  Cochituate  water  was  supplied  to 
this  block  b}'  one  main  pipe,  and  distributed  by  branches  to  the  several 
tenements ;  that  one  Frost  was  tenant  at  will  of  the  room  over  the 
plaintiff's  shop,  and  had  agreed,  in  part  payment  for  his  rent,  to  pay 
the  water  rates  for  the  whole  block,  but  had  neglected  to  do  this,  and 
suffered  the  waste  pipe  from  his  sink  to  get  clogged  ;  that  the  water 
commissioners  of  the  city  of  Boston  had  therefore  cut  off  the  supply 
of  water  from  the  block  ;  that  the  defendant,  being  informed  that  one 
of  the  tenants  wanted  the  water,  went  to  the  water  commissioners, 
paid  the  rates,  became  responsible  for  them  for  the  future,  and  directed 
the  water  to  be  let  on,  which  was  done ;  and  that  the  faucet  in  Frost's 
room  was  left  open,  so  that  the  water,  after  filling  the  sink,  overflowed, 
and  soaked  through  the  floor  into  the  plaintiff's  shop  and  damaged  his 
property. 

The  defendant  contended  that  the  action  could  not  be  maintained 
against  him,  because  he  was  an  agent,  acting  within  the  scope  of  his 
authority.  But  the  court  ruled  that  his  being  an  agent  in  a  case  like 
the  present,  would  not,  in  itself,  and  standing  alone,  be  a  defence  to 
this  action. 

The  defendant  then  contended  that  an  agent  could  not  be  held  liable, 
when  acting  within  the  scope  of  his  authorit}',  for  a  mere  nonfeasance  — 
which  he  contended  this  was  —  nor  for  any  negligence  while  acting 
within  the  scope  of  his  authority.  But  the  court  ruled  that  the  direc- 
tion to  the  water  commissioners  to  let  on  the  water,  was  not  a  nonfea- 
sance, but  a  positive  act ;  and  if  it  was  done  negligently,  and  without 
the  exercise  of  ordinary  care,  he  would  be  liable  for  an}-  injury  occa- 
sioned b}-  the  want  of  ordinarj'  care. 

The  defendant  further  contended  that  he  could  not  be  liable  for  want 
of  care  in  Frost's  room,  while  the  tenanc}'  of  Frost  continued.  But 
the  court  ruled  that  Frost's  tenancy  would  not,  of  itself,  be  a  defence 
to  the  action  ;  but  would  diminish  the  amount  of  care  which  could  be 
reasonabl}'  required  of  the  defendant  in  relation  to  the  premises  which 
Frost  occupied. 


SECT.  I.]  BENNETT   V.    BAYES.  479 

"  The  court  instructed  the  jury  that,  to  enable  the  plaintiff  to  recover, 
he  must  prove  four  things:  1st.  That  tiie  defendant  had  the  general 
management  and  charge  of  the  premises;  2d.  That  the  directing  of 
the  letting  on  of  the  water  was  the  cause  of  the  injury  ;  3d.  That  in 
ordering  the  letting  on  of  the  water,  without  first  ascertaining  that  the 
faucet  in  Frost's  room  was  properly  turned,  the  defendant  was  guilt}'  of 
a  want  of  ordinar}-  care,  that  is,  such  care  as  a  man  of  ordinary  pru- 
dence would  exercise  in  his  own  affairs  ;  4th.  That  the  plaintiff  was  in 
the  exercise  of  ordinary  care  when  he  met  with  the  injur}'." 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

C.  E.  Allen  &  A.  0.  Allen,  for  the  defendant. 

S.  E.  Sewall,  for  the  plaintiff. 

Metcalf,  J.  Our  opinion  is,  that  the  rule  of  law  on  which  the 
defendant  attempts  to  sustain  these  exceptions,  is  not  applicable  to 
this  case.  Assuming  that  he  was  a  mere  agent,  yet  the  injury  for 
which  this  action  is  brought  was  not  caused  by  his  nonfeasance,  but  b}' 
his  misfeasance.  Nonfeasance  is  the  omission  of  an  act  which  a  person 
ouglit  to  do  ;  misfeasance  is  the  improper  doing  of  an  act  which  a  per- 
son might  lawfully  do  ;  and  malfeasance  is  the  doing  of  an  act  which  a 
person  ought  not  to  do  at  all.  2  Inst.  Cler.  107  ;  2  Dane  Ab.  482  ;  1 
Chit.  PI.  (6th  Amer.  ed.)  151  ;  1  Chit.  Gen.  Pract.  9.  The  defendant's 
omission  to  examine  the  state  of  the  pipes  in  the  house,  before  causing 
the  water  to  be  let  on,  was  a  nonfeasance.  But  if  he  had  not  caused 
the  water  to  be  let  on,  that  nonfeasance  would  not  have  injured  the 
plaintiff.  If  he  had  examined  the  pipes  and  left  them  in  a  proper  con- 
dition, and  then  caused  the  letting  on  of  the  water,  there  would  have 
been  neither  nonfeasance  nor  misfeasance.  As  the  facts  are,  the  non- 
feasance caused  the  act  done  to  be  a  misfeasance.  But  from  which  did 
the  plaintiff  suffer  ?  Clearly  from  the  act  done,  which  was  no  less  a 
misfeasance  b}'  reason  of  its  being  preceded  b}'  a  nonfeasance. 

The  instructions  to  the  jur}'  were  sufficiently  favorable  to  the  defend- 
ant ;  and  the  jury,  under  those  instructions,  must  have  found  all  the 
facts  necessary  to  the  maintenance  of  the  action. 

Exceptions  overruled. 


BENNETT  v.   BAYES,   PENNINGTON,   and  HARRISON. 

Exchequer.     1860. 

[5  H.  i<-  N.  391.] 

The  first  count  of  the  declaration  was  in  trespass  for  breaking  and 
entering  the  plaintiff's  dwelling-house  and  disturbing  the  plaintiff  and 
his  family  therein,  and  seizing  and  taking  the  plaintiff's  goods.  The 
second  count  was  in  trover.     The  third  count  stated,  that  the  plaintiff 


480  BENNETT    V.   BAYES.  [CHAP.  IIL 

being  tenant  of  a  dwelling-house  and  premises  to  certain  persons,  and 
there  being  certain  arrears  of  rent  due  from  him  to  such  persons  in 
respect  thereof,  the  defendants,  for  and  on  behalf  of  such  persons,  took 
and  carried  awa}'  the  plaintiff's  goods  in  the  name  of  a  distress  for  the 
said  arrears,  and  under  color  thereof  improperly  extorted  from,  and 
forced  and  obliged  the  plaintiff  to  pay,  over  and  above  the  said  arrears 
of  rent  and  all  lawful  charges,  a  large  sum  of  money  ;  and  unlawfully 
caused  and  forced  the  plaintiff  to  pay  divers  exorbitant,  excessive,  and 
improper  charges  for  and  in  respect  of  the  said  distress. 

Plea. —Not  guilty:  by  Statute  11  Geo.  11.  c.  19,  §  21.  — Issue 
thereon.^  .   .   . 

The  learned  judge  left  the  case  to  the  jur}',  who  found  a  verdict  for 
the  plaintiff  for  £97  19s.  6d.,  including  £35  damages  for  the  unlawful 
entry  of  the  plaintifl's  house  ;  and  leave  was  reserved  to  the  defendants, 
Ba3'es  and  Pennington,  to  move  to  enter  a  verdict  for  them. 

Monk,  in  last  Michaelmas  Term,  obtained  a  rule  nisi  accordingly, 
on  the  ground  that  no  count  of  the  declaration  was  proved  against 
them  ;  nor  an}'  evidence  given  to  go  to  the  jury  against  them  ;  and  that 
they  were  not  liable  for  the  act  of  Harrison  ;  that  this  particular  action 
could  not  be  sustained  against  any  of  the  defendants  ;  and  that  no 
sufficient  tender  of  the  rent  and  expenses  was  proved. 
Brett^  showed  cause. 
Quait),  in  support  of  the  rule. 

Bramwell,  B.,  now  said  :  This  was  a  rule  to  enter  a  verdict  for  the 
defendants  Bayes  and  Pennington.  The  material  facts  are  these  :  The 
plaintiff  was  tenant  of  a  house  at  Liverpool,  belonging  to  two  persons 
who  resided  in  London.  The  defendants,  Bayes  and  Pennington,  were 
in  partnership  as  painters  and  plumbers,  and  were  agents  for  the  col- 
lection of  the  rent  and  management  of  the  property'  of  these  persons 
at  Liverpool.  The  defendant  Harrison  was  a  broker.  Bayes  and 
Pennington  signed  and  delivered  to  Harrison  a  warrant  of  distress  for 
rent  claimed  from  the  plaintiff.  At  the  time  when  they  issued  the  war- 
rant the  rent  was  due,  and  the  act  which  they  required  Harrison  to  do 
was  perfectly  lawful.  Afterwards,  and  before  Harrison  eflPected  any 
distress,  the  plaintiff  tendered  to  Bayes  and  Pennington  the  amount  of 
the  rent.  It  was  argued  that  the  tender  was  not  good,  because  the 
expenses  were  not  tendered  at  the  same  time.  But  no  authority  was 
adduced  (and  we  know  of  none)  for  the  purpose  of  showing  that  a  per- 
son intending  to  distrain  is  entitled  to  any  expenses  before  he  has 
actually  distrained  ;  and  therefore  we  hold  the  tender  good. 

However,  Bayes  and  Pennington  refused  the  sum  tendered,  and  after- 
wards Harrison  distrained  ;  and  the  question  is,  whether  Bayes  and 
Pennington  are  liable  for  that  act  of  Harrison.  No  question  arises  from 
the  fact  of  a  tender  having  been  also  made  to  Harrison.  The  matter 
may  be  rendered  intelligible  by  this  simple  mode  of  illustration:  Sup- 

^  The  reporter's  statement  of  the  facts  is  omitted.  —  Ed. 


SECT.  I.]  BENNETT   V.    BAYES.  481 

pose  Rayes  and  Pennington  had  pleaded  "  not  guilty,"  without 
putting  "  b}-  statute"  in  the  margin  of  the  plea,  would  they  have  had 
a  defence  to  this  action  ?  Therefore  the  question  is,  whether  the  act 
of  Harrison  was  the  act  of  Ba3-es  and  Pennington  ;  that  is  to  say,  an 
act  done  by  their  authorlt}',  so  that  in  law  they  are  responsible  for  it. 
Under  "  not  guilty"  the  question  would  be  the  same  whether  there  had 
or  had  not  been  a  tender  to  Harrison.  The  warrant  was  in  the  usual 
form,  and  was  signed  hy  Bayes  and  Pennington  for  the  landlords.  It 
occurred  to  my  brother  Chankell  and  mj'self,  who  together  with  my 
brother  Martin  heard  this  case,  that  it  was  doubtful  whether,  under  the 
circumstances,  Bayes  and  Pennington  could  be  liable  for  the  act  of 
Harrison,  —  whetlier  in  fact  they  were  anything  more  than  a  mere  con- 
duit-pipe for  communicating  authority  from  the  landlords  to  Harrison. 
For  my  own  part,  and  I  believe  I  may  say  for  my  brother  Channell, 
if  there  had  been  nothing  more  we  should  have  continued  to  entertain 
great  doubt  whether  they  would  have  been  liable.  It  is  certain  that  a 
messenger  who  delivers  a  letter  containing  a  warrant  of  distress,  not 
knowing  the  contents  of  the  letter,  is  not  responsil)le  ;  and  I  cannot 
help  thinking  that  if  a  servant  was  sent  with  this  message  to  a  broker, 
"  My  master  desires  you  to  distrain  for  rent  due  to  hira,"  the  servant 
would  not  be  liable  as  a  person  ordering  or  committing  the  trespass.  So, 
if  a  person  wrote  a  letter  in  these  terms,  "My  friend,  having  a  bad 
hand,  is  unable  to  write,  and  he  requests  me  to  write  and  tell  you  to 
distrain  on  his  tenant,"  it  is  difficult  to  say  that  a  person  so  writing 
would  be  liable  to  an  action.  But  in  order  to  show  that  our  doubt 
is  not  unfounded,  I  would  refer  to  Story  on  Agency,  sec.  313,  and  the 
cases  which  are  collected  and  extremeh'  well  stated  in  Smith's  Master 
and  Servant,  p.  216  ;  also  to  Sands  v.  Child,  3  Lev.  351.  That  was  an 
action  for  suing  in  the  admiralty  for  a  matter  done  on  the  laud,  and 
thereby  staying  the  plaintiff's  ship  bound  for  the  East  Indies.  There 
was  a  special  verdict,  and  it  was  found  "  that  all  this  was  done  bv  the 
defendants  as  agents  of  the  East  India  Compan}'."  After  judgment 
for  the  plaintiff  a  writ  of  error  was  brought,  and  it  was  argued  :  "  That 
this  whole  affair  being  transacted  on  behalf  of  the  company,  the  action 
ought  to  have  been  brought  against  the  company,  and  not  against  the 
defendants,  their  servants.  But  all  this  was  overruled  b}'  both  courts  ; 
for,  first,  this  is  not  like  the  case  in  Godbolt,  185,  where  one  sued  in 
the  admiralty  for  another,  by  a  warrant  of  attorne}',  as  his  agent:  for 
here  it  is  not  found  that  the}'  had  any  warrant  of  attornej',  and  they 
must  have  done  this  of  their  own  heads.  Secondly,  if  it  had  been 
done  by  warrant  of  attorne}-  from  the  corapan}",  yet  that  would  not 
excuse  the  matter,  for  the  warrant  of  no  man,  not  even  of  the  king 
himself,  can  excuse  the  doing  of  an  illegal  act ;  for  although  the  com- 
manders are  trespassers,  so  are  also  the  persons  who  did  the  fact."  [It 
is  put  there  on  their  doing  the  "  fact,"  as  it  is  called.]  The  same  doc- 
trine is  laid  down  by  Holt,  C.  J.,  in  his  judgment  in  Lane  v.  Cotton, 
12  Mod.  473,  488,  and  also  in  Thompson  v,  Gibson,  7  M.  &  W.  456, 


482  BENNETT   V.    BAYES.  [CHAP.  III. 

and  Perkins  v.  Smith,  1  Wils.  328.  The  marginal  note  of  the  latter 
case  is:  "Trover  lies  against  a  servant  who  disposes  of  goods,  the 
property  of  another,  to  his  master's  use,  whether  he  has  any  authority 
or  not  from  his  master  for  so  doing."  The  Chief  Justice  said  :  "  The 
point  is,  whether  tlie  defendant  is  not  a  tort-feasor,  for  if  he  is  so  no 
authority  that  he  can  derive  from  his  master  can  excuse  him  from 
being  liable  in  this  action.^  [Hughes,  the  bankrupt,  bad  no  right 
to  deliver  these  goods  to  Smith.  The  gist  of  trover  is  the  detainer 
or  disposal  of  goods,  which  are  the  property  6f  another,  wrongfully  ; 
and  it  is  found  that  the  defendant  disposed  of  them  to  his  master's  use, 
which  his  master  could  give  him  no  authority  to  do."  That  is  an 
authority  for  the  purpose  of  showing  that  the  defendant  in  such  case 
would  be  liable  because  it  was  his  act.  Now,  it  was  said  that  if  a 
man  commanded  a  person  to  go  to  a  third  person,  the  person  bringing 
the  message  would  be  liable  to  an  action.  I  think  it  quite  clear  tluit  no 
man  could  communicate  authority  to  another  to  commit  a  wrongful  act ; 
but  at  the  time  the  defendant  gave  this  order  the  act  was  not  wrongful. 
Therefore,  if  the  defendant  had  appeared  to  be  in  the  position  indi- 
cated in  these  cases,  my  brother  Channels  and  I  should  have  been,  I 
think,  rather  confirmed  in  our  doubts  than  otherwise.]  It  seems  to  us, 
however,  that  the  matter  is  not  purely  one  of  law,  but  also  of  fact,  and 
upon  examination  of  all  the  circumstances  we  think  that  the  defend- 
ants, Bayes  and  Pennington  were  more  than  mere  transmitters  of 
authority  from  one  person  to  another,  and  that  they  themselves  were 
actuallv  ordering  the  distress  to  be  made.  [It  is  not  necessary  to  say 
whether  they  would  have  been  liable  to  Harrison  for  his  costs  and  ex- 
penses, or  whether  he  would  have  been  liable  to  them  if  he  had  miscon- 
ducted himself  in  the  distress.  Very  probably,  however,  both  these  things 
would  be  so.  At  all  events,  we  look  on  these  defendants  as  the  per- 
sons who  are  themselves  ordering  the  act  to  be  done,  and  not  merely 
communicating  an  authority  to  a  third  person.]  If  that  be  so,  they  are 
as  much  the  persons  who  have  done  the  act  as  if  their  own  hands  had 
done  it,  and  the  result  is  that  the  rule  must  be  discharged.  This  is  the 
judgment  of  the  whole  court,  but  my  brother  Martin  does  not  parti- 
cipate in  the  doubt  which  my  brother  Channell  and  myself  entertained. 

Mule  discharged."^ 

1  According  to  the  report  in  5  H.  &  N.  391,  Bramwell,  B.,  here  said:  "There- 
fore a  servant  or  agent  is  liable  for  a  misfeasance  because  he  is  a  wrongdoer.  But  it 
is  said  that  the  issuing  the  warrant  of  distress  was  not  wrongful." 

The  passages  in  brackets  are  from  the  report  in  29  L.  J.  N.  s.  Ex.  224.  —  Ed. 

2  See  Bates  v.  PiUing,  6  B.  &  C.  38  (1826).  — Ed. 


SECT.  I.J  HOKNER   V    LAWRENCE.  483 


HORNER  V.  LAWRENCE. 
Supreme  Couut  of  New  Jersey.     1874 
[37  A^.  J.  L.  40.] 

On  certiorari  to  the  Burlington  Pleas. 

Argued  at  November  Term,  1873,  before  Justices  Bedle,  Dalrimple, 
and  ScuDDER. 

For  the  plaintiff  in  certiorari,  F.   Voorhees. 

For  the  defendant,  Kingman. 

The  opinion  of  the  court  was  delivered  bj- 

Bedle,  J.  Lawrence  had  two  hogs  in  pasture  upon  Lamb's  farm,  in 
a  field  adjoining  a  strip  of  woodland  owned  by  Forsyth,  but  separated 
by  a  worm  fence,  and  through  which  woodland  ran  the  Camden  and 
Burlington  County  Railroad.  Forsyth  procured  the  wood  upon  his 
land  to  be  cut,  and  employed  Horner  with  two  teams  to  haul  it  at  a 
certain  sum  per  day  for  each  team.  Forsyth  lived  about  five  miles  from 
the  woodland,  and  Horner  about  a  mile  from  Forsyth.  The  case  shows 
no  instruction  from  Forsyth  to  Horner  how  to  reach  the  woodland,  but 
it  appears  that  to  get  the  wood  it  was  necessary  to  go  through  the  field 
where  the  hogs  were  being  pastured.  There  are  no  facts,  however, 
showing  that  Forsyth  had  any  right  to  a  way  by  necessity'  over  Lamb's 
land.  Horner  saw  Lamb  and  got  permission  from  him  to  open  a  gap 
in  the  fence  at  a  certain  place,  but  with  directions  to  close  it  up  after 
he  went  in  and  after  he  came  out,  and  also  stating  "  that  there  were 
hogs  and  cattle  in  the  field  adjoining,  which  might  get  through  and  on 
to  the  railroad  and  get  killed."  Horner  opened  the  gap  and  passed 
through  with  his  two  teams  and  wagons  and  a  hired  man,  leaving  the 
gap  open  while  the  wagons  were  being  loaded,  but  closing  it  after 
driving  out.     This  occurred  twice  on  one  day  and  once  on  the  next. 

Without  referring  further  to  the  evidence,  the  case  shows  sufficient 
to  justif}'  the  Pleas  in  finding  that  the  hogs  escaped  through  the  gap, 
and  that  one  was  killed  and  the  other  injured  upon  the  railroad.  But 
it  is  said  that  there  can  be  no  recoverj',  because  Horner  was  the  agent 
or  servant  of  Forsyth,  and  that  the  failure  of  Horner  to  put  up  the  bars, 
was  a  mere  neglect  of  dut}^  in  the  course  of  such  agency,  for  which  he 
should  be  responsible  only  to  his  principal. 

Whether,  in  answer  to  that,  Horner  was  engaged  in  an  independent 
employment,  or  whether  the  immunity  of  an  agent  or  servant  to  a  third 
person  extends  beyond  mere  neglects  in  the  scope  of  an  agency  arising 
out  of  or  in  reference  to  matters,  in  the  nature  of  contracts  between 
the  principal  and  third  parties  (Shearm.  «fe  Red.  on  Neg.  §§  111,  112), 
or  what  the  exact  limit  of  responsibility  may  be,  need  not  now  be  set- 
tled, for  the  evidence  is  such  that  the  court  below  could  have  considered 
Horner  as  having  wilfully  left  down  the  bars,  and  thereby  became  re- 
sponsible for  his  own  tort,  without  reference  to  any  question  of  agencj-. 


484  OSBORNE   V.   MORGAN.  [CHAP.  IIL 

He  had  no  directions  from  Forsyth  how  to  go  upon  the  wood  lot,  or 
how  to  manage  with  the  fence.  It  does  not  appear  that  he  informed 
Forsyth  of  Lamb's  permission,  but  if  Horner  is  considered  as  Forsyth's 
servant  he  could  onl}-,  at  best,  stand  as  a  servant,  with  authority-  from 
Forsyth,  precisely  the  same  as  the  permission  given  by  Lamb,  and 
subject  to  the  direction  that  he  should  close  up  the  fence,  while  the 
wagons  were  being  loaded,  to  prevent  the  escape  of  the  hogs.  Now, 
according  to  the  fair  and  natural  conclusion  of  the  case,  Horner  pur- 
poselj-  left  down  the  fence  and  trusted  to  watching  the  gap,  so  as  to 
prevent  the  hogs  from  going  through,  if  the}'  should  attempt  it.  They 
escaped  his  vision,  no  doubt,  while  he  and  his  hired  man  had  forgotten 
their  sentr^'duty  at  the  gap.  His  conduct  was  not  mere  neglect,  —  it 
was  intentional  and  wilful  violation  of  his  authority.  It  was  his  own 
misfeasance,  for  which,  as  servant,  he  cannot,  in  any  respect,  claim 
exemption  against  the  party  injured. 

This  view  of  the  case  sustains  the  judgment  below,  and  it  should  be 
affirmed. 


OSBORNE  V.   MORGAN   and   others. 
Supreme  Judicial  Court  of  Massachusetts.     1881. 

[130  Mass.  102.] 

Gray,  C.  J.  The  declaration  is  in  tort,  and  the  material  allegations 
of  fact,  which  are  admitted  by  the  demurrer,  are  that  while  the  plaintiff 
was  at  work  as  a  carpenter  in  the  establishment  of  a  manufacturing 
corporation,  putting  up  by  direction  of  the  corporation  certain  parti- 
tions in  a  room  in  which  the  corporation  was  conducting  the  business 
of  making  wire,  the  defendants,  one  the  superintendent  and  the  others 
agents  and  servants  of  the  corporation,  being  employed  in  that  business, 
negligently,  and  without  regard  to  the  safety  of  persons  rightfully  in 
the  room,  placed  a  tackle-block  and  chains  upon  an  iron  rail  suspended 
from  the  ceiling  of  the  room,  and  suffered  them  to  remain  there  in  such 
a  manner,  and  so  unprotected  from  falling,  that  b}'  reason  thereof  they 
fell  upon  and  injured  the  plaintiff.  Upon  these  facts,  the  plaintiff  was 
a  fellow-servant  of  the  defendants.  Far  well  v.  Boston  &  Worcester 
Railroad,  4  Met.  49  ;  Albro  v.  Agawam  Canal,  6  Cush.  75  ;  Oilman  v. 
Eastern  Railroad,  10  Allen,  233,  and  13  Allen,  433  ;  Holden  v.  Fitch- 
burg  Railroad,  129  Mass.  268  ;  Morgan  v.  Vale  of  Neath  Railway,  5 
B.  &  S.  570,  736,  and  L.  R.  1  Q.  B.  149. 

The  ruling  sustaining  the  demurrer  was  based  upon  the  judgment 
of  this  court,  delivered  b}-  Mr.  Justice  Merrick,  in  Albro  v.  Jaquith,  4 
Gray,  99,  in  which  it  was  held  that  a  person  employed  in  the  mill  of  a 
manufacturing  corporation,  who  sustained  injuries  from  the  escape  of 
inflammable  gas,  occasioned  by  the  negligence  and  unskilfulness  of  the 


SECT.  I.]  OSBORNE   V.   MORGAN.  485 

superintendent  of  the  mill  in  the  management  of  the  apparatus  and 
fixtures  used  for  the  purpose  of  generating,  containing,  conducting, 
and  burning  the  gas  for  the  lighting  of  the  mill,  could  not  maintain  an 
action  against  the  superintendent.  But,  upon  consideration,  we  are  all 
of  opinion  that  that  judgment  is  supported  b}-  no  satisfactory-  reasons, 
and  must  be  overruled. 

The  principal  reason  assigned  was,  that  no  misfeasance  or  positive 
act  of  wrong  was  charged,  and  that  for  nonfeasance,  which  was  merely 
negligence  in  the  performance  of  a  dut}'  arising  from  some  express  or 
implied  contract  with  his  principal  or  employer,  an  agent  or  servant 
was  responsible  to  him  only,  and  not  to  an}-  third  person.  It  is  often 
said  in  the  books,  that  an  agent  is  responsible  to  third  persons  for 
misfeasance  onlj-,  and  not  for  nonfeasance.  And  it  is  doubtless  true 
that  if  an  agent  never  does  anything  towards  carrying  out  his  contract 
with  his  principal,  but  wholl}-  omits  and  neglects  to  do  so,  the  principal 
is  the  only  person  who  can  maintain  an}-  action  against  him  for  the 
nonfeasance.  But  if  the  agent  once  actually  undertakes  and  enters 
upon  the  execution  of  a  particular  work,  it  is  his  duty  to  use  reasonable 
care  in  the  manner  of  executing  it,  so  as  not  to  cause  any  injury  to 
tliird  persons  which  may  be  the  natural  consequence  of  his  acts;  and 
he  cannot,  by  abandoning  its  execution  midway  and  leaving  things  in  a 
dangerous  condition,  exempt  himself  from  liability  to  any  person  who 
suffers  injury  by  reason  of  his  having  so  left  them  without  proper  safe- 
guards. This  is  not  nonfeasance,  or  doing  nothing ;  but  it  is  mis- 
feasance, doing  improperly.  Ulpian,  in  Dig.  9,  2,  27,  9  ;  Parsons  v. 
Winchell,  5  Cush.  592  ;  Bell  v.  Josselyn,  3  Gray,  309  ;  Nowell  v.  Wright, 
3  Allen,  166  ;  Horner  o.  Lawrence,  8  Vroom,  46.  Negligence  and  un- 
skilfulness  in  the  management  of  inflammable  gas,  by  reason  of  which 
it  escapes  and  causes  injury,  can  no  more  be  considered  as  mere  non- 
feasance, within  the  meaning  of  the  rule  relied  on,  than  negligence  in 
the  control  of  fire,  as  in  the  case  in  the  Pandects  ;  or  of  water,  as  in 
Bell  V.  Josselyn  ;  or  of  a  drawbridge,  as  in  Nowell  v.  Wright,  or  of 
domestic  animals,  as  in  Parsons  v.  Winchell,  and  in  the  case  in  New 
Jersey. 

In  the  case  at  bar,  the  negligent  hanging  and  keeping  by  the  defendants 
of  the  block  and  chains,  in  such  a  place  and  manner  as  to  be  in  danger 
of  falling  upon  persons  underneath,  was  a  misfeasance  or  improper 
dealing  with  instruments  in  the  defendants'  actual  use  or  control,  for 
which  they  are  responsible  to  any  person  lawfully  in  the  room  and  injured 
by  the  fall,  and  who  is  not  prevented  by  his  relation  to  the  defendants 
from  maintaining  the  action.  Both  the  ground  of  action  and  the  meas- 
ure of  damages  of  the  plaintiff  are  different  from  those  of  the  master. 
The  master's  right  of  action  against  the  defendants  would  be  founded 
upon  his  contract  with  them,  and  his  damages  would  be  for  the  injury 
to  his  property,  and  could  not  include  the  injury  to  the  person  of  this 
plaintiff,  because  the  master  could  not  be  made  liable  to  him  for  such 
an  injury  resulting  from  the  fault  of  fellow-servants,  unless  the  master 


486  OSBORNE   V.    MORGAN.  [CHAP.  III. 

had  himself  been  guilty  of  negligence  in  selecting  or  employing  them. 
The  plaintiff's  action  is  not  founded  on  any  contract,  but  is  an  action 
of  tort  for  injuries  which,  according  to  the  coumion  experience  of  man- 
kind, were  a  natural  consequence  of  the  defendants'  negligence.  The 
fact  that  a  wrongful  act  is  a  breacli  of  a  contract  between  the  wrong- 
doer and  one  person  does  not  exempt  him  from  the  responsibility  for 
it  as  a  tort  to  a  third  person  injured  thereby.  Hawkesworth  v.  Thomp- 
son, 98  Mass.  77;  Norton  v.  Sewall,  106  Mass.  143;  May  v.  Western 
Union  Telegraph,  112  Mass.  90  ;  Grinnell  v.  Western  Union  Telegraph, 
113  Mass.  299,  305  ;  Ames  v.  Union  Railway,  117  Mass.  541  ;  Mulchey 
V.  Methodist  Religious  Society,  125  Mass.  487  ;  Rapson  v.  Cubitt,  9 
M.  &  W.  710  ;  George  v.   Skivington.  L.  R.  5  Ex.  1  ;  Parry  v.  Smith, 

4  C.  P.  D.  325  ;  Foulkes  v.  Metropolitan  Railway,  4  C.  P.  D.  267,  and 

5  C.  P.  D.  157.  This  case  does  not  require  us  to  consider  whether 
a  contractor  or  a  servant,  who  has  completed  a  vehicle,  engine,  or 
fixture,  and  has  delivered  it  to  his  employer,  can  be  held  responsible 
for  an  injury  afterwards  suffered  by  a  third  person  from  a  defect  in  its 
original  construction.  See  Winterbottom  v.  Wright,  10  M.  &  W.  109  ; 
Collis  V.  Selden,  L.  R.  3  C.  P.  495  ;  Albany  v.  Cunliff,  2  Comst.  165  ; 
Thomas  v.  Winchester,  2  Selden,  397,  408  ;  Coughtry  v.  Globe  Woollen 
Co.,  56  N.  Y.  124,  127. 

It  was  further  suggested  in  Albro  v.  Jaquith,  that  many  of  the  con- 
siderations of  justice  and  policy',  which  led  to  the  adoption  of  the  rule 
that  a  master  is  not  responsible  to  one  of  his  servants  for  the  injurious 
consequences  of  negligence  of  the  others,  were  equally  applicable  to 
actions  brought  for  like  causes  by  one  servant  against  another.  The 
onl}'  such  considerations  specified  were  that  the  servant,  in  either  case, 
is  presumed  to  understand  and  appreciate  the  ordinary  risk  and  peril 
incident  to  the  service,  and  to  predicate  his  compensation,  in  some 
measure,  upon  the  extent  of  the  hazard  he  assumes;  and  that  "the 
knowledge,  that  no  legal  redress  is  afforded  for  damages  occasioned  by 
the  inattention  or  unfaithfulness  of  other  laborers  engaged  in  the  same 
common  work,  will  naturally  induce  each  one  to  be  not  only  a  strict 
observer  of  the  conduct  of  others,  but  to  be  more  prudent  and  careful 
himself,  and  thus  by  increased  vigilance  to  promote  the  welfare  and 
safet}'  of  all."  The  cases  cited  in  support  of  these  suggestions  were 
Fai-well  V.  Boston  &  Worcester  Railroad,  4  Met.  49,  and  King  v.  Boston 
&  Worcester  Railroad,  9  Gush.  112,  each  of  which  was  an  action  by 
a  servant  against  the  master ;  and  it  is  hard  to  see  the  force  of  the  sug- 
gestions as  applied  to  an  action  by  one  servant  against  another  servant. 

Even  the  master  is  not  exempt  from  liability  to  his  servants  for  his 
own  negligence ;  and  the  servants  make  no  contract  with,  and  receive 
no  compensation  from,  each  other.  It  may  well  be  doubted  whether 
a  knowledge,  on  the  part  of  the  servants,  that  they  were  in  no  event 
to  be  responsible  in  damages  to  one  another,  would  tend  to  make  each 
more  careful  and  prudent  himself.  And  the  mention  by  Chief  Justice 
Shaw,  in  Farwell  v.  Boston  &  Worcester  Railroad,  of  the  opportunity 


SECT.  I.]  OSBORNE   V.   MORGAN.  487 

of  servants,  when  emplo3'ed  together,  to  observe  the  conduct  of  each 
other,  and  to  give  notice  to  their  common  employer  of  any  misconduct, 
incapacity,  or  neglect  of  duty,  was  accompanied  b}-  a  cautious  with- 
holding of  all  opinion  upon  the  question  whether  the  plaintiff  had  a 
remedy  against  the  person  actually  in  default ;  and  was  followed  by  the 
statement  (upon  which  the  decision  of  that  case  turned,  and  which 
has  been  atfirmed  in  subsequent  cases,  some  of  which  have  been  cited 
at  the  beginning  of  tljis  opinion),  that  the  rule  exempting  the  master 
from  liabilit}'  to  one  servant  for  the  fault  of  a  fellow-servant  did  not 
depend  upon  the  existence  of  any  such  opportunity,  but  extended  to 
cases  in  which  the  two  servants  were  employed  in  different  departments 
of  duty  and  at  a  distance  from  each  other.     4  Met.  59-61. 

So  far  as  we  are  informed,  there  is  nothing  in  any  other  reported 
case,  in  England  or  in  this  country,  which  countenances  the  defendants' 
position,  except  in  Southcote  v.  Stanle}-,  1  H.  &  N.  247  ;  S.  C.  25  L.  J. 
(N.  S.)  Ex.  339  ;  decided  in  the  Court  of  Exchequer  in  1856,  in  which 
the  action  was  against  the  master,  and  Chief  Baron  Pollock  and  Barons 
Alderson  and  Bramwell  severally  delivered  oral  opinions  at  the  close  of 
the  argument.  According  to  one  report.  Chief  Baron  Pollock  uttered 
this  dictum :  "Neither  can  one  servant  maintain  an  action  against 
another  for  negligence  while  engaged  in  their  common  employment." 
1  H.  «&;  N.  250.  But  the  other  report  contains  no  such  dictum,  and 
represents  Baron  Alderson  as  remarking  that  he  was  "  not  prepared  to 
say  that  the  person  actually  causing  the  negligence  "  (evidently  mean- 
ing "  causing  the  injur}',"  or  "  guilt}-  of  the  negligence  "),  "  whether 
the  master  or  servant,  would  not  be  liable."  25  L.  J.  (N.  S.)  Ex.  340. 
The  responsibility  of  one  servant  for  an  injury  caused  by  his  own  negli- 
gence to  a  fellow-servant  was  admitted  in  two  considered  judgments  of 
the  same  court,  the  one  delivered  by  Baron  Alderson  four  months  before 
the  decision  in  Southcote  v.  Stanley,  and  the  other  by  Baron  Bramwell 
eight  months  afterwards.  Wiggett  v.  Fox,  11  Exch.  832,  839  ;  Degg 
V.  Midland  Railway,  1  H.  &  N.  773,  781.  It  has  since  been  clearly 
asserted  by  Barons  Pollock  and  Huddleston.  Swainson  y.  Northeastern 
Railway,  3  Ex.  D.  341,  343.  And  it  has  been  affirmed  by  direct  adju- 
dication in  Scotland,  in  Indiana,  and  in  Minnesota.  Wright  r.  Rox- 
burg,  2  Ct.  of  Sess.  Cas.  (3d  series)  748  ;  Hinds  v.  Harbou,  58  Ind.  121  ; 
Hinds  y.Overacker,  66  Ind.  547;  Griffiths  v.  Wolfram,  22  Minn.  185. 

Exceptions  sustained. 

G.  F.  Verry  &  H.  L.  Parker,  for  the  plaintiff. 

W.  S.  B.  Hopkins  &  F.  T.  Blackmer  for  the  defendants.^ 

1  In  Delauey  v.  Rochereau,  34  La.  Ann.  1123,  1128  (1882),  Bermcdez,  C.  J.,  said  :  — 
"  At  common  law,  an  agent  is  personally  responsible  to  third  parties  for  doing 
something  which  he  ought  not  to  have  done,  but  not  for  not  doing  something  which 
he  ought  to  have  done,  the  agent,  in  tlie  latter  case,  being  liable  to  his  principal  only. 
For  non-feasance,  or  mere  neglect  in  the  performance  of  duty,  the  responsibility  there- 
for must  arise  from  some  express  or  implied  obligation  between  particular  parties 
standing  in  privity  of  law  or  contract  with  each  other.     No  man  is  bound  to  answer  for 


488  WEBER   V.    WEBER.  [CHAP.  IIL 


GEORGE  L.   WEBER  v.   CAROLINE  WEBER. 

Supreme  Court  of  Michigan.     1882. 

[47  Mich.  569.] 

Case.     Plaintiff  brings  error.     Reversed. 

M.  E.  Dotoling,  for  plaintiff  in  error. 

D.  C  Holbrooke  for  defendant  in  error. 

Campbell,  J.  Plaintiff  sued  defendant  in  case  for  making  false 
representations  to  him  concerning  the  freedom  from  encumbrance  of 
certain  land  which  she  sold  to  him  as  agent  for  her  husband  Henry 
Weber.  The  declaration  contains  full  averments  showing  the  purchase 
and  payment  to  have  been  made  in  reliance  on  these  representations,  — 
their  wilful  falsehood,  and  the  loss  of  the  entii-e  premises  by  sale  under 
the  mortgage  which  existed,  and  which  defendant  had  said  did  not  exist, 
b}'  declaring  that  there  was  no  encumbrance  whatever. 

Defendant  demurred  to  the  declaration  on  the  grounds  — firsts  that 
defendant  was  Henry  Weber's  wife  and  that  he  should  have  been  made 
co-defendant ;  second^  that  defendant  is  not  averred  to  have  been  in- 
terested in  the  property  ;  thirds  that  it  does  not  appear  the  represen- 
tations were  made  at  Henr}'  Weber's  request  and  by  his  authorit3' ;  and 
fourth,  that  the  mortgage  being  recorded  was  notice.  The  court  below 
sustained  the  demurrer,  and  gave  judgment  for  defendant. 

It  is  not  now  claimed  that  the  fact  that  the  mortgage  was  recorded 
was  of  any  importance.  Where  positive  representations  are  made  con- 
cerning a  title  for  fraudulent  purposes,  and  are  relied  on,  it  can  hardly 
be  insisted  that  what  would  be  merely  constructive  notice  in  the  absence 
of  such  declarations  will  prevent  a  person  from  having  the  right  to  rely 
on  statements  which  if  true  would  render  a  search  unnecessaiy.  And 
it  is  not  necessaril}'  true  that  a  recorded  mortgage  is  unpaid,  merely 
because  not  discharged. 

Neither  is  it  true  that  an  agent  is  exempt  from  liability  for  fraud 
knowingly  committed  on  behalf  of  his  principal.  A  person  cannot 
avoid  responsibility  merely  because  he  gets  no  personal  advantage 
from  his  fraud.  All  persons  who  are  active  in  defrauding  others  are 
liable  for  what  they  do,  whether  they  act  in  one  capacity  or  another. 
No  one  can  lawfully  pursue  a  knowingly-  fraudulent  employment ;  and 
while  it  may  be  true  that  the  principal  is  often  liable  for  the  fraud  of 

such  violation  of  duty  or  obligation  except  to  those  to  whom  he  has  become  directly 
bound  or  amenable  for  his  conduct. 

"Every  one,  whether  he  is  principal  or  agent,  is  responsible  directly  to  persons 
injured  by  his  own  negligence,  in  fulfilling  obligations  resting  upon  him  in  his  individual 
character  and  which  the  law  imposes  upon  him,  independent  of  contract.  No  man 
increases  or  diminishes  his  obligations  to  strangers  by  l)ecoming  an  agent.  If,  in  the 
course  of  his  agency,  he  comes  in  contact  with  the  person  or  property  of  a  stranger,  he 
is  liable  for  any  injury  he  may  do  to  either,  by  his  negligence,  in  respect  to  duties 
imposed  by  law  upon  him  in  common  with  all  other  men."  —  Ed. 


SECT.  1.]  FELTUS    V.    SWAN.  489 

his  agent  though  himself  honest,  his  own  fraud  will  not  exonerate  his 
fraudulent  agent.  Starkweather  v.  Benjamin,  32  Mich.  306  ;  Josselyn 
V.  McAllister,  22  Mich.  300. 

If  liable  at  all,  the  agent  may  as  well  be  sued  separatel}',  as  any 
other  joint  wrong-doer.  It  is  not  usually  necessary  to  sue  jointly  in 
tort.  And  we  do  not  think  that  under  our  present  statutes  the  case  of 
husband  and  wife  makes  any  different  rule  applicable.  At  common  law 
the  husband  was  liable  personally  for  his  wife's  torts,  and  she  could  not 
be  sued  without  him.  But  under  our  statutes  now,  that  liability  has 
been  abolished,  and  she  is  solely  responsible  for  them.  Comp.  L. 
§§  6129,  7382.  This  being  the  ease,  we  can  see  no  ground  for 
joining  them  in  a  suit,  unless  both  are  sued  as  wrong-doers.  The 
evident  purpose  of  the  law  was  to  put  him,  as  to  her  personal  wrongs, 
on  the  same  footing  with  an}'  third  person. 

The  demurrer  should  have  been  overruled.  The  judgment  below 
must  be  reversed,  with  costs  of  both  courts,  and  the  defendant  required 
to  answer  over,  within  twenty  da3S. 

The  other  Justices  concurred.^ 


FELTUS   ET   AL.   V.    SWAN. 
Supreme  Court  of  Mississippi.     1884. 

[62  Miss.  415.] 

Appeal  from  the  Circuit  Court  of  Wilkinson  Count}'.  Hon.  J.  B. 
Chrisman,  Judge. 

This  is  an  action  for  damages,  brought  on  September  3,  1884,  by 
J.  A.  V.  Feltus  and  others,  against  D.  D.  Withers  and  B.  P.  Swan. 
The  declaration  avers  that  the  plaintiffs  own  a  plantation  known  as 
Deer  Park,  and  that  defendant  Withers  owns  an  adjoining  plantation 
known  as  Lochdale,  "which  is  and  has  been  for  more  than  ten  years 
past  under  the  charge  and  control  of  defendant  Withers,  as  the  owner 
thereof,  and  defendant  B.  P.  Swan,  as  the  manager  and  agent  thereof, 
and  that  more  than  ten  years  ago  a  levee  was  built  b}'  the  respective 
owners  of  said  plantations,  and  from  thence  until  now  has  remained  for 

1  In  Cullen  v.  Thomson's  Trustees,  4  Macq.  424,  432-4.33  (1862),  Lord  Westbury 
said  :  "  Can  it  be  maintained  as  a  proposition  of  law  that  a  servant  who  knowingly 
joins  with  and  assists  his  master  in  the  commission  of  a  fraud  is  not  civilly  responsible 
for  the  consequences  ?  All  persons  directly  concerned  in  the  commission  of  a  fraud 
are  to  be  treated  as  principals.  No  party  can  be  permitted  to  excuse  himself  on  the 
ground  that  he  acted  as  the  agent  or  as  the  servant  of  another ;  and  the  reason  is 
plain,  —  for  the  contract  of  agency  or  of  service  cannot  impose  any  obligation  on 
the  agent  or  servant  to  commit  or  assist  in  the  committing  of  fraud."  In  the  same 
case,  at  p.  441,  Lord  Wexsleydale  said  :  "  In  some  cases  a  man  may  innocently  assist 
in  a  transaction  which  is  a  fraud  on  some  one.  Of  course,  such  a  person  cannot  be 
responsible  criminally  or  civilly."  —  Ed. 


490  FELTUS   V.    SWAN.  [CHAP.  III. 

the  joint  protection  thereof  against  high  waters,  and  it  has  always  been 
the  custom,  and  plaintiffs  were  entitled  to  have  the  waters  from  time 
to  time  collecting  behind  and  back  of  said  levee,  and  being  in  and  upon 
their  said  land,  from  rain,  sipage,  and  overflow,  drained  and  carried 
away  from  the  same  through  a  certain  drain,  cut  and  run  around,  in, 
and  through  said  Lochdale  plantation,  and  thence  off  of  plaintiffs'  said 
land,  and  that  it  was  the  dut}'  of  defendants,  owning  and  occupying 
the  adjoining  close  and  plantation  aforesaid,  to  open  the  said  drain, 
that  the  water  might  be  drained  off  of  plaintiffs'  land  aforesaid,  and 
plaintiffs'  land  could  onl^-  be  drained  through  defendants'  said  close 
and  i)lantation  ;  that  during  the  year  1884,  from  January-  1  to  Sep- 
tember 1,  large  quantities  of  water,  from  rain,  sipage,  and  overflow, 
collected  in  and  driven  back  upon  plaintifll's'  land,  were  obstructed  and 
prevented  from  running  off"  and  away  from  the  land  bj'  defendants' 
neglecting  and  refusing  to  open  the  drain  aforesaid,  which  it  was  their 
duty  to  do,  and  by  reason  of  such  neglect  and  refusal  the  aforesaid 
land  of  plaintiffs  for  the  time  aforesaid  was  rendered  unfit  to  cultivate, 
and  greatly  damaged,  etc." 

Swan  demurred  to  the  declaration  on  the  ground  that,  as  the  agent 
of  Withers,  he  was  not  liable  for  the  acts,  omission,  and  neglect  averred 
in  the  declaration.  The  court  sustained  the  demurrer,  and  the  plain- 
tiflJs  asked  leave  to  amend  their  declaration  bj-  inserting  words  therein 
charging  that  the  neglect  and  refusal  which  it  was  declared  produced 
the  damage  to  the  plaintiffs  "  was  malicious,  and  with  the  intention  of 
injuring  the  plaintiffs'  aforesaid  lands."  The  court  refused  to  grant 
such  leave,  and  dismissed  the  action  as  to  Swan.  The  plaintiffs  dis- 
missed as  to  Withers  and  appealed  against  Swan. 

C.  P.  Neilson  and  D.  C.  Bramlett^  for  the  appellants.  It  is  not 
clear  that  the  injur}*  complained  of  is  a  mere  non-feasance  of  the 
agent,  —  in  fact,  it  occurs  to  us  that  we  charge  a  positive  wrong. 
This  must  be  apparent  to  an\'  one  acquainted  in  theory  or  fact  with  the 
levee  system  of  the  Mississippi  River.  In  times  of  high  water,  back  of 
all  or  nearly  all  levees  large  qnantities  of  water  collect  to  the  height  of 
the  river  water  in  front,  and  this  back  water  must  be  drained  off  as  the 
river  recedes,  otherwise  it  is  more  damaging  than  to  have  welcomed 
the  overflow.  And  it  is  also  true  that  there  are  natural  drains  in  many 
sections,  through  which  only  the  water  from  a  large  area  of  land  may 
be  carried  off.  But  whellier  the  wrong  charged  is  a  misfeasance  or 
non-feasance,  we  contend  that  it  is  an  exception  to  the  general  rule 
which  exempts  a  servant  from  personal  liabilitv  to  a  third  person  for 
injuries  done  by  negligence  in  the  discharge  of  his  duties.  Here  is  a 
most  flagrant  outrage  done,  causing  great  damage,  which  was  alone  in 
the  power  of  appellee  and  Withers  to  avert,  and  the}"  are  equall}'  liable 
under  the  declaration  here,  and  were  properly  joined.  See  1  Wait's 
Act.  and  Def.  264-265  ;  Addison  on  Torts,  3d  ed.  933.  It  was  error  in 
the  court  below  to  deny  our  application  to  amend  our  declaration. 

Carson,  Shields  db  Carson,  for  the  appellee. 


SECT.  I.]  BAIRD    'V.    SHIPxMAN.  491 

Campbell,  C.  J.,  delivered  the  opinion  of  the  court. 

The  appellee,  being  a  mere  agent,  was  not  liable  for  an  omission  of 
dut}',  except  to  his  principal.  Story  Ag.  §§  308,  309  ;  Wharton  Ag. 
§§  535,  53G  ;  Dulap's  Paley's  Ag.  396. 

The  proposed  amendment  would  not  have  made  the  declaration  good, 
for  whatever  motive  operated  on  the  agent,  the  charge  against  him  was 
only  that  he  had  failed  to  do,  and  not  that  he  had  done  anything 
maliciousl}',  and  for  non-feasance  or  omission  to  act  at  all  the  agent  is 
answerable  only  to  his  employer.  Affirmed. 


BAIRD  ET  AL.  V.  SHIPMAN,  Administrator. 
Supreme  Court  of  Illinois.     1890. 

[132///.  16.] 

Appeal  from  the  Appellate  Court  for  the  First  District,  heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  Cook  county ;  the  Hon. 
Frank  Baker,  Judge,  presiding. 

The  following  opinion  of  the  Appellate  Court  fully  presents  the  ques- 
tions arising  upon  this  record  :  — 

Garnett,  p.  J.  "  This  is  an  appeal  from  a  judgment  for  damages^ 
founded  on  the  alleged  negligence  of  appellants,  bj-  which  the  death  of 
Joseph  Garnett,  appellee's  intestate,  is  said  to  have  been  caused.  The 
place  where  the  injur}-  happened  was  in  a  barn  situated  on  premises  on 
Michigan  avenue,  in  Chicago,  belonging  to  Aaron  C.  Goodman,  who 
was  then,  and  for  several  years  before,  a  resident  of  Hartford,  Con- 
necticut. Appellants  were  his  agents  for  renting  the  premises  during 
the  years  1884  and  1885,  and  during  both  years  were  carrying  on  the 
real  estate  business  in  Chicago.  On  the  trial,  evidence  was  given  tend- 
ing to  show  that  they  had,  in  fact,  complete  control  of  tlie  premises, 
with  the  residence  and  barn  thereon,  repairing  the  same  in  their  discre- 
tion, and  there  was  no  proof  that  in  such  matters  they  received  any 
directions  from  the  owner.  The  propert}'  was  rented  b}'  appellants 
to  Emma  R.  Wheeler  and  A.  R.  Tillman  from  April  1,  1884,  to  April 
30,  1885,  and  to  Emma  R.  AVheeler  from  May  1,  1885,  to  April  30, 
1886.  Both  leases  were  in  writing,  and  by  the  terms  of  each  lease 
the  tenants  covenanted  to  keep  the  premises  in  good  repair.  The 
tenant  in  the  last  lease  rented  the  premises  to  Nellie  E.  Pierce,  who 
occupied  the  same  from  April  28,  to  September,  1885.  The  evidence 
tends  to  prove  that  when  the  lease  was  made  to  Emma  R.  Wheeler,  the 
large  carriage  door  to  the  barn  was  in  a  very  insecure  condition,  and 
that  appellants,  through  one  Warner,  the  manager  of  their  renting 
department,  verbally  agreed  with  Mrs.  Wheeler  to  put  the  premises  in 
thorough  repair.     Nothing  was  done  to  improve  the  condition  of  the 


492  BAIIiD    V.    SHIFMAN.  [CHAP.  III. 

door,  and  on  June  12,  1885,  while  the  deceased,  an  expressman  bj' 
occupation,  was  engaged  in  delivering  a  load  of  kindling  in  the  barn, 
for  one  of  the  parties  living  in  the  liouse,  the  door,  weighing  about  four 
hundred  pounds,  fell  from  its  fastenings,  and  injured  him  to  such  an 
extent  that  he  died  the  next  da}". 

"Appellants  make  two  points:  First,  that  the  verdict  is  clearly 
against  the  weight  of  the  evidence  ;  second,  that  they  were  the  agents 
of  the  owner,  Goodman,  and  liable  to  him  only,  for  an}-  negligence 
attributable  to  them. 

"  There  is  nothing  more  than  the  ordinary  conflict  of  evidence  found 
in  such  cases,  presenting  a  question  of  fact  for  the  jury,  and  the  finding 
must  be  respected  b\'  this  court  in  deference  to  the  wGll-settled  rule. 

"  The  other  point  is  not  so  easily  disposed  of.  An  agent  is  liable  to 
his  principal  only  for  mere  breach  of  his  contract  with  his  principal. 
He  must  have  due  regard  to  the  rights  and  safet}'  of  third  persons. 
He  cannot,  in  all  cases,  find  shelter  behind  his  principal.  If,  in  the 
course  of  his  agenc}',  he  is  entrusted  with  a  dangerous  machine,  to 
guard  himself  from  personal  liability  he  must  use  proper  care  in  its 
management  and  supervision,  so  that  others  in  the  use  of  ordinary 
care,  will  not  suffer  in  life,  limb,  or  propert}'.  Suydam  v.  Moore,  8 
Barb.  358  ;  Phelps  v.  Wait,  30  N.  Y.  78.  It  is  not  his  contract  with  the 
principal  which  exposes  him  to,  or  protects  him  from,  liabilit}-  to  tliird 
persons,  but  his  common-law  obligation  to  so  use  that  which  he  con- 
trols as  not  to  injure  another.  That  obligation  is  neither  increased 
nor  diminished  b}'  his  entrance  upon  the  duties  of  agenc}',  nor  can  its 
breach  be  excused  by  the  plea  that  his  principal  is  chargeable.  Delaney 
V.  Rochereau,  34  La.  Ann.  1123. 

"If  the  agent  once  actually  undertakes  and  enters  upon  the  execu- 
tion of  a  particular  work,  it  is  his  duty  to  use  reasonable  care  in  the 
manner  of  executing  it,  so  as  not  to  cause  any  injur}-  to  third  persons 
which  may  be  the  natural  consequence  of  his  acts,  and  he  cannot,  by 
abandoning  its  execution  midway,  and  leaving  things  in  a  dangerous 
condition,  by  reason  of  his  having  so  left  them  without  proper  safe- 
guards.    Osborne  v.  Morgan,  130  Mass.  102. 

"A  number  of  authorities  charge  the  agent,  in  such  cases,  on  the 
ground  of  misfeasance,  as  distinguished  from  non-feasance.  Mechem, 
in  his  work  on  Agency  (sec.  572),  says:  'Some  confusion  has  crept 
into  certain  cases  from  failure  to  observe  clearly  the  distinction  between 
non-feasance  and  misfeasance.  As  has  been  seen,  the  agent  is  not 
liable  to  strangers  for  injuries  sustained  by  them  because  he  did  not 
undertake  the  performance  of  some  duty  which  he  owed  to  his  principal 
and  imposed  upon  him  by  his  relation,  which  is  non-feasance.  Mis- 
feasance may  involve,  also,  to  some  extent  the  idea  of  not  doing,  as, 
where  the  agent,  wliile  engaged  in  the  performance  of  his  undertaking, 
does  not  do  something  which  it  was  his  duty  to  do  under  the  circum- 
stances, —  does  not  take  that  precaution,  does  not  exercise  that  care, 
which  a  due  regard  for  the  rights  of  others  requires.     All  this  is  not 


SECT.  I.]  BAIRD    V.    SHIPMAN.  493 

doing,  but  it  is  not  the  not  doing  of  that  which  is  imposed  upon  the 
agent  merely  by  virtue  of  his  relation,  but  of  that  which  is  imposed 
upon  him  b}'  law  as  a  responsible  individual,  in  common  with  all  otlier 
members  of  society.  It  is  the  same  not  doing  which  constitutes  action- 
able negligence  in  any  relation.'  To  the  same  effect  are  Lottnian  v. 
Barnett,  0)2  Mo.  151)  ;  Martin  v.  Benoist,  20  Mo.  App.  263  ;  Harriman 
V.  Stowe,  57  Mo.  93  ;  and  Bell  v.  Josselyn,  3  Gray,  309. 

"  A  case  parallel  to  that  now  in  hand  is  Campbell  v.  Portland  Sugar 
Co.,  62  Me.  552,  where  agents  of  the  Portland  Sugar  Company  had  the 
charge  and  management  of  a  wharf  belonging  to  tlie  company,  and 
rented  the  same  to  tenants,  agreeing  to  keep  it  in  repair.  They  allowed 
the  covering  to  become  old,  worn,  and  insecure,  by  means  of  which  the 
plaintiff  was  injured.  The  court  held  the  agents  were  equally  respon- 
sil)le  to  the  injured  person  with  their  principals. 

"■  Wharton,  in  his  work  on  Negligence  (sec.  535),  insists  that  the 
distinction,  in  this  class  of  cases,  between  non-feasance  and  misfeas- 
ance, can  no  longer  be  sustained  ;  that  the  true  doctrine  is,  that  when 
an  agent  is  employed  to  work  on  a  particular  thing,  and  has  surren- 
dered the  thing  in  question  into  the  principal's  hands,  then  the  agent 
ceases  to  be  liable  to  third  persons  for  hurt  received  by  them  from  such 
thing,  though  the  hurt  is  remotelj'  due  to  the  agent's  negligence,  the 
reason  being,  that  the  causal  relation  between  the  agent  and  the  person 
hurt  is  broken  by  the  interposition  of  the  principal  as  a  distinct  centre 
of  legal  responsibilities  and  duties,  but  that  wherever  there  is  no  such 
interruption  of  causal  connection,  and  the  agent's  negligence  directly 
injures  a  stranger,  the  agent  having  liberty  of  action  in  respect  to  the 
injur}-,  then  such  stranger  can  recover  from  the  agent  damages  for  the 
injury.  The  rule,  whether  as  stated  b}'  Mechem  or  "Wharton,  is  suffi- 
cient to  charge  appellants  witli  damages  under  the  circumstances  dis- 
closed in  this  record.  They  had  the  same  control  of  the  premises  in 
question  as  the  owner  would  have  had  if  he  had  resided  in  Chicago, 
and  attended  to  his  own  leasing  and  repairing.  In  that  respect,  appel- 
lants remained  in  control  of  the  premises  until  the  door  fell  upon  the 
deceased.  There  was  no  interruption  of  the  causal  relation  between 
them  and  the  injured  man.  They  were,  in  fact,  for  the  time  being, 
substituted  in  the  place  of  the  owner,  so  far  as  the  control  and  man- 
agement of  the  property  was  concerned.  The  principle  that  makes  an 
independent  contractor,  to  whose  control  premises  upon  which  he  is 
working  are  surrendered,  liable  for  damages  to  strangers  caused  by  his 
negligence,  although  he  is  at  the  time  doing  the  work  under  contract 
with  the  owner  (Wharton  on  Negligence,  sec.  440),  would  seem  to  be 
sufficient  to  hold  appellants.  The  owner  of  cattle,  who  places  them  in 
the  hands  of  an  agister,  is  not  liable  for  damages  committed  b}'  them 
while  the}-  are  under  the  control  of  the  agister.  It  is  the  possession 
and  control  of  the  cattle  which  fix  the  liability,  and  the  law  imposes 
upon  the  agister  the  duty  to  protect  strangers  from  injur}'  by  them. 
Ward  V.  Brown,  64  111.  307  ;  Ozburn  v.  Adams,  70  id.  29l/ 


494  BALLOU    V.    TALBOT.  [CHAP.  III. 

"When  appellants  rented  the  premises  to  Mrs.  Wheeler,  in  the  dan- 
gerous condition  shown  b}'  the  evidence,  they  voluntarily  set  in  motion 
an  agenc}',  which,  in  the  ordinary  and  natural  course  of  events,  would 
expose  persons  entering  the  barn  to  personal  injury.  Use  of  the  barn 
for  the  purpose  for  which  it  was  used  when  the  deceased  came  to  his 
death,  was  one  of  its  ordinary  and  appropriate  uses,  and  might,  by 
ordinary'  foresight,  have  been  anticipated.  If  the  insecure  condition 
of  the  door  fastenings  had  arisen  after  the  letting  to  Mrs.  Wheeler,  a 
different  question  would  be  presented  ;  but  as  it  existed  before  and  at 
the  time  of  the  letting,  the  owner  or  persons  in  control  are  chargeable 
with  the  consequences.  Gridley  v.  Bloomington,  68  111.  47  ;  Tomle  v. 
Hampton,  129  Id.  379. 

"  Neither  error  is  well  assigned,  and  the  judgment  is  affirmed." 

X.  H.  Boutell,  for  the  appellant. 

Cameron  &  Hughes,  for  the  appellee. 

Per  Curiam.  We  full^'  concur  in  the  legal  proposition  asserted  in 
the  foregoing  opinion,  and  deem  it  unnecessary  to  add  to  what  is 
therein  said  in  support  of  that  proposition. 

The  judgment  is  affirmed.' 


SECTION   II. 

Unauthorized  Contracts. 

BALLOU  V.  TALBOT. 
Supreme  Judicial  Court  of  Massachusetts,  1820. 

[16  il/ass.  461.] 

The  declaration  was  "  in  a  plea  of  the  case  for  that  the  said  Talbot, 
at,  &c.,  on,  &c.,  by  his  note  of  that  date,  by  him  subscribed,  for  value 
received,  promised  the  plaintiff  to  pay  him,  or  his  order,  $380  on  de- 
mand with  interest,"  &c. 

Trial  on  the  general  issue,  in  May  last,  before  Jackson,  J.,  at  Taun- 
ton. The  note  produced  was  signed  by  the  defendant,  and,  after  his 
name,  were  added  the  words  "  agent  for  David  Perry."  The  defendant 
objected  that  this  evidence  did  not  comport  with  the  declaration.  The 
plaintiff  offered  to  prove,  that  the  defendant  was  not  authorized  to 
make  the  note,  as  agent  for  Perry.  The  defendant  contended  that,  if 
that  was  the  fact,  still  the  plaintiff  could  not  recover  in  this  action ; 

1  See  Campbell  v.  Portland  Sugar  Co.,  62  Me.  552  (1873). 

Cases  on  conversion  by  agents  are  collected  in  1  Ames  &  Smith's  Cases  on  Torts, 
307-341.  — Ed. 


SECT.  II.]  BALLOU  V.    TALBOT.  495 

and  that  be  should  have  brought  a  special  action  on  the  case,  setting 
forth  that  the  defendant  undertook  to  act  as  agent,  and  pretended  to 
have  sucii  authority,  when  he  was  not  authorized. 

The  judge  overruled  this  objection,  intending  to  reserve  the  question 
for  the  consideration  of  the  whole  court.  The  trial  proceeded,  and 
the  plaintiff  obtained  a  verdict  on  the  ground  that  the  defendant  was 
not  authorized  to  sign  the  note,  as  agent  to  Perry. 

If,  in   the  opinion  of  the  court,  the  plaintiff  was  entitled  to  recover 
under  these  circumstances,  judgment  was  to  be  rendered  on   the  ver- 
dict ;  otherwise   the  plaintiff   was  to  become   nonsuit,  or  such  order 
made  in  the  cause  as  to  the  Court  should  seem  proper. 
W.  and  J^.  Baylies^  for  the  defendant. 

Morton^  for  the  plaintiff. 

Parker,  C.  J.  The  question  in  this  case  is  not  whether  the  defendant 
is  liable  for  having  undertaken  to  make  the  promise  for  Perry,  but 
whether  the  note  declared  on  is  the  note  of  the  defendant. 

It  is  obvious,  from  the  signature,  that  it  was  neither  given  nor  re- 
ceived as  the  defendant's  note.  It  is  found  by  the  jury,  that  he  had  no 
authority  to  sign  it  for  Perry  ;  but  the  legal  inference  from  this  fact  is, 
not  that  it  became  his  promise  directly,  but  that  he  is  answerable  in 
damages  for  acting  without  authorit}'.  What  is  stated  in  the  case  of 
Long  V.  Colburn,  as  an  intimation  of  the  court,  was  undoubtedly  a 
settled  opinion,  viz.,  that,  in  such  case,  a  special  action  upon  the  case 
would  be  the  proper  action. 

One  way,  and  perhaps  the  best  way,  to  ascertain  whether  a  party  is 
sued  in  the  right  form  of  action,  is  to  see  of  what  fact  the  declaration 
gives  him  notice,  and  whether  that  constitutes  substantially  the  contract 
to  which  he  is  called  to  answer.  In  the  case  before  us  the  defendant  is 
charged  with  having  made  a  promissory'  note  to  the  plaintiff.  The  evi- 
dence produced  is  apparentl}'  the  note  of  another.  But  he  wrongfully 
made  this  note  for  the  other.  This  is  entirely  new  ground,  of  which 
the  declaration  gave  him  no  notice,  and  which  he  cannot  be  expected 
to  be  prepared  to  answer. 

Besides,  if  the  note  is  to  be  considered  as  evidence  of  the  defendant's 
own  promise,  he  must  pa}'  according  to  the  tenor  of  it ;  whereas,  if  he 
were  sued  for  falsely  assuming  an  authorit\',  he  might  defend  himself 
b}-  showing  that  the  person,  for  whom  he  assumed  to  act,  had  after- 
wards ratified  his  act,  or  that  he  had  otherwise  satisfied  the  debt  for 
which  the  note  was  given,  or  perhaps,  he  might  show  that  no  debt  was 
due  for  which  the  note  was  given,  or  that  he  had  authority  to  make  it. 
It  is,  in  short,  a  proper  subject  for  a  special  action,  in  which  damages 
will  be  recovered  according  to  the  injury  sustained. 

In  the  cases  cited  bj-  the  plaintiffs  counsel,  the  parties  held  per- 
sonall}'  liable,  either  made  themselves  so  by  the  terms  of  the  contract, 
though  purporting  to  act  for  another,  or  they  acted  in  certain  capacities 
in  which  they  had  no  right  to  bind  the  estate  of  those  for  whom  they 
undertook  to  act.     In  the  case  before  us,  the  promise  was  avowedly 


496  POLHILL    V.    WALTER.  [CHAP.  III. 

made  b}-  the  defendant  for  Perry  ;  and  it  was  matter  of  evidence, 
extrinsic  to  the  contract,  whether  he  had  authority  or  not.  The  verdict 
is  set  aside,  and  the  plaintifif  must  be  called. 

Plamtiff  nonsuit} 


POLHILL  V.   WALTER. 

King's  Bench.     1832. 

[3  B.^-  Ad.  114.] 

Declaration  stated,  in  the  first  count,  that  J.  B.  Fox,  at  Pernam- 
buco,  according  to  the  usage  of  merchants,  drew  a  bill  of  exchange, 
dated  the  23d  of  April,  1829,  upon  Edward  Hancorne,  requesting  him, 
sixty  days  after  sight  thereof,  to  pay  Messrs.  Turner,  Brade,  and  Co., 
or  order,  £140  16s.  8d.  value  received,  for  Mr.  Robert  Lott ;  that 
afterwards  the  defendant,  well  knowing  the  premises,  did  falsely, 
fraudulently,  and  deceitfully  represent  and  pretend  that  he  was  duly 
authorized  by  Hancorne  to  accept  the  said  bill  of  exchange  according 
to  the  usage  of  merchants,  on  behalf  and  by  the  procuration  of  Han- 
corne, to  whom  the  same  was  so  directed  as  aforesaid,  and  did  then 
and  there  falsely  and  fraudulently  pretend  to  accept  the  same  by  the 
procuration  of  Hancorne;  that  the  said  bill  of  exchange  was  indorsed 
over,  and  by  various  indorsements  came  to  the  plaintiff,  of  which  the 
defendant  had  notice  ;  that  the  plaintiff,  relying  upon  tlie  said  pre- 
tended acceptance,  and  believing  that  the  defendant  had  authority 
from  Hancorne,  so  to  accept  the  bill  on  his  behalf,  and  in  considera- 
tion thereof,  and  of  the  indorsement,  and  of  the  delivery  of  the  bill  to 
him  the  plaintiff,  received  and  took  from  the  last  indorsers  the  bill  as 
and  for  payment  of  the  sum  of  money  in  the  bill  specified,  for  certain 
goods  and  merchandises  of  the  plaintiff  sold  to  the  indorsers;  that 
when  the  bill  became  due,  it  was  presented  to  Hancorne  for  payment, 
but  that  he,  Hancorne,  did  not  nor  would  pay  the  same,  whereupon  the 
plaintiff  brought  an  action  against  Hancorne  as  the  supposed  acceptor 
thereof ;  and  that  by  reason  of  the  premises,  and  the  said  false  repre- 
sentation and  pretence  of  the  defendant,  the  plaintiff  not  only  lost  the 
sum  of  money  in  the  bill  of  exchange  mentioned,  which  has  not  yet 
been  paid,  but  also  expended  a  large  sum,  to  wit,  £42  7s.,  in  unsuccess- 
fully suing  Hancorne,  and  also  paid  £17  to  him  as  his  costs.  The 
second  count,  after  stating  the  drawing  of  the  bill  according  to  the 
custom  of  merchants,  by  Fox,  as  in  the  first  count,  alleged  that  the  de- 

1  Ace:  Hall  v.  Crandall,  29  Cal.  567  (1866)  ;  Noyes  v.  Loring,  55  Me.  408  (1867); 
Bartlett  v.  Tucker,  104  Mass.  336  (1870). 

Contra:  Dusenbury  v.  Ellis,  3  Johns.  Cas.  70  (1802)  ;  but  this  last  case  is  disap- 
proved in  White  v.  Madison,  26  N.  Y.  117  (1862).  —  Eu. 


SECT.  II.]  POLHILL   V.    WALTER.  497 

fendaiit,  well  knowing  the  premises,  did  falsely  and  deceitfully  represent 
and  pretend  that  he,  the  defendant,  was  duly  authorized  by  llancorne 
to  accept  the  bill  according  to  the  said  usage  and  custom  of  merchants, 
on  behalf  and  by  the  procuration  of  Hancorne,  to  whom  the  same  was 
directed,  and  did  accept  the  same  in  writing  under  pretence  of  the  pro- 
curation aforesaid ;  that  by  various  indorsements  the  bill  came  to  the 
plaintilf ;  that  he,  the  plaintiff,  relying  on  the  said  pretended  procura- 
tion and  authority  of  llancorne,  and  in  consideration  thereof,  and  of 
the  said  acceptance,  received  and  took  the  bill  as  and  for  payment  of  a 
sum  of  money  in  the  bill  specified,  in  respect  of  goods  sold  by  the  plain- 
tiff. The  count  then  stated  the  presentment  of  the  bill  to  Hancorne  and 
his  refusal  to  pay,  and  averred  that  it  became  and  was  the  duty  of  the 
defendant  to  pay  the  sum  in  the  bill  specified,  as  the  acceptor  thereof, 
but  that  he  had  refused.  There  was  a  similar  allegation  of  special 
damage  as  in  the  first  count.  Plea,  not  guilty.  At  the  trial,  before 
Lord  Tenterden,  C.  J.,  at  the  London  sittings  after  Hilar}-  term,  1831, 
it  appeared  in  evidence  that  the  defendant  had  formerly  been  in  part- 
nership with  Hancorne,  but  was  not  so  at  the  time  of  the  present  trans- 
action. The  latter,  however,  still  kept  a  counting-house  on  the  premises 
where  the  defendant  carried  on  business.  The  bill  of  exchange  drawn 
upon  Hancorne  was,  in  June,  1829,  left  for  acceptance  at  that  place, 
and,  afterwards,  a  banker's  clerk,  accompanied  b}-  a  Mr.  Armfield, 
then  a  partner  in  the  house  of  the  payees,  called  for  the  bill.  The 
defendant  stated  that  Hancorne  was  out  of  town,  and  would  not  return 
for  a  week  or  ten  days,  and  that  it  had  better  be  presented  again.  This 
the  clerk  refused,  and  said  it  would  be  protested.  Armfield  then  repre- 
sented to  the  defendant  that  expense  would  be  incurred  by  the  protest, 
and  assured  him  that  it  was  all  correct ;  whereupon  the  defendant, 
acting  upon  that  assurance,  accepted  it  per  procuration  of  Mr.  Han- 
corne. After  this  acceptance,  it  was  indorsed  over  by  the  payees.  On 
the  return  of  Hancorne,  he  expressed  his  regret  at  the  acceptance,  and 
refused  to  pay  the  bill.  The  plaintiff  sued  him,  and,  on  the  defendant 
appearing  and  stating  the  above  circumstances,  was  nonsuited.  The 
present  action  was  brought  to  recover  the  amount  of  the  bill,  and  the 
costs  incurred  in  that  action,  amounting  in  the  whole  to  £196.  The  de- 
fendant's counsel  contended  that  as  there  was  no  fraudulent  or  deceitful 
intention  on  the  part  of  the  defendant,  he  was  not  answerable.  Lord 
Tenterden  was  of  that  opinion,  but  left  it  to  the  jury  to  determine 
whether  there  was  such  fraudulent  intent  or  not ;  and  directed  them  to 
find  for  the  defendant  if  they  thought  there  was  no  fraud,  otherwise  for 
the  plaintiff  ;  giving  the  plaintiff  leave  to  enter  a  verdict  for  the  sum  of 
£196  if  the  court  should  be  of  opinion  that  he  was  entitled  thereto. 
The  jury  found  a  verdict  for  the  defendant.  In  the  ensuing  Easter 
term  Sir  James  Scarlett  obtained  a  rule  nisi,  according  to  the  leave 
reserved,  against  which  in  the  last  term  cause  was  shown  by 

Campbell  and  J^.  Kelly. 

Sir  James  Scarlett  and  Lloyd,  contra. 

32 


498  POLHILL   V.    WALTER.  [CHAP.  III. 

Lord  Tenterden,  C.  J.,  now  delivered  the  judgment  of  the 
Court.  ^  .  .  . 

On  the  argument,  two  points  were  made  by  the  plaintiff's  counsel. 
It  was  contended,  in  the  first  place,  that  although  the  defendant  was 
not  guilt}'  of  any  fraud  or  deceit,  he  might  be  made  liable  as  acceptor 
of  the  bill ;  that  the  second  count  was  applicable  to  that  view  of  the 
case  ;  and  that,  after  rejecting  the  allegations  of  fraud  and  falsehood  in 
that  count,  it  contained  a  sufficient  statement  of  a  cause  of  action 
against  him,  as  acceptor.  But  we  are  clearl}-  of  opinion  that  the 
defendant  cannot  be  made  responsible  in  that  character.  It  is  enough 
to  sa}-  that  no  one  can  be  liable  as  acceptor  but  the  person  to  whom 
the  bill  is  addressed,  unless  he  be  an  acceptor  for  honor,  which  the 
defendant  certainly  was  not. 

This  distinguishes  the  present  case  from  that  of  a  pretended  agent, 
making  a  promissory  note  (referred  to  in  Mr.  Roscoe's  Digest  of  the 
Law  of  Bills  of  Exchange,  note  9,  p.  47),  or  purchasing  goods  in  the 
name  of  a  supposed  principal.  And,  indeed,  it  may  well  be  doubted  if 
the  defendant,  by  writing  this  acceptance,  entered  into  an}'  contract  or 
warranty  at  all,  that  he  had  authorit}'  to  do  so ;  and  if  he  did,  it  would 
be  an  insuperable  objection  to  an  action  as  on  a  contract  b}'  this  plain- 
tiff, that  at  all  events  there  was  no  contract  with,  or  warranty  to,  him. 

It  was  in  the  next  place  contended  that  the  allegation  of  falsehood 
and  fraud  in  the  first  count  was  supported  b}-  the  evidence ;  and  that, 
in  order  to  maintain  this  species  of  action,  it  is  not  necessary  to  prove 
that  the  false  representation  was  made  from  a  corrupt  motive  of  gain 
to  the  defendant,  or  a  wicked  motive  of  injury  to  the  plaintiff:  it  was 
said  to  be  enough  if  a  representation  is  made  which  the  party  making  it 
knows  to  be  untrue,  and  which  is  intended  by  him,  or  which,  from  the 
mode  in  which  it  is  made,  is  calculated,  to  induce  another  to  act  on 
the  faith  of  it,  in  such  a  wa}'  as  that  he  may  incur  damage,  and  that 
damage  is  actually  incurred.  A  wilful  falsehood  of  such  a  nature  was 
contended  to  be,  in  the  legal  sense  of  the  word,  a  fraud  ;  and  for  this 
position  was  cited  the  case  of  Foster  v.  Charles,  6  Bingh.  396,  7  Bingh. 
105,  which  was  twice  under  the  consideration  of  the  Court  of  Common 
Pleas,  and  to  which  ma}'  be  added  the  recent  case  of  Corbet  v.  Brown, 
8  Bingh.  33.  The  principle  of  these  cases  appears  to  us  to  be  well 
founded,  and  to  apply  to  the  present. 

It  is  true  that  there  the  representation  was  made  immediately  to  the 
plaintiff,  and  was  intended  by  the  defendant  to  induce  the  plaintiff  to 
do  the  act  which  caused  him  damage.  Here,  the  representation  is 
made  to  all  to  whom  the  bill  may  be  offered  in  the  course  of  circula- 
tion, and  is,  in  fact,  intended  to  be  made  to  all,  and  the  plaintiff  is 
one  of  those  ;  and  the  defendant  must  be  taken  to  have  intended,  that 
all  such  persons  should  give  credit  to  the  acceptance,  and  thereby  act 
upon  the  faith  of  that  representation,  because  that,  in  the  ordinary 
course  of  business,,  is  its  natural  and   necessarj-  result. 

^  The  Chief  Justice's  statement  of  the  case  is  omitted.  —  Ed. 


3ECT.  II.J  SMOUT  V.   ILBERY.  499 

If,  then,  the  defendant,  when  he  wrote  the  acceptance,  and,  thereby, 
in  substance,  represented  tliat  he  had  authority  from  the  drawee  to 
make  it,  knew  that  he  liad  no  such  authority  (and  upon  the  evidence 
there  can  be  no  doul)t  that  he  did),  the  representation  was  untrue  to 
his  knowledge,  and  we  think  that  an  action  will  lie  against  him  by  the 
plaintiff  for  the  damage  sustained  in  consequence. 

If  the  defendant  had  had  good  reason  to  believe  his  representation 
to  be  true,  as,  for  instance,  if  he  had  acted  upon  a  power  of  attorne}' 
which  he  supposed  to  be  genuine,  but  which  was,  in  fact,  a  forgery, 
he  would  have  incurred  no  liability,  for  he  would  have  made  no  state- 
ment which  he  knew  to  be  false :  a  case  ver^'  different  from  the 
present,  in  which  it  is  clear  that  he  stated  what  he  knew  to  be  untrue, 
though  with  no  corrupt  motive. 

It  is  of  the  greatest  importance  in  all  transactions,  that  the  truth 
should  be  strictly  adhered  to.  In  the  present  case,  the  defendant  no 
doubt  believed  that  the  acceptance  would  be  ratified,  and  the  bill  paid 
when  (hie,  and  if  he  had  done  no  more  than  to  make  a  statement  of 
that  belief,  according  to  the  strict  truth,  by  a  memorandum  appended 
to  the  bill,  he  would  have  been  blameless.  But  then  the  bill  would 
never  have  circulated  as  an  accepted  bill,  and  it  was  only  in  conse- 
quence of  the  false  statement  of  the  defendant  that  he  actually  had 
authorit}'  to  accept,  that  the  bill  gained  its  credit,  and  the  plaintiff 
sustained  a  loss.  For  these  reasons  we  are  of  opinion  that  the  rule 
should  be  made  absolute  to  enter  a  verdict  for  the  plaintiff. 

Mule  absolute. 


SMOUT  V.  ILBERY. 

Exchequer.     1842. 
[10  M.  cj-  W.  1.] 

Debt  for  goods  sold  and  delivered,  and  on  an  account  stated. 

Pleas,  first,  except  as  to  £6  7s.,  parcel,  &c.,  nunquam  indebitatus; 
secondly,  except  as  to  the  said  sum  of  £6  7.s.,  parcel,  &c.,  payment; 
thirdly,  as  to  tlie  sum  of  £6  Is.,  parcel,  &c.,  payment  into  court  of  that 
sum,  and  nunquam  indebitatus  ultra.  The  replication  took  issue  on 
the  first  plea,  denied  the  payment  alleged  in  the  second,  and  accepted 
the  £6  7s. ,  in  satisfaction  as  to  so  much  of  the  debt  demanded. 

At  the  trial  before  Gurney,  B.,  at  the  Middlesex  Sittings  in  Michael- 
mas Term,  1841,  it  appeared  that  the  plaintiff  was  a  butcher,  and  the 
defendant  the  widow  of  James  Ilbery,  who  left  England  for  China  in 
May,  1839,  and  was  lost  in  the  outward  voyage,  on  the  14th  October, 

1839.  The  news  of  his  death  arrived  in  England  on  the  13th  of  March, 

1840.  The  plaintiff  had  supplied  meat  to  the  family  before  Mr.  TIbery 
sailed,  and  during  his  voyage,  and  the  supply  continued  down  to  the 


500  SMOUT   V.    ILBERY.  [CHAF.  III. 

time  of  the  news  of  his  death,  aud  even  afterwards.  Upon  tlie  14th 
October,  1839,  the  day  of  Mr.  llberj's  death,  the  amount  of  the  debt 
was  £52  13s.  lid.  Between  that  day  and  the  arrival  of  the  news  of  the 
death,  meat  had  been  supplied  to  the  amount  of  £19  Us. ;  and  after  that, 
the  supply  amounted  to  £6  7s. 

This  action  was  brought  for  these  two  sums  (together)  £25  16s.  The 
defendant  paid  £G  7s.  into  court,  and  relied  on  a  payment  of  £20,  as 
discharging  her  from  the  plaintitf's  claim  for  meat  supplied  after  the 
date  of  her  husband's  death;  and  the  counsel  for  the  defendant  gave  in 
evidence  the  following  receipt  signed  by  the  plaintiff,  dated  the  30th 
March,  1840  :  "  Received  of  Mrs.  Ilbery,  £20."  The  plaintiff  insisted 
that  the  £20  had  been  paid  generally  on  account,  and  must  be  applied 
as  a  payment  by  the  executors  in  part  satisfaction  of  the  debt  of  the 
husband  ;  and  called  Mr.  Dollman,  the  executor.  From  his  evidence 
it  appeared,  that  Mr.  Ilber}'  had  left  the  management  of  his  affairs  in 
his  hands,  and  whenever  Mrs.  Ilberv  wanted  money  she  had  it  from 
him.  Dollman  and  Mrs.  Ilbery  were,  by  Ilbery's  will,  appointed  exe- 
cutor and  executrix  ;  but  he  alone  proved  the  will,  on  the  21st  March, 
1840,  power  being  reserved  in  the  usual  way  for  her  to  prove  also.  On 
the  28th  March,  Mr.  Dollman  gave  Mrs.  Ilbery  five  or  six  cheques, 
and  among  others,  one  for  £20,  payable  to  the  plaintiff.  This  cheque 
she  paid  to  the  plaintiff,  and  took  his  receipt  as  above  mentioned. 

At  that  time  it  was  supposed  that  Ilbery's  estate  was  solvent.  It 
turned  out  to  be  otherwise  ;  and  Dollman,  who  was  engaged  with  him 
in  the  adventure  to  China,  had  become  bankrupt. 

The  question  left  to  the  jury  was,  whether  the  £20  was  paid  on  the 
executorship  account,  or  on  the  account  of  Mrs.  Ilbery  only,  and  in 
discharge  of  that  debt  which  (on  both  sides,  as  well  as  in  the  learned 
Judge's  opinion)  was  taken  to  have  been  due  from  her. 

The  jury  found  that  it  was  paid  on  the  executorship  account,  and 
gave  their  verdict  for  the  plaintiff  for  £19  9s.,  the  price  of  the  meat 
supplied  between  the  day  of  Mr.  Ilbery's  death,  and  the  arrival  of  the 
intelligence  of  it.  A  rule  having  been  obtained  in  Michaelmas  Term 
to  show  cause  why  that  verdict  should  not  be  set  aside,  and  a  new  trial 
had,  on  the  ground  that  the  defendant  was  not  hable  for  the  meat  sup- 
plied after,  but  before  she  had  any  knowledge  of,  her  husband's  death. 

Hindmarch  (Jervis  with  him)  showed  cause. 

Erie,  in  support  of  the  rule. 

The  judgment  of  the  court  was  now  delivered  by 

Alderson,  B}  The  point,  how  far  an  agent  is  personally  liable 
who,  having  in  fact  no  authority,  professes  to  bind  his  principal,  has 
on  various  occasions  been  discussed.  There  is  no  doubt  that  in  the 
case  of  a  fraudulent  misrepresentation  of  his  authority,  with  an  inten- 
tion to  deceive,  the  agent  would  be  personally  responsible.  But  inde- 
pendently of  this,  which  is  perfectly  free  from  doubt,  there  seem  to  be 

1  After  stating  the  case.  —  Ed 


SECT.  II.]  SMOUT   V.   ILBERY.  501 

still  two  other  classes  of  cases,  in  which  an  agent  who  without  actual 
auti)oiity  makes  a  contract  in  the  name  of  his  piincipal,  is  personally 
liable,  even  where  no  proof  of  such  fraudulent  intention  can  be  given. 
First,  where  he  has  no  authorit}',  and  knows  it,  but  nevertheless  makes 
the  contract  as  having  such  authority.  In  that  case,  on  the  plainest 
principles  of  justice,  he  is  liable.  For  he  induces  the  other  party  to 
enter  into  the  contract  on  what  amounts  to  a  misrepresentation  of  a 
fact  peculiarly  within  his  own  knowledge  ;  and  it  is  but  just,  that  he 
who  does  so  should  be  considered  as  holding  himself  out  as  one  having 
competent  authority  to  contract,  and  as  guaranteeing  the  consequences 
arising  from  any  want  of  such  authority.  But  there  is  a  third  class,  in 
which  the  courts  have  held,  that  where  a  party  making  the  contract  as 
agent  hondficle  believes  that  such  authority  is  vested  in  him,  but  has  in 
fact  no  such  authority,  he  is  still  personally  liable.  In  these  cases,  it 
is  true,  the  agent  is  not  actuated  by  any  fraudulent  motives  ;  nor  has 
he  made  any  statement  which  he  knows  to  be  untrue.  But  still  his 
liability  depends  on  the  same  principles  as  before.  It  is  a  wrong,  differ- 
ing only  in  degree,  but  not  in  its  essence,  from  the  former  case,  to  state 
as  true  what  the  individual  making  such  statement  does  not  know  to  be 
true,  even  though  he  does  not  know  it  to  be  false,  but  believes,  without 
sufficient  grounds,  that  the  statement  will  ultimately  turn  out  to  be 
correct.  And  if  that  wrong  produces  injur}-  to  a  third  person,  who  is 
wholly  ignorant  of  the  grounds  on  which  such  belief  of  the  supposed 
agent  is  founded,  and  who  has  relied  on  the  correctness  of  his  assertion, 
it  is  equally  just  that  he  who  makes  such  assertion  should  be  personally 
liable  for  its  consequences. 

On  examination  of  the  authorities,  we  are  satisfied  that  all  the  cases 
in  which  the  agent  has  been  held  personally  responsible,  will  be  found 
to  arrange  themselves  under  one  or  other  of  these  three  classes.  In  all 
of  them  it  will  be  found,  that  he  has  either  been  guilt}'  of  some  fraud, 
has  made  some  statement  which  he  knew  to  be  false,  or  has  stated  as 
true  what  he  did  not  know  to  be  true,  omitting  at  the  same  time  to 
give  such  information  to  the  other  contracting  party,  as  would  enable 
him  equall}'  with  himself  to  judge  as  to  the  authoi'it}'  under  which  he 
proposed  to  act. 

Of  the  fii'st,  it  is  not  necessary  to  cite  any  instance.  Polhill  t;.  Walter, 
3  B.  «&  Ad.  114,  is  an  instance  of  the  second  ;  and  the  cases  where  the 
agent  never  had  any  authority  to  contract  at  all,  but  believed  that  he 
had,  as  when  he  acted  on  a  forged  warrant  of  attorney,  which  he 
thought  to  be  genuine,  and  the  like,  are  instances  of  the  third  class. 
To  these  ma}-  be  added  those  cited  by  Mr.  Justice  Story,  in  his  book 
on  Agency,  p.  226,  note  3.  The  present  case  seems  to  us  to  be  dis- 
tinguishable from  all  these  authorities.  Here  the  agent  had  in  fact  full 
authority  originally  to  contract,  and  did  contract  in  the  name  of  the 
principal.  There  is  no  ground  for  saying,  that  in  representing  her 
authority  as  continuing,  she  did  any  wrong  whatever.  There  was  no 
mala  fides  on  her  part ;  no  want  of  due  diligence  in  acquiring  knowl- 


502  SMOUT   V.   ILBERY.  [CHAP.  IIL 

edge  of  the  revocation  ;  no  omission  to  state  any  fact  within  her  knowl- 
edge relating  to  it,  and  the  revocation  itself  was  b}-  the  act  of  God, 
The  continuance  of  the  life  of  the  principal  was,  under  these  circum- 
stances, a  fact  equally  within  the  knowledge  of  both  contracting  parties. 
If,  then,  the  true  principle  derivable  from  the  cases  is,  that  there  must 
be  some  wrong  or  omission  of  right  on  the  part  of  the  agent,  in  order 
to  make  him  personally  liable  on  a  contract  made  in  the  name  of  his 
principal,  it  will  follow  that  the  agent  is  not  responsible  in  such  a  case 
as  the  present.  And  to  this  conclusion  we  have  come.  We  were,  in 
the  course  of  the  argument,  pressed  with  the  difficulty,  that  if  the  de- 
fendant be  not  personally  liable,  there  is  no  one  liable  on  this  contract 
at  all ;  for  Blades  v.  Free,  9  B.  &  Cr.  167  ;  4  Man.  &  Ry.  282,  has  de- 
cided, that  in  such  a  case  the  executors  of  the  husband  are  not  liable. 
This  may  be  so ;  but  we  do  not  think  that  if  it  be  so,  it  affords  to  us  a 
sufficient  ground  for  holding  the  defendant  liable.  In  the  ordinary  case 
of  a  wife  who  makes  a  contract  in  her  husband's  lifetime,  for  which  the 
husband  is  not  liable,  the  same  consequence  follows.  In  that  case,  as 
here,  no  one  is  liable  upon  the  contract  so  made. 

Our  judgment,  on  the  present  occasion,  is  founded  on  general  prin- 
ciples applicable  to  all  agents  ;  but  we  think  it  right  also  to  advert  to 
the  circumstance,  that  this  is  the  case  of  a  married  woman,  whose 
situation  as  a  contracting  party  is  of  a  peculiar  nature.  A  person  who 
contracts  with  an  ordinarj'  agent,  contracts  with  one  capable  of  con- 
tracting in  his  own  name ;  but  he  who  contracts  with  a  married  woman 
knows  that  she  is  in  general  incapable  of  making  anj-  contract  by  which 
she  is  personally  bound.  The  contract,  therefore,  made  with  the  hus- 
band by  her  instrumentality-,  may  be  considered  as  equivalent  to  one 
made  %  the  husband  exclusively  of  the  agent.  Now,  if  a  contract 
were  made  on  the  terms,  that  the  agent,  having  a  determinable  author- 
ity, bound  his  principal,  but  expressly  stipulated  that  he  should  not  be 
personally*  liable  himself,  it  seems  quite  reasonable  that,  in  the  absence 
of  all  mala  fides  on  the  part  of  the  agent,  no  responsibility  should  rest 
upon  him  ;  and,  as  it  appears  to  us,  a  married  woman,  situated  as  the 
defendant  was  in  this  case,  may  fairl}'  be  considered  as  an  agent  so 
stipulating  for  herself;  and  on  this  limited  ground,  therefore,  we  think 
she  would  not  be  liable  under  such  circumstances  as  these. 

For  these  reasons,  we  are  of  opinion  that  the  rule  for  a  new  trial 
must  be  absolute ;  but  as  the  point  was  not  taken  at  Nisi  Prius,  we 
think  the  costs  should  abide  the  event  of  the  new  trial. 

Hule  absolute  accordingly} 

»  See  RandeU  v.  Trimen,  18  C.  B.  786,  793  (1856).  —Ed. 


SECT.  II.]  JENKINS   V.    HUTCHINSON.  503 


JENKINS  V.  HUTCHINSON. 
Queen's  Bench.     1849. 

[13   Q.  D.  744.] 

Assumpsit.  Declaration  in  the  ordinary  form  on  a  memorandum  of 
charter-part}',  not  under  seal,  averred  to  be  made  by  and  between  plain- 
tiff and  defendant,  b}'  which  it  was  agreed  that  a  ship  called,  &c., 
should  sail  to  Constantinople.  Breach,  that  the  ship  did  not  sail. 
Plea  (amongst  others),  iVb/i  assumpsit. 

On  the  trial,  before  Erle,  J.,  at  the  Durham  Summer  Assizes,  1848, 
a  memorandum  of  charter-party  not  under  seal  was  produced.  It  com- 
menced :  "  It  is  this  day  mutually  agreed  between  Mr.  P.  A.  Barnes,  of 
Jarrow,  owner  of  the  good  ship,"  «&;c.,  ''and  Mr.  Jenkins,  merchant, 
that,"  &c.  The  instrument  was  one  of  the  ordinary  printed  forms  ; 
and  the  blanks  had  been  filled  up  by  the  defendant.  It  was  signed  by 
the  plaintiff,  and  was  also  signed  by  the  defendant,  in  the  following 
form  :  "  R.  A.  Hutchinson  />ro  P.  A.  Barnes."  This  signature  was 
attested  in  the  following  form :  "  Witness  to  the  signature  of  P.  A. 
Barnes  /)r  Ralph  Hutchinson,  T.  Wilson."  It  appeared  in  evidence 
that  Barnes  had  given  the  defendant  no  authority'  to  make  this  con- 
tract, but  that  the  defendant,  believing  that  he  wanted  such  a  charter- 
party,  made  it  for  him,  and  that  Barnes,  on  its  being  communicated  to 
him,  refused  to  adopt  it,  having  himself,  without  defendant's  knowl- 
edge, already  chartered  his  vessel.  The  plaintiff's  counsel  contended 
that  under  these  circumstances  the  defendant  was  liable,  and  might  be 
sued  on  the  contract  as  principal.  Verdict  for  the  plaintiff,  leave  being 
reserved  to  move  for  a  nonsuit.  JfaHin,  in  Michaelmas  Term,  1848, 
obtained  a  rule  nisi  accordingly. 

Watso7i,  Overend^  and  Hugh  Hill,  now  showed  cause. 

3Iartin  and  Seymour.,  contra. 

Lord  Denman,  C.  J. ,  delivered  the  judgment  of  the  Court.  .  .  . 

It  is  not  pretended  that  the  defendant  had  any  interest  as  principal : 
he  signed  as  agent,  intending  to  bind  a  principal,  and  in  no  other 
character.  That  he  may  lie  liable  to  the  plaintiff  in  another  form  of 
action  for  an}'  damage  sustained  b\'  his  representing  himself  to  be  agent 
when  he  was  not,  is  ver}'  possible :  but  the  question  is  here  whether  he 
can  be  sued  on  the  charter-partv  itself,  as  a  part}'  to  it.  No  reported 
case  has  decided  that  a  party  so  circumstanced  can  be  sued  on  the 
instrument  itself.  Mr.  Justice  Story,  in  his  book  on  the  Law  of 
Agency,  p.  32'2,  3d  ed.,  in  a  note,  states  that  the  decisions  in  the 
American  courts  are  conflicting  on  this  point,  and  that  in  England  it  is 
held  that  the  suit  must  be  by  a  special  action  on  the  case ;  citing 
Polhill  V.  Walter,  3  B.  &  Ad.  114.  That  case  does  not  perhaps  estab- 
lish the  broad  proposition,  for  the  contract  was  a  bill  of  exchange,  an 
instrument  differing  in  many  respects  from  ordinary  contracts ;   but 


504  LEWIS   V.   NICHOLSON.  [CHAP.  IIL 

even  in  the  case  of  a  bill  of  exchange  the  Court  of  Exchequer,  in 
Wilson  V.  Barthrop,  2  M.  &  W.  863,  did  not  at  once  repudiate  the 
possibility  that  an  agent  might  be  so  liable  :  the  case,  however,  went 
off  on  the  ground  that  he  might  have  had  authority  to  bind  the  princi- 
pal, and  did  not  appear  to  have  acted  mala  fide. 

In  the  absence  of  any  direct  authority,  we  think  that  a  part}'  who 
executes  an  instrument  in  the  name  of  another,  whose  name  he  puts  to 
the  instrument  and  adds  his  own  name  only  as  agent  for  that  other, 
cannot  be  treated  as  a  part}'  to  that  instrument  and  be  sued  upon  it, 
unless  it  be  shown  that  he  was  the  real  principal :  and  that  this  rule 
must  be  made  absolute  accordingly. 

Mule  absolute  for  a  nonsuit. 


LEWIS   V.   NICHOLSON. 
Queen's  Bench.     1852. 

[18   Q.  B.  503.] 

Declaration  stated  that  Messrs.  Arliss  «fe  Tucker  had  assigned  by 
bill  of  sale  to  plaintiff  by  wa}'  of  security  for  £268  Is.  certain  goods  ; 
and  that  whilst  the  debt  was  unsatisfied  Arliss  &  Tucker  became  bank- 
rupts. That  the  goods  were  seized  by  their  assignees,  who  were  about 
to  sell  them  ;  and  plaintiff  gave  notice  that  he  claimed  the  goods,  and 
would  forbid  the  sale.  That,  in  consideration  plaintiff  would  consent 
to  the  sale,  defendants  promised  that  the  net  proceeds  of  the  effects 
included  in  the  bill  of  sale  should  be  paid  to  plaintiff  to  the  extent  of 
the  balance  then  due  to  him.  Averments  of  consent  by  plaintiff,  and 
that  the  sale  took  place.  Breach,  that  the  net  proceeds  were  not  paid 
to  plaintiff.  There  were  also  counts  for  money  had  and  received,  and 
on  accounts  stated. 

Plea:  Non  assumpserunt.     Issue  thereon. 

On  the  trial,  before  Lord  Campbell,  C.  J.,  at  Guildhall,  at  the  sittings 
after  last  Hilary  Term,  the  material  facts  appeared  to  be  that  the  de- 
fendants were  solicitors  to  the  assignees  of  Messrs.  Arliss  &  Tucker, 
who  had  become  bankrupts.  The  trade  assignee  had  ordered  a  sale  by 
auction  of  goods  seized  as  the  property  of  the  bankrupts,  when  the 
plaintiff's  solicitor  gave  notice  that  the  plaintiff  claimed  part  of  the 
goods  under  a  bill  of  sale  by  waj'  of  mortgage.  The  following  letters 
were  then  proved. 

Defendants  to  plaintiff's  solicitor,  26th  August,  1851. 

"  Re  Arliss  and  Tucker.  Sir  :  In  consideration  of  Mr.  James  Henry 
Lewis,  for  whom  you  act,  consenting  to  the  sale,  by  Messrs.  Lewis  & 
Son,  of  the  bankrupts'  printing  materials  and  other  effects  (part 
whereof  is  included  in  a  bill  of  sale  to  Mr.  J.  H.  Lewis  by  way  of 


SECT.  II.]  LEWIS   V,    NICHOLSON.  505 

mortgage,  dated  the  16th  of  March,  1850),  we  hereb}',  on  behalf  of  the 
assignees,  consent  that  the  net  proceeds  of  the  effects  included  in  the 
said  bill  of  sale  shall  be  paid  over  to  you  or  your  client  to  the  extent  of 
the  balance  now  remaining  due  under  the  bill  of  sale  for  principal  and 
interest.  We  shall  feel  obliged  by  your  sending  us  immediately  a  con- 
sent to  the  sale  accordingl}-.  Yours  faithfully,  Nicholson  &  Parker." 
Plaintiff's  solicitor  to  defendants,  27th  August,  18.51. 
"  He  Arliss  and  Tucker.  Dear  Sirs  :  In  compliance  with  the  under- 
taking given  b}'  you  herein,  and  contained  in  your  letter  of  the  26th 
inst.,  I  hereby,  on  the  part  of  Mr.  James  Henry  Lewis,  consent  to  the 
sale  by  Messrs.  Lewis  &  Son  of  the  bankrupts'  printing  materials  and 
other  effects  (part  of  which  is  included  in  the  bill  of  sale  to  Mr.  J.  H. 
Lewis  by  way  of  mortgage  dated  the  16th  of  March,  1850).  I  am, 
gentlemen,  your  obedient  servant,  J.  H.  F.  Lewis,  solicitor  to  the  said 
J.  H.  Lewis." 

The  sale  took  place  accordingly.  The  trade  assignee  of  the  bank- 
rupts had  authorized  the  writing  of  the  letter  of  26th  August,  1851. 
The  official  assignee  was  absent  at  the  time,  and  did  not  know  of  the 
writing  of  that  letter  till  afterwards  ;  he  was  called  as  a  witness  for  the 
plaintiff,  and  proved  that  he  never  ratified  the  contract  in  that  letter. 

Some  letters,  written  after  the  dispute  had  arisen,  were  put  in 
evidence,  which,  as  plaintiff  contended,  showed  that  defendants  con- 
sidered themselves  as  personall}-  bound  by  the  undertaking  of  26th 
August. 

The  Lord  Chief  Justice  directed  a  nonsuit,  with  leave  to  move  to 
enter  a  verdict  if  the  Court  should  be  of  opinion  that,  on  the  documents 
and  evidence,  the  plaintiff  was  entitled  to  recover. 

/Shee,  Serjt. ,  in  the  ensuing  term,  obtained  a  rule  JVisi  accordingly. 
Brarnvcell  and  'Willes  now  showed  cause. 
Shee^  Serjt.,  and  llacnaviara,  in  support  of  the  rule. 
Lord  Campbell,  C.  J.^  .  .  .  Then  the  other  point  is  to  be  consid- 
ered. I  think  the  facts  raise  it,  as  the  trade  assigneee  had  no  authority' 
to  make  the  official  assignee  personally  liable  on  such  a  collateral  con- 
tract. He  might  give  assent,  binding  on  l)oth,  to  the  disposal  of  the 
goods  or  mone}- ;  but  this  goes  much  beyond  such  authority.  So,  the 
principals  not  being  bound,  the  question  arises  whether  the  defendants 
are  liable  in  this  form  of  action.  In  the  note  to  Thomas  v.  Hewes,  2 
C.  &  M.  519,  530,  note  (e),  s.  c.  4  Tyr.  335,  338,  it  is  stated  to  have 
been  said  b^-  Bayle}',  B.,  that,  "  where  an  agent  makes  a  contract  in  the 
name  of  his  principal,  and  it  turns  out  that  the  principal  is  not  liable 
from  the  want  of  authorit}'  in  the  agent  to  make  such  contract,  the  agent 
is  personally  liable  on  the  contract."  That  is  a  high  authority  ;  but 
I  must  dissent  from  it.  It  is  clear  that  it  cannot  apply  where  the  con- 
tract is  peculiarl}'  personal ;  otherwise  this  absurdity  would  follow,  that, 
if  A.,  professing  to  have  but  not  having  authority  from  B.,  made  a 

^  After  discussing  the  construction  of  the  contract.  —  Ed. 


506  COLLEN   V.    WRIGHT.  [cHAP.  III. 

contract  that  B.  should  marry  C,  C.  might  sue  A.  for  breach  of  prom- 
ise of  marriage,  even  though  they  were  of  the  same  sex.  Perhaps  this 
distinction  would  be  enough  to  su[)port  tlie  decision  in  Jenkins  v. 
Hutchinson,  13  Q.  B.  744,  as  there  the  contract  might  be  said  to  be 
peculiarl}'  made  with  the  owner  of  the  ship,  wliich  the  defendant  was 
not;  but  I  go  further.  I  think  in  no  case  where  it  appears  that  a  man 
did  not  intend  to  bind  himself,  but  only  to  make  a  contract  for  a  prin- 
cipal, can  he  be  sued  as  principal,  merel}-  because  there  was  no  au- 
thorit}'.  He  is  liable,  if  there  was  an}-  fraud,  in  an  action  for  deceit, 
and,  in  m}'  opinion,  as  at  present  advised,  on  an  implied  contract  that 
he  had  authority,  whether  there  was  fraud  or  not.  In  either  way  he 
ma}'  be  made  liable  for  the  damages  occasioned  by  the  absence  of 
authority.  But  I  think  that  to  say  he  is  liable  as  principal  is  to  make 
a  contract,  not  to  construe  it.  I  think,  tlierefore,  that  these  defendants 
were  liable,  but  not  in  this  action  ;  and  that  the  nonsuit,  therefore, 
was  right.^  Hide  discharged. 


COLLEN  V.  WRIGHT  et  al. 
Exchequer  Chamber.     1857. 

[8  E.  4-  B.  647.] 

Appeal  from  the  decision  of  the  Court  of  Queen's  Bench  on  a  case 
stated  without  pleadings.  The  case  will  be  found  stated  in  full  in  the 
report  below.  CoUen  v.  Wright.'^  In  substance  it  stated  that  the  tes- 
tator Wright  was  land  agent  for  a  gentleman  named  Gardner,  and,  as 
such,  made  an  agreement  with  the  plaintiff  for  the  lease  to  him  for  12^ 
years  of  a  farm  of  Gardner's.  A  formal  agreement  between  landlord 
and  lessee  was  drawn  up  and  signed  by  the  testator  in  the  following 
form:  "Robert  Wright,  agent  to  William  Dunn  Gardner,  Esquire,  les- 
sor." It  was  also  signed  by  plaintiff.  The  plaintiff  entered  on  the 
farm  on  the  strength  of  this  agreement.  Mr.  Gardner  refused  to 
execute  any  such  lease,  alleging  accurately,  as  it  proved,  that  he  had 
conferred  on  the  testator  no  authority  to  agree  for  a  lease  for  so  long  a 
term.  The  plaintiff  had  commenced  a  suit  in  Chancery  against  Gardner 
for  a  specific  performance.  On  discovering  the  ground  of  defence,  his 
solicitors  sent  to  Wright  a  formal  notice  that,  unless  they  received 
from  Wright  notice  to  the  contrary,  the  plaintiff  would  proceed  with 
the  suit  at  Wright's  expense  ;  and  in  the  event  of  his  bill  being  dis- 
missed on  the  ground  of  the  absence  of  authority,  would  commence  an 
action  to  recover  the  costs  and  other  damages  by  reason  of  Wright's 
want  of  authority.     Wright's  solicitor   sent   an    answer,   dated   11th 

1  Concurring  opinions  were  delivered  by  Wightman,  Erle,  and  Cromptok,  JJ. 
—  Ed. 

2  7  E.  &  B.  301.    See  Simons  v.  Patchett,  7  E.  &  B.  568.  —  Rep. 


6ECT.  II.]  COLLEN   V.    WEIGHT.  507 

April,  1855,  denying  Wright's  liability  to  any  action,  but  not  contain- 
ing any  admission  tliat  Wriglit  bad  not  bad  full  autborit}'.  The  suit 
was  proceeded  with,  and  the  bill  dismissed  with  costs,  on  the  ground 
that  Wright  had  no  authority  from  Gardner  to  sign  the  agreement. 
The  case  in  the  Queen's  Bench  was  stated  after  Wright's  death,  and 
submitted  two  questions  to  the  Court :  1.  Whether  the  plaintiff  is 
entitled  to  maintain  an  action  against  the  defendants,  as  executrix  and 
executors  of  the  said  Robert  Wright,  to  recover  damages  ;  2.  Whether, 
if  so,  the  whole  of  the  damages  sustained  by  the  plaintiff,  including 
his  costs  of  the  said  suit  in  Chancery  can  be  recovered  ;  or,  if  some  of 
such  damages  and  costs  onl}'  can  be  recovered,  which  of  them,  and  to 
what  extent,  without  regard,  however,  to  the  exact  amount.  The  case 
contained  provisions  for  a  judgment,  subject  to  an  arbitration  to  ascer- 
tain the  amount  of  damages  according  to  the  principles  laid  down  by 
the  Court.  The  Court  of  Queen's  Bench  ordered  that  judgment  should 
be  "  entered  for  the  plaintiff  for  such  amount  of  damages  as  shall  in- 
clude monc}'  laid  out  and  costs  of  Chancery  suit."  The  defendants 
appealed. 

Phipson^  for  the  appellants. 

G'Malley^  for  the  respondent. 

WiLLEs,  J.,  delivered  the  following  judgment,  in  which  Pollock, 
C.  B.,  Williams,  J.,  and  Bramwell,  Watsox,  and  Channell,  BB., 
concurred. 

It  appears  to  me  that  the  judgment  of  the  Court  of  Queen's  Bench 
ought  in  all  respects  to  be  affirmed.  I  am  of  opinion  that  a  person, 
who  induces  another  to  contract  with  him  as  the  agent  of  a  third  party 
b}'  an  unqualified  assertion  of  his  being  authorized  to  act  as  such  agent, 
is  answerable  to  the  person  who  so  contracts  for  an}-  damages  which  he 
may  sustain  b}-  reason  of  the  assertion  of  authority'  being  untrue.  This 
is  not  the  case  of  a  bare  misstatement  by  a  person  not  bound  b}-  any 
duty  to  give  information.  The  fact  that  the  professed  agent  honestl}' 
thinks  that  he  has  authorit}'  affects  the  moral  character  of  his  act ;  but 
his  moral  innocence,  so  far  as  the  person  whom  he  has  induced  to  con- 
tract is  concerned,  in  no  way  aids  such  person  or  alleviates  the  incon- 
venience and  damage  which  he  sustains.  The  obligation  arising  in 
such  a  case  is  well  expressed  b}'  saying  that  a  person,  professing  to 
contract  as  agent  for  another,  impliedly,  if  not  expressly,  undertakes 
to  or  promises  the  person  who  enters  into  such  contract,  upon  the  faith 
of  the  professed  agent  being  duh*  authorized,  that  the  authority  which 
he  professes  to  have  does  in  point  of  fact  exist.  The  fact  of  entering 
into  the  transaction  with  the  professed  agent,  as  such,  is  good  con- 
sideration for  the  promise.  Indeed  the  contract  would  be  binding  upon 
the  person  dealing  with  the  professed  agent  if  the  alleged  principal 
•were  to  ratify  the  act  of  the  latter.  This  was,  in  effect,  the  view  taken 
by  the  Court  of  Queen's  Bench,  and  to  which  I  adhere.  With  respect 
to  the  amount  of  damages,  I  retain  the  opinion  thrown  out  in  the 
course  of  the  argument,  that  all  the  expenses  sought  to  be  recovered 


508  COLLEN    V.    WRIGHT.  [CIIAI'.  III. 

were  occasioned  bj-  the  assertion  of  authority  made  at  the  time  of  the 
contract  being  continued  and  persisted  in  by  the  defendant's  testator, 
and  bujiajide  acted  upon  by  the  plaintiff.  That  assertion  was  never 
withdrawn,  not  even  in  the  letter  of  11th  April,  1855,  in  answer  to  the 
plaintiff's  notice  to  the  defendant's  testator,  long  after  the  proceedings 
in  Chancery  had  commenced  and  whilst  they  were  in  full  progress. 
I  am  therefore  of  opinion  that  the  judgment  of  the  Queen's  Bench  was 
right,  and  that  it  ought  to  be  affirmed. 

CocKBURN,  C.  J.  I  regret  most  unfeiguedly  to  find  myself  differing 
in  this  case  from  so  many  of  my  learned  brothers.  ...  I  believe  I 
am  justified  in  saying  that  this  doctrine  is  altogether  a  novel  one.  .  .  . 
In  the  learned  and  elaborate  works  which  treat  of  the  law  relating  to 
agencj',  .  .  .  not  even  a  hint  is  to  be  found  of  any  implied  contract  on 
the  part  of  the  agent  as  to  the  existence  of  the  authority  on  which  he 
professes  to  act.^  .  .  .  Nor  is  it  to  be  wondered  at ;  for,  on  looking  to 
the  reported  decisions  of  our  own  and  of  the  American  courts,  it  will 
be  found  that  at  the  time  these  learned  authors  wrote  no  such  doctrine 
had  ever  been  broached,  but  the  remedy-  against  a  part}-  contracting  on 
behalf  of  another  without  authority'  was  assumed  to  be  either  b}-  an 
action  on  the  case  for  the  false  representation,  or  bj'  an  action  against 
him  as  principal  on  the  original  contract.  The  doctrine  that  a  person 
professing  to  act  as  agent  without  sufficient  authorit}-  might  be  made 
responsible  as  principal  was  only  subverted  at  a  comparatively  recent 
period. 2  .  .  .  The  case  of  Polhill  v.  Walter,  3  B.  &  Ad.  114,  .  .  . 
seems  first  to  have  given  rise  to  a  contrar}'  impression,  although  that 
case  turned  mainl}'  on  the  peculiar  character  of  a  bill  of  exchange  as 
incapable  of  being  accepted  by  an}'  one  but  the  drawee  except  for 
honor  of  the  latter.  But  the  more  recent  case  of  Jenkins  v.  Hutchin- 
son, 13  Q.  B.  744,  laid  down  the  position  broad!}'  that  an  action  ex 
contractu  could  not  be  maintained  against  the  professed  agent  as  prin- 
cipal :  and  the  same  doctrine  was  full}'  confirmed  and  acted  upon  iu 
the  succeeding  case  of  Lewis  v.  Nicholson,  18  Q.  B.  503.  In  the 
mean  time,  the  liability  of  a  professed  agent  for  the  unwarranted  asser- 
tion of  authority  in  an  action  on  the  case  underwent  further  considera- 
tion ;  and  the  doctrine  of  some  writers,  that  any  misrepresentation 
whereby  another  was  induced  to  do,  or  omit  to  do,  an  act  from  which 
injury  resulted,  would  render  the  party  making  it  liable,  underwent 
material  modification,  the  modern  decisions  having  established  that 
such  misrepresentation  will  not  afford  a  ground  of  action  where  made 
in  good  faith  and  without  knowledge  that  it  was  untrue.  The  effect  of 
these  doctrines  being  to  leave  a  person  who  made  a  contract  with 
another  as  agent  without  a  remedy  where  the  professed  agent  had  acted 
ynder  a  mistaken  impression  as  to  his  authority,  it  occurred  to  the 

1  Citing  Story  on  Agency,  §  264,  and  note;  and  2  Smith's  L.  Cas.  (4th  ed.)  297. 
—  Ed. 

2  Citing  Paley  on  Agency,  c.  6,  sec.  1,  p.  386  (3d  ed.)  ;  Story  on  Agency,  §  264; 
Jones  V.  Downman,  4  Q.  B.  235 ;  Smout  v.  Ilbery,  ante,  p.  499.  —  Ed. 


SECT.  II.]  KROEGER   V.    PITCAIRN.  509 

judges  of  the  Court  of  Queen's  Bench  who  decided,  in  the  case  of 
Lewis  V.  Nicholson,  18  Q.  B.  503,  that  an  action  would  not  lie  against 
the  agent  as  principal,  to  suggest  that,  possii)ly,  the  agent  might  under 
such  circumstances,  be  held  liable  on  an  implied  contract  that  he  had 
authority  to  contract  in  the  name  of  the  principal.  And  the  opinion 
thus  incidentally  thrown  out  in  that  case  has  been  acted  upon  in  this. 
It  was  of  course  impossible,  so  long  as  the  doctrine  prevailed  that  the 
professed  agent  could  be  sued  as  principal,  that  he  could  be  held  to  be 
liable  on  this  implied  contract.  It  would  have  been  obviously  incon- 
sistent to  say  that  upon  one  and  the  same  contract  a  man  could  at  the 
same  time  be  liable  upon  an  express  and  also  upon  an  implied  promise. 
To  my  mind  it  by  no  means  follows  that,  because  that  which  was 
believed  to  be  the  remedy  in  law  turns  out  upon  further  consideration 
not  to  be  so,  we  are  therefore  justified  in  resorting  to  the  fiction  of  an 
implied  contract  hitherto  unknown  to  our  law.  ...  I  do  not  think  we 
are  justified  in  introducing  such  a  remedy  by  the  mere  fiat  of  a  judicial 
decree.  I  do  not  stop  to  discuss  the  expediency  or  policy  of  the  pro- 
posed rule.  Otherwise  I  think  it  might  be  shown  that  there  are  two 
sides  even  to  this  part  of  the  case.  .  I  doubt  whether  there  is  any 
sufficient  ground  why  erroneous  representation,  in  the  absence  of  false- 
hood or  fraud,  should  create  a  greater  responsibility  in  the  case  of  a 
contract  than  in  the  case  of  any  other  transaction,  especially  as  the 
other  contracting  party  might  always  protect  himself  by  insisting  on 
communicating  with  the  alleged  principal,  or  by  requiring  a  warranty 
of  authority  from  the  agent.  .  .  .  Judgment  affirmed} 


KROEGER  V.   PITCAIRN. 
Supreme  Court  of  Pennsylvania.     1882. 

[101  Pa.  311.] 

Case,  by  W.  C.  Kroeger  against  Albert  Pitcairn,  to  recover  the 
amount  of  the  loss  sustained  b}-  the  plaintiff  in  consequence  of  certain 
acts  and  representations  made  by  defendant. 

On  the  trial,  before  Kikkpatrick,  J.,  the  following  facts  appeared: 
On  April  4th,  1874,  The  Birmingham  Fire  Insurance  Company  issued 
a  polic}'  of  insurance  to  William  C.  Kroeger,  the  plaintiff,  "on  his 
stock  of  merchandise  and  fixtures  contained  in  the  two-storj-   frame 

1  Ace. :  Baltzen  v.  Nicolay,  53  N.  Y.  467  (1873) ;  In  re  National  Coffee  Palace  Co.,  24 
Ch.  D.  367  (C.  A.,  4883). 

See  Jefts  v.  York,  10  Cush.  392,  395-396  (1852) ;  Beattie  v.  Lord  Ebury,  L.  R. 
7  Ch.  777,  800  (1872),  s.  c.  L.  R.  7  II.  L.  102  (1874);  May  v.  Western  Union  Tele- 
graph Co.,  112  Mass.  90,  94-95  (1873)  ;  Weeks  v.  Propert,  L.  R.  8  C.  P.  427,  437-439 
(1873) ;  Trust  Company  v.  Floyd,  47  Ohio  St.  525  (1890).  —Ed. 


510  KROEGER   V.    PITCAIKN.  [CHAP.  IIL 

store-room  and  cellar,  and  in  frame  addition  attached,  situated  at  Enon 
Coal  Company's  works,  about  two  miles  west  of  Enon,  &c." 

One  of  the  printed  conditions  of  the  policy  was  in  these  words  j 
"Or  if  the  assured  shall  keep  or  have  in  any  place  or  premises  where 
this  polic3'  may  apply,  petroleum,  naphtha,  benzine,  benzole,  gasoline, 
benzine  varnish,  or  an^'  product  in  whole  or  in  part  of  either ;  or  gun- 
powder, fireworks,  nitro  glycerine,  phosphorus,  saltpetre,  nitrate  of 
soda,  or  keep,  have,  or  use  camphene,  spirit  gas,  or  any  burning  fluid 
or  chemical  oils,  without  written  permission  in  this  policj',  then  and  in 
every  such  case  this  policy'  shall  be  void." 

In  December,  1874,  the  premises  so  insured  were  totally  destroyed 
by  an  accidental  fire.  Due  notice  was  given  the  insurance  compan}', 
and  preliminary  proofs  furnished,  but  the  company  refused  to  pay.  An 
action  was  then  brought  on  the  policy,  and  a  judgment  recovered  to 
the  amount  of  twenty-one  hundred  dollars.  That  judgment  this  court 
reversed.  It  had  appeared  on  the  trial  that  a  barrel  of  carbon  oil  had 
been  kept  on  the  premises,  and  this  was  held  to  be  an  avoidance  of  the 
policy.     Birmingham  Fire  Ins.  Co.  v.  Kroeger,  2  Norris,  64. 

Albert  Pitcairn,  the  defendant,  was  the  insurance  company's  agent 
who  procured  the  issue  of  the  policy'.  He  solicited  Kroeger  to  allow 
him  to  effect  the  insurance ;  went  upon  the  premises,  examined  them, 
furnished  the  description  of  them,  and  had  the  polic}'  underwritten, 
bringing  it  with  his  own  hand  to  Kroeger,  from  whom  he  collected  the 
premium.  What  took  place  at  that  time  was  thus  testified  to  b}"  Kroeger : 
"  He  procured  the  policy  and  brought  it  to  me ;  I  took  the  policy  and 
read  it  over,  and  in  reading  it  over  I  happened  to  come  across  this  fine 
print  and  noticed  about  these  articles  that  should  be  mentioned  in  the 
policy, — such  as  petroleum,  and  product  of  petroleum,  and  gasoline, 
and  other  things,  I  don't  know  what  thej'  call  them,  all  strange  names 
to  me,  and  I  told  him  about  petroleum  ;  says  I,  "  Albert,  you  know 
there  is  a  little  petroleum  kept  there  for  the  supplies  to  the  mines  ;  "  I 
had  to  have  that  there  all  the  time,  as  well  as  company  supplies.  He 
said,  "Yes,  I  know  that."  Says  I,  "It  says  here  it  should  be  men- 
tioned in  the  policy  ;  "  and  he  says,  "  That  is  never  taken  notice  of,  only 
where  it  is  kept  in  large  quantity,  say  several  hundred  barrels  ;  in  that 
case,  where  it  is  wholesale,  it  should  be  mentioned,  but  so  long  as  it  is 
not  kept  more  than  one  barrel  in  the  store  at  a  time,  it  is  considered  as 
general  merchandise  and  it  is  never  taken  notice  of  in  any  other  way." 

Cross-examination.  "The  outcome  was  as  I  say;  I  objected  to 
the  poUcy  on  account  of  the  way  it  was  in  the  fine  print ;  it  seemed  to 
me  it  was  not  proper,  and  I  spoke  to  Mr.  Pitcairn  about  that  and  he  said 
that  the  policy  was  proper ;  that  tlie  policies  were  all  made  out  in  that 
wa}' ;  that  carbon  oil,  as  long  as  it  was  not  kept  more  than  one  barrel 
in  the  store,  was  considered  as  general  merchandise  and  not  mentioned 
in  the  polic}',  but  where  it  was  kept  in  large  quantity,  a  hundred  barrels 
or  so,  then  it  must  be  so  mentioned,  and  exception  made  of  it." 

It  was  conceded  that  Pitcairn,  all  through,  acted  as  the  agent  of  the 


SECT.  II.]  KROEGER   V.    PITCAIRN.  511 

insurance  company.  He  admitted  that  he  had  no  authority  from  his 
principal  to  represent  to  Kroeger  that  the  printed  condition  as  to  petro- 
leum was  not  binding  except  wliere  oil  was  kept  wliolesale. 

Plaintiff  requested  the  court  to  charge  that  if  the  jury  believed  from 
the  evidence  that  the  defendant  made  to  plaintiff  the  representa- 
tions testified  to  by  the  latter  and  that  the  latter  took  said  policy  upon 
the  faith  thereof,  and  tliat  the  defendant  had  no  authority  from  the 
Birmingham  Fire  Insurance  Company  to  make  such  representations, 
that  tlie  premises  insured  were  subsequently  destroyed  by  fire,  and  that 
because  of  the  terms  of  the  policy  in  suit  relating  to  petroleum  the 
plaintiff  failed  in  a  recovery  against  said  company,  because  of  having  a 
barrel  of  carbon  oil  on  the  premises,  then  he  is  entitled  to  recover 
against  the  defendant  in  this  action  the  amount  of  the  policy,  with 
interest,  fiom  time  of  payment  provided  in  said  policj'. 

Affirmed  pro  forma. 

Defendant  then  presented  the  following  points. 

1st.  To  sustain  this  action,  the  alleged  misrepresentations  must  not 
only  have  been  false,  but  it  must  be  shown  that  defendant  knew  them 
to  be  false,  and  made  them  with  intent  to  defraud  the  plaintiff. 

Refused  pro  forma. 

2d.  That  the  alleged  representation  was  the  mere  opinion  of  defend- 
ant as  to  the  legal  effect  of  the  condition  in  the  policy  of  insurance, 
and  the  conditions  of  the  policy  being  open  to  tlie  observation  of  plain- 
tiff, plaintiff  was  bound  to  know  the  legal  effect  thereof,  and  cannot, 
for  such  opinion  of  defendant,  recover  in  this  action. 

Refused  ^yro  forma. 

3d.  That  if,  when  defendant,  as  agent  of  the  Birmingham  Insurance 
Compan}',  delivered  the  policy  to  plaintiff,  he  made  the  alleged  repre- 
sentation as  to  the  keeping  of  carbon  oil  in  the  insured  premises,  and 
made  them  in  accordance  with  the  existing  custom  of  that  and  other 
insurance  companies  in  insuring  stocks  of  merchandise  in  country 
stores,  then  plaintiff  cannot  recover. 

Refused  pro  forma. 

The  court  instructed  the  jury  to  find  for  the  plaintiff,  reserving  the 
points  presented  as  above.  Verdict  accordingly.  Subsequently  the 
court  entered  judgment  for  the  defendant  on  the  points  reserved  non 
obstante  veredicto.  Thereupon  the  plaintiff  took  this  writ,  assigning 
for  error  the  action  of  the  court  in  entering  judgment  for  defendant 
no7i  obstante  veredicto. 

Dalzell  (with  whom  was  Hampton).,  for  the  plaintiff  in  error. 

Schoyer  (with  whom  was  McGill),  for  the  defendant  in  error. 

Sterrett,  J.  The  subject  of  complaint,  in  both  specifications  of 
error,  is  the  entr}-  of  judgment  for  defendant  noti  obstante  veredicto. 
It  is  contended  that  upon  the  facts  established  by  the  verdict,  judgment 
should  have  been  entered  thereon  in  favor  of  plaintiff.  The  jury  were 
instructed  to  return  a  verdict  for  the  amount  claimed  by  him.  if  they 
were    satisfied   the  allegations   of    fact  contained   in   the   point   pre- 


512  KKOEGER   V.    PITCAIRN.  [CHAP.  III. 

sented  by  liim  were  true.  In  view  of  tliis,  the  finding  in  his  favor 
necessarily  implies  a  verification  of  the  several  matters  specified  in 
plaintift-s  point,  and  hence  it  must  now  be  regarded  as  containing  a 
truthful  recital  of  the  circumstances  connected  with  the  delivery  of  the 
policy  and  payment  of  the  premium. 

The  transaction,  as  therein  detailed,  clearly  amounted  to  a  mutual 
understanding  or  agreement  between  the  parties  that  the  stock  of 
merchandise,  mentioned  in  the  policy,  should  include  one  barrel  of 
carbon  oil ;  in  other  words,  that  the  plaintiff  should  have  the  privilege 
of  keeping  that  quantity  of  oil  in  connection  with  and  as  a  part  of  the 
stock  insured,  without  thereby  invalidating  his  polic}'.  It  is  impossible 
to  regard  the  transaction  in  anj-  other  light.  The  jurj'  found  that 
plaintiff  "  took  the  policy  upon  the  faith  "  of  the  representations  made 
by  defendant.  These  representations  were  not  merely  expressions  of 
opinion  as  to  the  meaning  of  the  policy.  On  the  contrarj-,  the  defend- 
ant, acting  as  its  agent  and  assuming  authority  to  speak  for  the  insur- 
ance company,  asserted  without  an}-  qualification  that  when  carbon  oil 
was  kept  as  plaintiff  was  in  the  habit  of  keeping  it —  a  single  barrel  at 
a  time —  it  was  unnecessar}-  to  mention  the  fact  in  the  policy,  or  other- 
wise obtain  the  consent  of  the  company- ;  that  no  notice  is  ever  taken 
of  it  unless  "it  is  kept  in  large  quantity-,  —  say  several  hundred  barrels. 
In  that  case,  when  it  is  wholesale,  it  should  be  mentioned  ;  but,  as  long 
as  it  is  kept,  not  more  than  a  barrel  in  the  store  at  a  time,  it  is  consid- 
ered as  general  merchandise  and  is  not  taken  notice  of  in  any  other 
waj'."  Such  was  the  language  employed  by  defendant,  evidently  for 
the  purpose  of  dispelling  an}'  doubt  that  existed  in  the  mind  of  the 
plaintiflT  and  inducing  him  to  accept  the  polic}'  and  pa}'  the  premium ; 
and,  to  that  end  at  least,  it  was  successful.  What  was  said  and  done 
by  defendant,  in  the  course  of  the  transaction,  amounted  to  more  than 
a  positive  assurance  that  the  accepted  meaning  of  the  policy  was  as 
represented  by  him.  In  effect,  if  not  in  substance,  his  declarations 
were  tantamount  to  a  proposition,  on  behalf  of  the  company  he  assumed 
to  represent,  that  if  the  insurance  was  effected,  it  should  be  with  the 
understanding  that  a  barrel  of  carbon  oil  was  included  in  and  formed 
part  of  the  insured  stock  of  merchandise,  without  being  specially 
mentioned  in  the  policy.  The  plaintiflf"  doubtless  so  regarded  his 
declarations,  and  relying  thereon,  as  the  jury  has  found,  accepted  the 
policy  on  the  terms  proposed,  and  thus  concluded,  as  he  believed,  a 
valid  contract  of  insurance,  authorizing  him  to  keep  in  stock,  as  he  had 
theretofore  done,  a  small  quantit}-  of  carbon  oil.  It  was  not  until  after 
the  property  was  destroyed  that  he  was  undeceived.  He  then  discov- 
ered that,  in  consequence  of  defendant  having  exceeded  his  authority, 
he  was  without  remedy  against  the  company.  Has  he  any  remedy 
against  the  defendant,  by  whose  unauthorized  act  he  was  placed  in  this 
false  position?  We  think  he  has.  If  the  president  or  anyone  duly 
authorized  to  represent  the  company  had  acted  as  defendant  did,  there 
could  be  no  doubt  as  to  its  liability.     Why  should  not  the  defendant 


BECT.  II.]  KKOEGER   V.    PITCAIRN.  513 

be  personally  responsible,  in  like  manner,  for  the  consequences,  if  h«, 
assuming  to  act  for  the  company,  overstepped  the  boundary  of  his 
authority  and  thereby  misled  the  plaintiff  to  his  injur}-,  whether  inten- 
tionally or  not?  The  only  difference  is  that  in  the  latter  the  authority 
is  self-assumed  while  in  the  former  it  is  actual ;  liut  that  cannot  be 
urged  as  a  sufficient  reason  why  plaintiff,  who  is  blameless  in  both 
cases,  should  bear  the  loss  in  one  and  not  in  the  other.  As  a  general 
rule,  "  whenever  a  party  undertakes  to  do  an}'  act  as  the  agent  of 
another,  if  he  does  not  possess  any  authority'  from  the  principal  there- 
for, or  if  he  exceeds  the  authority  delegated  to  him,  he  will  be  person- 
ally liaV)le  to  the  person  with  whom  he  is  dealing  for  or  on  account  of 
his  principal."  Story  on  Agency,  264.  The  same  principle  is  recog- 
nized in  Evans  on  Agenc}',  *301  ;  Whart.  on  Agency,  524;  2  Smith's 
Lead.  Cases,  380,  note ;  1  Pars,  on  Cont.  67 ;  and  in  numerous  adjudi- 
cated cases,  among  which  are  Hampton  v.  Speckenagel,  9  S.  «S:  R.  212, 
222  ;  Layng  v.  Stewart,  1  W.  *&  S.  222,  226  ;  McConn  v.  Lady,  10 
W.  N.  C.  493;  Jefts  v.  York,  10  Cnsh.  392;  Baltzen  v.  Nicolay,  53 
N.  Y.  467.  In  the  latter  case,  it  is  said,  the  reason  wh}'  an  agent  is 
liable  in  damages  to  the  person  with  whom  he  contracts,  when  he 
exceeds  his  authority,  is  that  the  party  dealing  with  him  is  deprived  of 
any  remed}-  upon  the  contract  against  the  principal.  The  contract, 
though  in  form  that  of  the  principal,  is-  not  his  in  fact,  and  it  is  but 
just  that  the  loss,  occasioned  by  there  being  no  A-alid  contract  with  him, 
should  be  borne  by  the  agent  who  contracted  for  him  without  authority. 
In  Layng  v.  Stewart,  siq^ra,  Mr.  Justice  Huston  says:  "It  is  not 
worth  while  to  be  learned  on  very  plain  matters.  The  cases  cited  show 
that  if  an  agent  goes  beyond  his  authority  and  employs  a  person,  his 
principal  is  not  bound,  and  in  such  case  the  agent  is  bound."  The 
plaintiff  in  error,  in  McConn  v.  Lad\',  supra,  made  a  contract,  believ- 
ing he  had  authorit}'  to  do  so,  and  not  intending  to  bind  himself  per- 
sonall}-.  The  jur}*  found  he  had  no  authority-  to  make  the  contract  as 
agent,  and  this  court,  in  affirming  the  judgment,  said:  "It  was  a 
question  of  fact  submitted  to  the  jury,  whether  the  plaintiff  in  error 
had  authority  from  the  School  Board  to  make  the  contract  as  their 
agent.  They  found  he  had  not.  He  was  personally  liable  whether  he 
made  the  contract  in  his  own  name  or  in  the  name  of  his  alleged  prin- 
cipal. It  is  a  mistake  to  suppose  that  the  only  remed}'  was  an  action 
against  him  for  the  wrong.  The  party  can  elect  to  treat  the  agent  as  a 
principal  in  the  contract." 

The  cases  in  which  agents  have  been  adjudged  liable  personally  have 
sometimes  been  classified  as  follows,  viz. :  1st.  "Where  the  agent  makes 
a  false  representation  of  his  authority'  with  intent  to  deceive.  2d. 
Where,  with  knowledge  of  his  want  of  authority,  but  without  intending 
any  fraud,  he  assumes  to  act  as  though  he  were  fully  authorized ;  and, 
3d.  Where  he  undertakes  to  act,  bona  fide  believing  he  has  authority, 
but  in  fact  has  none,  as  in  the  case  of  an  agent  acting  under  a  forged 
power  of   attorney.     As  to  cases  fairly  brought  within  either  of  the 


514  PATTERSON    V.   LIPPINCOTT.  [CHAP.  IIL 

first  two  classes  there  cannot  be  anj*  doubt  as  to  the  personal  liability 
of  the  self-constituted  agent ;  and  his  liabilit}'  may  be  enforced  either 
b}'  an  action  on  the  case  for  deceit,  or  b}-  electing  to  treat  him  as  prin- 
cipal. While  the  liabilit}-  of  agents,  in  cases  belonging  to  the  third 
class,  has  sometimes  been  doubted,  the  weight  of  authority  appears 
to  be  that  they  are  also  liable.  In  Story  on  Agenc}',  the  learned  author 
recognizing  the  undoubted  liability  of  those  belonging  to  the  first  two 
classes  says,  "Another  case  may  be  put  which  may  seem  to  admit  of 
some  doubt,  and  that  is,  where  the  part3'  undertakes  to  act  as  an  agent 
for  the  principal,  bona  fide  believing  he  has  due  authority,  and  therefore 
acts  under  an  innocent  mistake.  In  this  last  case,  however,  the  agent 
is  held  b}'  law  to  be  equallj'  as  responsible  as  he  is  in  the  two  former 
cases,  although  he  is  guilty  of  no  intentional  fraud  or  moral  turpitude. 
This  whole  doctrine  proceeds  upon  a  plain  principle  of  justice  ;  for 
ever^'  person,  so  acting  for  another,  by  a  natural  if  not  a  necessar}' 
implication,  holds  himself  out  as  having  competent  authority  to  do  the 
act ;  and  he  thereby-  drawls  the  other  part}-  into  a  reciprocal  engage- 
ment. If  he  has  no  such  authority,  and  acts  bonafide^  still  he  does  a 
wrong  to  the  other  party  ;  and  if  that  wrong  produces  injury  to  the 
latter,  owing  to  his  confidence  in  the  truth  of  an  express  or  implied 
assertion  of  authority  by  the  agent,  it  is  perfectly'  just  that  he  who 
makes  such  assertion  should  be  personall}'  responsible  for  the  conse- 
quences, rather  than  that  the  injury  should  be  borne  hy  the  other  party 
who  has  been  misled  by  it."  Story  on  Agency,  264.  This  principle  is 
sustained  by  the  authorities  there  cited,  among  which  is  Smout  v. 
Ilbery,  10  Mees.  &  Wels.  1,9. 

"Without  pursuing  the  subject  further,  we  are  of  opinion  that,  upon 
the  facts  established  by  the  verdict,  judgment  should  have  been  entered 
for  the  plaintiff,  on  the  question  of  law  reserved. 

Meversed, 


PATTERSON  v.   LIPPINCOTT. 

Supreme  Court  of  New  Jersey.     1885. 
[47  N.  J.  L.  457.] 

On  certiorari  to  the  Court  of  Common  Pleas  of  Atlantic  County. 

For  the  prosecutor,  J.  J.  Crandall. 

For  the  defendant,  Slape  c0  Stephany. 

ScuDDER,  J.  An  action  of  debt  was  brought  in  the  court  for  the 
trial  of  small  causes  by  Jacob  M.  Patterson  against  Barclay  Lippincott, 
to  recover  the  balance,  S75,  claimed  under  a  contract  in  writing  for  the 
sale  of  the  exclusive  right  to  use,  manufacture,  and  sell  the  plaintiff's 
patent    "  air-heating   attachment,"    in  Atlantic   county,  New  Jersey. 


SECT.  II.]  PATTERSON    V.    LIPPINCOTT.  515 

The  writing  was  signed  "Geo.  P.  Lippincott,  per  Barclay  Lippincott," 
on  the  part  of  the  purchaser.  The  state  of  demand  avers  that  b}' 
virtue  of  this  agreement  the  plaintiff  did  in  due  form  convey  said  patent 
riglit  to  said  George  P.  Lippincott,  that  said  George  and  Barclay,  on 
request,  have  refused  to  pay  said  balance,  and  that,  since  payment  be- 
came due,  the  plaintifT  has  found  out  and  charges  that  said  George  is 
under  the  age  of  twenty-one  years.  He  further  avers  that  he  never  had 
any  contract  or  negotiations  with  George,  and  that  Barclay's  warranty 
of  authorit}'  to  act  for  his  minor  son  is  broken,  whereby  an  action  has 
accrued  to  the  plaintiff  against  the  defendant. 

The  averment  that  the  plaintiff  never  had  any  contract  or  negotia- 
tions with  George,  is  not  sustained  b}'  the  proof,  for  the  testimonv  of 
Joseph  N.  Risle}',  the  agent  who  made  the  sale,  wiiich  is  the  only  evi- 
dence on  this  point  that  appears  in  the  case,  is,  that  the  defendant  told 
him  he  was  going  out  of  business  and  intended  to  transfer  it  to  George  ; 
requested  him  to  see  George  ;  he  did  so  ;  talked  with  him  ;  he  looked 
at  the  i)atent ;  was  satisfied  with  it,  and  talked  with  his  father  about 
buying  it.  Tlie  deed  for  the  patent  right  in  Atlantic  count}'  was  drawn 
to  George  P.  Lippincott.  It  is  proved  b}'  the  admission  of  the  defend- 
ant, Barcla}-  Lippincott,  that  at  the  time  of  such  sale  and  transfer  his 
son  George  was  a  minor.  This  admission  is  competent  testimony  in 
this  suit  against  him. 

A  verdict  of  a  jurv  was  given  for  the  plaintiff  against  the  defendant 
in  the  court  for  the  trial  of  small  causes  ;  and  on  the  trial  of  the  appeal 
in  the  Court  of  Common  Pleas  there  was  a  judgment  of  nonsuit  against 
the  plaintiff.  The  reason  for  tlie  nonsuit  does  not  appear  on  the  record, 
but  the  counsel  have  argued  the  cause  before  us  on  the  case  presented 
by  the  pleadings  and  proofs,  the  contention  being  here,  as  it  was  below, 
that  the  plaintiff  could  not  aver  and  show  the  infancy  of  George  P.  Lip- 
pincott, and  bring  this  action  against  Barclay  Lippincott,  as  principal 
in  the  contract,  in  contradiction  of  its  express  terms. 

On  the  face  of  the  written  agreement  George  P.  Lippincott  is  the 
principal  and  Barclay  Lippincott  the  agent.  The  suit  on  the  contract 
should  therefore  be  against  the  principal  named,  and  not  against  the 
agent,  unless  there  be  some  legal  cause  shown  to  change  the  respon- 
sibility. The  cause  assigned  by  the  plaintiff  is  the  infancy  of  George 
at  the  time  the  agreement  was  made  in  his  name  by  his  father.  The 
authority  on  which  he  bases  his  right  of  action  is  Bay  v.  Cook,  2  Zab. 
343,  which  follows  and  quotes  Mott  v.  Hicks,  1  Cow.  536,  to  the  effect 
that  if  a  person  undertakes  to  contract,  as  agent,  for  an  individual  or 
corporation,  and  contracts  in  a  manner  which  is  not  legalh'  binding 
upon  his  principal,  he  is  personally  responsible  ;  and  the  agent,  when 
sued  on  such  contract,  can  exonerate  himself  from  personal  respon- 
sibility onl}'  by  showing  his  authority  to  bind  those  for  whom  he  has 
undertaken  to  act.  Bay  v.  Cook  was  an  action  against  an  overseer 
who  had  employed  a  phj'sician  to  attend  a  sick  pauper,  witliout  an  order 
for  relief  under  the  provisions  of  the  act  concerning  the  poor.     As  his 


516  PATTERSON   V.   LIPPINCOTT.  [CHAP.  III. 

parol  contract  with  the  physician  was  entirel}-  without  authoritj'  to  bind 
the  township,  it  was  said  that  he  had  only  bound  himself  to  pay  for  the 
services  rendered  at  his  request. 

Later  cases  have  held  that  an  agent  is  not  directly  liable  on  an  in- 
strument he  executes,  without  authority,  in  another's  name  ;  that  the 
remedy  in  such  case  is  not  on  the  contract,  but  that  he  may  be  sued 
either  for  breach  of  warranty  or  for  deceit,  according  to  the  facts  of 
the  case.  Jenkins  v.  Hutchinson,  13  Q.  B.  744  ;  Lewis  v.  Nicholson, 
18  Q.  B.  503;  Baltzer  v.  Nicolay,  53  N.  Y.  467;  White  v.  Madison, 
26  N.  Y.  117,  and  many  other  cases  collected  in  the  notes  in  Whart.  on 
Agency,  §§  524,  532,  and  notes  to  Thomson  v.  Davenport,  9  B.  &  C. 
78,  in  2  Sm.  Lead.  Cas.  *358  (Am.  ed.)  Andrews,  J.,  in  Baltzer  v. 
Nicolay,  supra,  sa,\s:  "The  ground  and  form  of  the  agent's  liability 
in  such  a  case  has  been  the  subject  of  discussion,  and  there  are  con- 
flicting decisions  upon  the  point ;  but  the  later  and  better-considered 
opinion  seems  to  be,  that  his  liability,  when  the  contract  is  made  in  the 
name  of  his  principal,  rests  upon  an  implied  warrant^'  of  his  authority 
to  make  it,  and  that  the  remed}^  is  b}'  an  action  for  its  breach." 

Although  the  state  of  demand  in  the  present  case  is  uniformly  drawn, 
there  is  in  the  last  sentence  a  charge  that  the  defendant's  warrant}'  of 
authorit}'  in  pretending  to  act  for  said  minor  is  broken,  whereby  an 
action  has  accrued.  This  alleged  breach  of  an  implied  warranty  is 
founded  on  the  assumption  that  the  son  could  not  confer  any  authority, 
during  his  minority,  to  his  father  to  act  for  him  in  the  purchase  of  his 
patent  right.  There  are  two  answers  to  this  position.  The  act  of  an 
infant  in  making  such  contract  as  this,  which  may  be  for  his  benefit  in 
transacting  business,  either  directl}'  or  through  the  agenc}'  of  another, 
is  voidable  only,  and  not  absolutel}'  void,  and  therefore  there  is  no 
breach  of  the  implied  warrant}'  unless  there  be  proof  showing  that  the 
act  of  the  agent  was  entirel}'  without  the  infant's  knowledge  or  con- 
sent. The  mere  fact  of  the  infancy  of  the  principal  will  not  constitute 
such  breach. 

It  was  argued  in  Whiting  v.  Dutch,  14  Mass.  457,  that  a  promissory 
note  signed  b}'  Dutch  for  his  partner,  Green,  who  was  a  minor,  was 
void  as  to  Green,  because  he  was  not  capable  of  communicating 
authority  to  Dutch  to  contract  for  him,  and  that,  being  void,  it  was  not 
the  subject  of  a  subsequent  ratification.  But  the  court  held  that  it  was 
voidable  onl}',  and  having  been  ratified  by  the  minor  after  he  came  of 
age,  it  was  good  against  him.     See  Tyler  on  Inf ,  c.  3,  §§  14,  18. 

Another  answer  is,  that  the  defence  of  infanc}'  to  this  contract  with 
the  plaintiflT  can  only  be  set  up  by  the  infant  himself,  or  those  who 
legally  represent  him.  Infanc}'  is  a  personal  privilege  of  which  no  one 
can  take  advantage  but  himself.  Voorhees  v.  Wait,  3  Gr.  343  ;  Tyler 
on  Inf.,  c.  4,  §  19  ;  Bingham  on  Inf.  49. 

In  this  case  the  plaintiff  seeks  to  disaffirm  the  infant's  contract  with 
him,  in  liis  own  behalf,  and  sue  a  third  part}'  on  the  contract,  whose 
authority  to  bind  him  the  infant   has  not  denied.     The  privilege  of 


SECT.  II.]  FIKBANK'iS    EXEGUTOKS    V.    HUMPHKEYS.  517 

affirming  or  disaffirming  the  contract  belongs  to  the  infant  alone,  and 
the  plaintiff  cannot  exercise  it  for  him.  The  mere  refusal  to  pay, 
charged  in  the  demand  and  proved,  is  not  a  denial  of  the  defendant's 
authority  to  bind  the  infant,  for  it  may  be  based  on  the  failure  of  con- 
sideration, the  invalidity  of  the  patent,  fraudulent  representations,  or 
other  causes. 

The  judgment  of  nonsuit  entered  in  the  Court  of  Common  Pleas  will 
be  affirmed. 


FIRBANK'S   EXECUTORS   v.   HUMPHREYS   and  others. 

Court  of  Appeal.     1886. 

[18  Q.  B.  D.  54.] 

Appeal  from  the  judgment  of  Mathew,  J.,  on  the  trial  of  the  cause 
without  a  jury.^  .   .   . 

The  defendants  appealed,  but  before  the  appeal  came  on  for  hearing 
Firbank  died,  and  his  executors  were  substituted  as  plaintiffs. 

Eigby,  Q.  C.  (with  him  R.  S.  Wright  and  H.  H.  Asquith),  Sir 
Horace  Davey,  Q.  C.  (with  him  Cohen,  Q.  C,  and  W.  Crraham),  If.  D. 
Green,  Q.  C,  Mackaskie^  and  D.  Walker.,  for  various  defendants. 

Sir  JR.  Webster.,  A.  G.,  and  Finlay,  Q.  C.  (with  them  H.  Sutton), 
for  the  plaintiffs. 

^igl'y-,  Q-  C.,  in  reply. 

Lord  EsHER,  M.  R.  In  this  case  there  is  a  certain  complication 
in  the  facts,  but  no  difficult}'  as  to  the  law  when  once  the  facts  are 
ascertained.  The  plaintiff  in  the  action  was  a  railwa}-  contractor,  and 
entered  into  a  contract  with  the  Charnwood  Forest  Railway  Company 
to  make  the  railway.  Under  that  contract  he  was  to  be  paid  in  cash 
as  the  work  went  on,  on  the  certificates  of  the  engineer.  The  railway 
company  had  no  money  of  its  own,  and  in  order  to  carr}-  out  their 
scheme  and  fulfil  their  contract  with  Firbank  the}*  entered  into  a  finan- 
cial arrangement  with  Maddison,  which  it  is  not  necessary  minutely  to 
consider,  by  which  he  undertook  to  place  with  the  public  certain  deben- 
ture stock  and  shares  which  the  company  had  power  to  issue.  He  was 
in  fact  to  finance  the  company,  and  as  part  of  the  agreement  he  arranged 
that  he  would  pa}'  Firbank  on  the  certificates.  He  entered  into  no 
agreement  with  Firbank,  but  his  agreement  was  with  the  company,  for 
whom  he  was  agent.  The  work  proceeded  and  certificates  were  given, 
and  Maddison  obtained  money  by  placing  debenture  stock  or  otherwise, 
and  paid  Firbank  on  some  of  these  certificates,  but  after  a  time  he 
failed  to  do  so,  and  I  think  there  cannot  be  a  doubt  that  in  conjunction 
with  the  secretary  he  acted  dishonestly  by  the  company.     He  placed 

1  The  reporter's  statement  is  omitted.  —  Ed. 


518  fikbank's  executors  v.  Humphreys.         [chap.  hi. 

debenture  stock  and  received  the  proceeds,  and  instead  of  keeping  bis 
contract  with  the  compan}'  he  and  the  secretary-  must  ha\e  disposed 
between  them  of  the  greater  part  of  the  funds  so  obtained.  II is  not 
paying  Firbank  was  no  faihire  of  duty  to  or  of  contract  witli  him,  but  a 
breach  of  the  contract  with  the  company.  Firbank  was  by  his  agree- 
ment entitled  to  be  paid  cash  b}'  tlie  company  for  the  worlc  done, 
and  if  they  could  not  get  it  through  Maddison  they  were,  as  between 
themselves  and  Firbank,  bound  to  get  it  otherwise. 

I  cannot  say,  without  looIi:ing  more  minutely  into  the  contract, 
whether  Firbank  could  have  thrown  it  up,  or  whether  he  would  have 
been  bound  to  continue  to  do  the  work.  However  that  may  be,  it 
became  necessar}'  as  a  matter  of  business  that  a  new  arrangement 
should  be  made  between  Firbank  and  the  company.  [His  Lordship 
then  dealt  with  the  dispute  as  to  the  facts,  and  continued  :  — ]  The 
matter  stands,  then,  that  Firbank  was  to  have  debenture  stock  issued 
to  him  in  payment  of  his  past  claim,  and  was  to  go  on  with  the  works 
on  the  terms  of  the  new  agreement.  I  now  come  to  the  meeting  of  the 
26th  of  Jul^".  All  the  directors  were  present  at  the  meeting  on  that 
da}-,  and  it  would  be  absurd  to  suppose  that  they  did  not  know  of  the 
difficulties  of  the  compan}-,  and  that  Firbank  had  not  been  paid.  It  is 
in  evidence  that  the  agreement  was  explained  to  all  tlie  directors 
present —  what  agreement?  Not  only  that  for  continuing  the  work  in 
future,  for  that  would  not  b}-  itself  have  set  them  free  from  their  diffi- 
culty, but  the  whole  agreement.  Under  these  circumstances  we  are  all  of 
opinion  that  each  of  the  directors  had  the  matter  explained  and  knew 
what  was  being  done.  What  was  done?  The  agreement  was,  that  if 
Firbank  would  go  on  with  the  work  he  should  be  paid  in  a  certain 
manner,  but  it  was  also  part  of  the  agreement  that  if  he  would  accept 
debenture  stock  in  lieu  of  his  right  to  cash  the  company  would  issue 
debenture  stock  to  him.  None  of  the  directors  knew  that  this  would 
be  an  over-issue  of  debenture  stock,  and  the  plan  the}'  adopted  was  the 
easiest  wa}'  of  getting  rid  of  their  difficulties.  If  they  agreed  to  that 
arrangement  that  would  be  an  agreement  between  Firbank  and  the 
com  pan}'  by  which  the  company  would  be  bound.  There  was  then  a 
binding  contract  with  the  company  that  he  would  accept  debentures  for 
the  debt  already  due,  and  if  they  were  issued  go  on  with  the  work.  If 
nothing  had  occurred  but  a  breach  of  that  agreement  I  apprehend  that 
the  directors  would  not  have  been  liable.  The  arrangement  of  course 
was  that  valid  debenture  stock  should  be  issued,  and  they  must  have 
known  that  they  would  have  to  issue  it  on  behalf  of  the  con:.i)any. 
Under  these  circumstances  what  was  done?  At  the  meeting  of  the 
26th  of  July  the  agreement  was  produced  and  explained,  and  the  cer- 
tificates for  the  debenture  stock  were  also  produced  at  that  meeting,  and 
were  signed  by  two  of  the  defendants.  It  seems  to  me  that  the  defend- 
ants by  agreeing  that  two  of  their  number  should  sign  the  certificates 
authorized  this  issue  as  much  as  if  every  one  of  them  had  signed  and 
handed  over  the  certificates.     They,  therefore,  issued  them,  and  whether 


SECT.  II.]  FIRBANK'S    EXECUTORS   V.    HUMrHREYS.  519 

they  were  banded  over  that  da}'  or  two  days  later  is  immaterial,  when- 
ever it  was  done  it  was  by  and  for  the  directors.  The}'  did  not  know, 
but  the  truth  was,  that  the  certificates  could  not  bind  the  company 
and  were  worthless  to  Firbank,  because  the  powers  of  the  company  in 
this  direction  had  alread}^  been  exhausted,  and  this  was  an  over-issue. 
Under  these  circumstances  had  Firbank  any  right  to  recover  personally 
from  the  defendants?  On  the  one  side,  it  is  said  that  according  to  the 
rule  in  CoUen  v.  Wright,  7  E.  &  B.  301,  8  E.  &  B.  G47,  Firbank  had 
a  right  to  sue  the  directors.  The  way  in  which  it  is  put  is,  that  the 
dn-ectors  were  agents  of  the  company  and  had  authority  to  issue  deben- 
ture stock  binding  on  the  company,  provided  the  powers  of  issuing  such 
stock  had  not  been  exhausted  ;  but  they  had  no  authority  to  make  any 
over-issue  so  as  to  bind  the  company.  By  issuing  these  certificates  it 
is  said  that  it  must  be  implied  that  they  had  affirmed  that  they  had 
authority  to  issue  them,  and  that  Firbank  accepted  them,  relying  on 
that  affirmation  of  authority,  and  as  b}'  reason  of  want  of  authorit}-  he 
has  been  damaged,  the  defendants  have  made  themselves  personally 
liable  within  the  rule  laid  down  in  Collen  v.  Wright,  7  E.  &  B.  301,  8 
E.  &  B.  647.  On  the  other  hand,  it  is  said  that  cannot  be  so,  because 
this  debenture  stock  was  issued  in  fulfilment  of  a  contract  which  was 
binding  on  the  company,  whereas  in  that  case  the  contract  which  the 
agent  professed  to  enter  into  on  behalf  of  his  principal  was  invalid  as 
against  the  principal.  I  think  the  language  used  in  Weeks  u.  Propert, 
L.  R.  8  C.  P.  427,  and  Dixon  v.  Renter's  Telegram  Co.,  3  C.  P.  D.  1, 
shows  that  the  principle  of  Collen  v.  Wright  extends  further  than  the 
case  of  one  person  inducing  another  to  enter  into  a  contract.  The 
rule  to  be  deduced  is,  "  that  where  a  person  by  asserting  that  he  has 
the  authority  of  the  principal  induces  another  person  to  enter  into  an}^ 
transaction  which  he  would  not  have  entered  into  but  for  that  assertion, 
and  the  assertion  turns  out  to  be  untrue,  to  the  injury  of  the  person  to 
whom  it  is  made,  it  must  be  taken  that  the  person  making  it  undertook 
that  it  was  true,  and  he  is  liable  personally  for  the  damage  that  has 
occurred." 

That  being  the  rule,  I  am  of  opinion  that  all  these  defendants  by  issuing 
this  debenture  stock  asserted  to  Firbank  that  they  had  authority  to 
bind  the  company  by  that  issue,  and  whether  that  was  in  fulfilment  of 
a  binding  or  invalid  contract  is  immaterial.  The  question  then  arises, 
for  what  damages  they  are  liable.  I  do  not  say  that  in  all  such  cases 
they  would  be  liable  for  the  nominal  amount  of  the  stock,  — for  instance, 
if  the  company  had  been  solvent  there  was  nothing  to  prevent  Firbank 
suing  for  the  debt  due  to  him  and  recovering  from  the  company.  He 
might  have  been  put  to  some  expense  by  the  postponement  of  his  cash 
payments  and  by  having  to  sue  the  company-,  and  I  am  not  b}'  any 
means  clear  that  the  damages  in  such  a  case  in  an  action  against  the 
directors  would  have  been  merely  nominal.  The  damages,  under  the 
general  rule,  are  arrived  at,  by  considering  the  difference  in  the  posi- 
tion he  would  have  been  in  had  the  representation  been  true,  and  the 


520  firbank's  executors  v.  Humphreys.         [chap,  iil 

position  lie  is  actuall}-  in,  in  consequence  of  its  being  untrue.  If  the 
assertion  had  been  true  he  would  have  had  valid  debenture  stock  which 
would  have  been  a  first  charge  on  the  property  of  the  company,  and,  as 
I  understand,  that  would  have  been  a  good  security.  If  he  is  post- 
poned or  thrown  back  on  his  right  of  action  against  the  company,  the 
company  is  in  such  a  position  that  he  will  get  nothing.  Therefore,  in 
the  present  case  the  damages  are  the  difference  between  what  the 
debenture  stock  would  have  been  worth  to  him,  and  what  he  can  get 
from  the  company  on  his  claim,  which  is  nothing,  and  therefore  the 
damages  are  the  full  amount  of  the  debenture  stock,  and  the  judgment 
for  that  amount  must  be  affirmed. 

LiNDLEY,  L.  J.^  Whether  the  contractor  is  entitled  to  recover  this 
amount  from  the  directors  depends  upon  two  questions,  viz. :  1.  Whether 
the  directors  are  to  be  treated  as  having  impliedly  warranted  that  they, 
as  agents  of  the  company,  had  authority  to  issue  £18,400  debenture 
stock?  2.  What  is  the  measure  of  damages  for  which  they  are  liable 
if  the}-  are  to  be  so  treated? 

The  first  question  must  in  m}'  opinion  be  answered  in  the  contrac- 
tor's favor.  He  could  not  know  whether  the  company  had  or  had  not 
already  issued  the  full  amount  of  debenture  stock  which  it  was  author- 
ized to  issue.  He  was  justified  in  assuming  that  the  directors  had  power 
to  do  what  they  did  ;  and  by  giving  him  the  debenture  stock  certificates 
they  in  truth  represented  to  him  that  the}-  had  such  power.  Moreover, 
they  in  effect  requested  him  not  to  insist  on  paj-ment  in  cash,  and  to 
go  on  with  the  works  in  consideration  of  receiving  debenture  stock. 
These  circumstances  bring  the  case  directly  within  CoUen  v.  Wright, 
7  E.  &  B.  301,  8  E.  &  B.  647,  and  that  class  of  cases.  There  is  the 
representation  by  the  directors  to  the  contractor  and  consideration  given 
by  him  in  the  shape  of  action  by  him  on  the  faith  of  such  representa- 
tion. Nothing  more  is  necessary  to  make  the  principle  laid  down  in 
CoUen  V.  Wright  applicable  to  the  case.  The  fact  that  the  directors 
were  themselves  deceived,  and  did  not  know  or  suspect  that  they 
had  not  the  power  to  do  what  they  did,  is  immaterial  in  cases  of  this 
description.  Speaking  generally  an  action  for  damages  will  not  lie 
against  a  person  who  honestly  makes  a  misrepresentation  which  mis- 
leads another.  But  to  this  general  rule  there  is  at  least  one  well- 
established  exception,  viz.,  where  an  agent  assumes  an  authority  which 
he  does  not  possess,  and  induces  another  to  deal  with  him  upon  the 
faith  that  he  has  the  authority  which  he  assumes.  The  present  case  is 
within  this  exception,  and  the  directors  are  liable  to  the  contractor  for 
the  misrepresentation  the}'  made  to  him. 

The  next  question  is  as  to  the  amount  of  damages  to  which  the  con- 
tractor is  entitled.  The  directors  cannot  be  treated  as  having  warranted 
the  solvency  of  the  company,  and  if  genuine  debenture  stock  of  the 
company  had  been  worthless,  the  measure  of  damages  would  have  been 

^  After  stating  the  case.  —  Ed. 


SECT.  II.J  MEEK    V.    WENDT.  521 

nil,  Init  in  tliis  case  the  conipuiij's  del)enture  stock  is  and  always  has 
been  worth  twenty-  shillings  in  the  pound.  Consequently  the  value  of 
£18,400  genuine  debenture  stock  is  the  measure  of  the  contractor's 
loss.  That  is  what  he  agreed  to  take  in  satisfaction  of  a  larger  demand, 
and  that  is  what  he  has  lost  b\-  reason  of  the  mi.srei)rescutation  made 
tx)  him.  This  was  the  view  taken  by  Mr.  Justice  Mathew.  I  think  it 
correct.     The  appeal  is  dismissed  with  costs. 

Lopes,  L.  J.     I  agree  with  the  judgments  that  have  been  given,  and 
I  have  nothing  to  add.  Aj^peal  dismissed. 


MEEK   V.    WENDT   &    CO. 

Queen's  Bench  Division.     1888. 

[21  Q.  B.  D.  126] 

Case  tried  before  Charles,  J.,  without  a  jury.  The  facts  and  argu- 
ments appear  in  the  judgment. 

Bigham,  Q.  C,  and  Joseph  Walton^  were  for  the  plaintiff. 

Barnes,  Q.  C.,  and  Butler  Aspinall,  were  for  the  defendants. 

Charles,  J.  In  this  case,  which  was  tried  before  me  without  a 
jur}',  at  Liverpool,  the  plaintiff  seeks  to  recover  damages  from  the 
defendants  for  breach  of  warranty  of  authority,  under  the  following 
circumstances.  The  plaintiff  was  in  1887  the  holder  of  two  policies 
of  insurance  on  the  ship  Mindora^  effected  with  two  insurance  com- 
panies in  San  Francisco  called  the  "  Union,"  and  the  ''Sun."  Each 
policy  was  for  £1,000,  and  provided  thus  for  payment  of  any  loss  : 
"  Loss  if  any  hereunder  payable  by  Messrs.  the  Anglo-Californian 
Bank  in  London  three  days  after  sight  of  the  certificate  of  loss  ap- 
proved by  E.  E.  Wendt  of  London,  or  Richard  Lowndes  of  Liverpool, 
accompanied  by  this  policy."  A  loss  having  occurred,  and  the  com- 
panies having  repudiated  liability,  an  action  was  commenced  in  England 
against  each  company,  and  proceedings  were  duly  taken  for  service  of 
the  writs  out  of  the  jurisdiction.  The  defendant  companies  did  not 
appear,  and  judgment  by  default  was  signed  for  £1,000  against  each 
company.  Negotiations  for  a  settlement  thereupon  took  place  between 
the  plaintiff  and  the  defendants,  Messrs.  Wendt  &  Co.  of  London,  who 
represented  the  two  companies  in  this  country.  A  sum  of  £300  was 
in  the  early  part  of  1887  offered  by  each  company,  but  was  refused. 
In  August,  however,  the  plaintiff  expressed  his  willingness  to  accept 
that  sum,  and  on  the  26th  the  defendants  wrote  to  the  plaintiff's  solici- 
tors, Messrs.  Simpson  &  North,  as  follows:  "As  so  long  a  time  has 
now  elapsed  since  the  offer  of  our  clients  was  first  made,  we  cannot  go 
further  into  the  matter  just  now,  but  have  at  once  written  to  San  Fran- 
cisco for  instructions."  On  September  13,  the  L^'nion  Company  wrote 
to  the  defendants  stating  that  they  would  adhere  to  their  offer,  but  no 
answer  was  received  from  the  Sun.     The  defendants  thereupon  tele* 


522  MEEK   V.    WENDT.  fCHAP.  IH. 

graphed  on  September  30  to  San  Francisco,  and  received  an  answer 
on  October  1,  which  they  supposed  authorized  them  to  accept  the 
plaintiff's  offer.  The  telegram  of  October  1  had  not  in  fact  been  sent 
•with  the  authority  of  the  Sun.  On  receipt  of  this  telegram  the  defend- 
ants wrote  to  the  plaintiff's  solicitors  in  these  words:  "•  We  have  now 
heard  from  our  clients  in  San  Francisco,  and  the  Union  and  Sun 
Insurance  Companies  are  prepared  to  abide  by  the  offer  they  have 
made  some  time  ago,  although  tlie  same  was  not  accepted  at  the  time. 
Will  you  please  send  us  up  the  policies?  We  can  then  doubtless 
arrange  for  an  earl}'  settlement.  Our  clients  insist  that  the  judgments 
you  have  obtained  against  them  must  be  cancelled  in  a  formal  manner." 
The  policies  and  judgments  were  forwarded  on  October  3.  On  the 
7th  the  defendants'  solicitors  sent  the  judgments  to  the  plaintiff's 
solicitors,  with  releases  indorsed  for  the  plaintiff's  execution.  He 
executed  them,  and  the}'  were  returned  on  the  8th.  On  the  10th  the 
defendants'  solicitors  wrote  to  the  plaintiff's  solicitor:  "We  have 
received  the  judgments,  with  the  releases  indorsed  thereon,  and  now 
forward  you  the  policies  with  the  certificates,  and  on  presentation  at 
the  bank,  the  Anglo-Californian  Bank  in  London,  you  will  obtain  pa}'- 
ment.  We  should  saj'  you  will  be  able  to  present  the  policies  through 
your  own  bankers.  The  bankers  have  already'  had  it  notified  to  them 
that  the  certificates  have  been  granted."  Pa^'ment  in  respect  of  the 
Sun  policy  certificate  was  refused  to  the  plaintiff  by  the  Anglo-Cali- 
fornian Bank  on  instructions  from  the  Sun  Company  cabled  from 
America.  Some  correspondence  between  the  solicitors  of  the  plaintiff 
and  the  defendants  took  place  in  November  and  December,  and  the 
mistake  under  which  the  defendants  had  acted  was  fully  explained.  It 
was  in  no  wa}'  disputed  that  the  defendants  had  throughout  acted  bona 
fide  in  the  matter. 

On  Januar}'  8  the  plaintiff's  solicitors  wrote  to  the  defendants : 
*'  Since  the  Sun  Company  repudiate  A'our  action  in  settling  this  matter, 
Mr.  Meek  instructs  us  to  apph'  to  yon  for  the  amount  agreed  to  be 
paid  to  him  as  the  consideration  for  releasing  the  judgment  against  the 
company."  In  repl}'  the  defendants'  solicitors  returned  the  release, 
which  Messrs.  Wendt  &  Co.  had  never  parted  with,  and  pointed  out 
that  Mr.  Meek  could  cancel  it,  and  remain  with  his  remed}'  under  his 
judgment  for  £1,000.  The  plaintiff's  solicitors  returned  the  release, 
notifying  that  Mr.  Meek  held  the  defendants  liable  for  the  sum  of  £300, 
to  recover  which  and  certain  expenses  thrown  away  this  action  was 
brought. 

At  the  trial  it  was  not  seriously  contested  that  the  defendants  had 
in  their  letter  dated  October  1  innocent!}'  represented  themselves  as 
having  the  authority  of  the  Sun  Company  to  settle  the  claim  of  the 
plaintiff  for  £300,  and  the  question  principally  discussed  was  as  to  the 
proper  measure  of  damages  for  the  defendants'  false  representation  of 
authority.  The  plaintiff  contended  that  he  was  entitled  to  the  full  sum 
of  £300,  and  the  expenses  he  had  incurred  in  negotiating  the  eompro- 


SECT.  II.]  MEEK   V.   WENDT.  523 

mise.  The  defendants  paid  into  Court  a  sum  sufficient  to  meet  sucli 
expenses  as  had  been  incurred  subsequent  to  October  1,  but  denied 
an}'  further  liability'.  The  matter  therefore  to  be  decided  is,  whether 
the  plaintiff  is  entitled  to  an}',  and  what,  additional  damages. 

Now  he  is  entitled  to  all  the  damages  which  are  the  natural  and 
proximate  consequence  of  the  false  assertion  of  authority.  "The 
measure  of  damages,"  says  Lord  Esher,  M.  R.,  in  la  re  National 
Coffee  Palace  Co.,  24  Ch.  D.  371,  "  in  actions  for  breach  of  warranty 
of  authority'  is  always  the  same  in  every  case.  I  will  not  consider  what 
theoretically  it  ought  to  be,  but  I  sa}'  we  must  decide  it  according  to 
the  rule  which  has  been  followed  for  a  series  of  years.  Spedding  v. 
Nevell,  L.  R.  4  C.  P.  212,  and  Godwin  v.  Francis,  L.  R.  5  C.  P.  295, 
are  cases  in  which  the  plaintiff  was  the  intended  purchaser,  and  Simons 
V.  Patchett,  7  E.  &  B.  568,  was  a  case  in  which  the  plaintiff  was  the 
intended  vendor,  and  in  all  these  cases  the  Court  laid  down  that 
the  measure  of  damages  was  what  the  plaintiff  actually  lost  b}'  losing 
the  particular  contract  which  was  to  have  been  made  b}-  the  alleged 
principal  if  the  defendant  had  had  the  authorit}'  he  professed  to  have : 
in  other  words,  what  the  plaintiff  would  have  gained  b}'  the  contract 
which  the  defendant  warranted  should  be  made."  Applying  this  rule 
to  the  present  case,  the  plaintiff,  b}'  losing  the  particular  contract 
which  was  to  have  been  made,  has  prima  facie  lost  the  expenses 
thrown  away,  and  the  sum  of  £300,  which  1  have  no  doubt  he  would 
have  obtained  without  delay  or  difficult}*  in  London  from  the  Anglo- 
Californian  Bank  within  three  days  after  sight  of  the  approved  certifi- 
cates. But  then  it  is  contended  by  the  defendants  that  the  plaintiff  is 
in  a  position  to  enforce  all  his  original  rights  against  the  company  on 
the  judgment  and  on  the  policy,  and  that  these  are  worth  at  least  as 
much  as  £300,  so  that  the  plaintiff  has  in  truth  lost  nothing  beyond  the 
expenses  thrown  away.  But  with  regard  to  the  judgment,  it  was  not 
disputed  that  the  law  as  to  enforcing  foreign  judgments  is  the  same  in 
the  Courts  of  the  United  States  as  in  our  own,  and  according  to  our 
law  the  judgment  could  not  be  effectively  put  in  suit  in  the  Courts  of 
the  United  States,  inasmuch  as  the  defendant  compan}'  were  not  P^ng- 
lish  subjects  or  resident  in  England  either  when  the  polic}'  was  issued 
or  when  the  suit  was  commenced.  This  seems  clear  from  the  case  of 
Schibsby  y.Westenholz,  L.  R.  6  Q.  B.  155,  per  Blackburn,  J.,  at  p.  160, 
and  in  this  country  the  judgment  has  no  present  value,  as  the  defendant 
company  have  no  property  here  available  for  execution.  With  regard 
to  the  claim  on  the  policv,  no  doubt  the  plaintiff  has  a  claim  which  he 
may  or  may  not  be  able  successfully  to  enforce  at  San  Francisco  ;  a 
claim,  however,  which  has  been  wholly  repudiated,  and  which  will  be 
strenuousl}'  resisted.  I  cannot  fix  an\'  pecuniary  value  on  this  claim, 
and  I  do  not  think  that  its  existence  ought  to  affect  the  amount  which 
\&  prima  facie  the  proper  amount  to  be  awarded  to  the  plaintiff  for  the 
loss  of  the  particular  contract  which  was  to  have  been  made  b}'  the 
alleged  principal.  I  therefore  give  judgment  for  the  plaintiff  with  costs 
for  £300  in  addition  to  the  money  paid  into  Court. 


524  LILLY,  WILSON    &   CO.   V.    SMALES,    EELES    &   CO.         [CHAP.  IIL 


LILLY,  WILSON    &    CO.  v.  SMALES,  EELES   &  CO. 
Queen's  Bench  Division.     1892. 

[[1892]  1  Q.  Z5.  456.] 

Case  tried  before  Denman,  J.  The  facts  and  arguments  are  suffi- 
ciently' stated  in  the  judgnaent. 

Barnes^  Q.  C,  and  W.  A.  3feek,  for  the  plaintiffs. 

Mobson^  Q.  C,  and   W.  H.  Clay,  for  the  defendants. 

Cur.  adv.  vult. 

Denman,  J.,  delivered  the  following  written  judgment.  The  plain- 
tiffs in  this  case  were  owners  of  the  ship  PockUngton  ;  the  defendants, 
brokers  and  shipping  agents.  On  April  28,  Mr.  F.  Eeles,  as  represent- 
ing the  defendants,  met  Mr.  F.  Cattle,  a  repi'esentative  of  the  firm  of 
Wood,  Cattle  &  Co.,  in  London,  who  acted  as  agents  of  the  plaintiffs, 
and  produced  a  list  of  requirements  of  ships  to  fulfil  several  different 
kinds  of  engagements.  Amongst  others  was  one  describing  the  freight 
offered  as  3s.  9f?.  There  was  a  conflict  of  evidence  as  to  what  took  place 
at  this  interview  ;  but  it  was  arranged  that  Wood,  Cattle  &  Co.  were 
to  have  two  hours  in  which  to  accept  or  reject  the  offer.  Before  the 
two  hours  expired  the  same  parties  met  again  ;  and  I  find  as  a  fact, 
though  Mr.  Cattle's  memor}'  was  a  blank  upon  the  point,  that  Mr.  F. 
Eeles  expressed  a  doubt  as  to  whether  there  had  not  been  a  mistake  as 
to  the  rate  of  freight  offered  b}'  his  principals  in  the  telegram  of  which 
the  list  produced  bj-  him  at  the  earlier  interview  was  a  translation.  In 
fact,  the  rate  3s.  9fZ.  was  mentioned  owing  to  a  blunder  of  the  tele- 
graphic officials  who  transmitted  the  message.  The  freight  actualh' 
offered  by  Reischer,  the  defendants'  principal,  was  3.s\  \\d.  The  mis- 
take arose  from  tlie  alteration  of  a  figure  "  4  "  into  a  figure  "  7  "  in  the 
cipher  number ;  the  figure  actuall}'  given  in  b3'  the  intending  charterer 
having  been  a  "  4,"  which  meant  3s.  4|-c?.,  and  not  a  "  7,"  which  meant 
3s.  9<:?.  The  defendants,  on  receiving  the  charter  signed  bj-  "  Wood  & 
Co.,  as  agents,"  returned  it  signed  "  by  telegraphic  authority  of  Sam 
Reischer,  Smales,  Eeles  «&  Co.,  as  agents."  It  was  contended  by  the 
plaintiffs  that  the  defendants  were  liable  in  the  action  as  having  war- 
ranted or  held  themselves  out  as  having  an  authorit}"  which  they  did 
not  possess.  The  defendants,  on  the  other  hand,  relied  upon  the  form 
in  which  the}'  had  signed  as  negativing  tlie  warranty  of  authorit}'  which 
would  have  been  implied  if  they  had  merely  signed  "  as  agents,"  and 
as  amounting  to  a  representation  that  the}'  took  no  such  risk  upon 
themselves,  but  merel}'  warranted  that  they  had  such  authority  as  a 
possibl}'  erroneous  telegram  might  confer. 

If  the  case  depended  merely  upon  the  construction  of  such  a  signa- 
ture as  a  matter  of  law,  much  is  to  be  said  on  both  sides.  On  the  one 
hand,  it  is  diflficult  to  understand  why  sucli  a  mode  of  signing  should  be 
used  if  it  left  the  agent  signing  under  precisely  the  same  liability  as  he 


SECT.  III.]  OWEN   V.   GOOCH.  525 

would  be  under  without  it.  On  the  other  hand,  there  is  force  in  the 
argument  used  by  Mr.  Barnes  for  the  plaintiffs,  that,  inasmuch  as  the 
shipowner  is  often  half  the  globe  away  when  charters  are  made,  there 
would  be  great  inconvenience  if  in  every  case  it  was  necessary  to  verify 
the  correctness  of  telegrams  before  a  firm  contract  could  be  relied  on. 
But  I  do  not  think  it  necessary  to  consider  all  the  arguments  which 
were  used  as  to  the  possible  meaning  of  the  words  here  adopted,  be- 
cause I  think  that  it  was  not  a  question  wholl}' of  legal  construction, 
but  that  the  words  adopted  were  words  the  true  meaning  of  which  was 
to  be  ascertained  by  the  evidence  of  persons  engaged  in  the  business  of 
commerce  of  this  nature  ;  and  if  1  am  right  in  this,  I  have  no  hesita- 
tion in  finding  that  the  defendants'  witnesses  established  that  this  form 
of  signing  is  well  understood  in  the  trade  as  meaning  to  negative  the 
implication  of  a  warranty  by  the  charterer's  agent,  at  all  events,  to  a 
greater  extent  than  warranting  that  he  has  had  a  telegram  which,  if 
correct,  authorizes  such  a  charter  as  that  which  he  is  signing. 

It  appeared  from  the  evidence  of  trustworthy  witnesses  for  the  de- 
fendants, that  whenever  charters  are  entered  into  by  brokers  in  accord- 
ance with  telegraphic  instructions,  it  is  usual  to  sign  in  this  form  with 
the  very  object  of  avoiding  the  implication  of  an  absolute  warranty.  I 
see  no  reason  to  doubt  that  this  was  the  real  object  of  the  defendants  in 
signing  as  the}'  did  ;  and,  this  being  my  opinion,  I  think  that  there  can 
be  no  ground  for  fixing  them  with  a  warrant}'  such  as  they  never  in- 
tended to  give,  and  which  would  be  wholly  inconsistent  with  the  general 
understanding  of  persons  engaged  in  the  business  in  which  the}'  were 
employed.     I  therefore  give  judgment  for  the  defendants  with  costs. 

Judgment  for  the  defendants} 


SECTION   III. 

Authorized  Contracts  for  a  disclosed  Principal.'^ 

OWEN    V.   GOOCH. 

Nisi  Prius.     1797. 

[2  Esp.  567.] 

Assumpsit  for  work  and  labor,  and  goods  sold  and  delivered,  with 
the  common  counts. 
Plea  of  71071  assumpsit. 
The  plaintiff  was  a  paper-hanger,   and  the  action  was  brought  to 

1  See  Walker  v.  Bank  of  State  of  New  York,  9  N.  Y.  582  (1854)  ;  Hall  v.  Lauder- 
dale, 46  N.  Y.  70  (1871 ) ;  Beattie  v.  Lord  Ebury,  L.  R.  7  Ch.  777,  800  (1872)  ;  Newman 
V.  Sylvester,  42  Ind.  106  (1873)  ;  Michael  v.  Jones,  84  Mo.  578  (1884).  —Ed. 

2  And  see  Chapter  IV. 


526  OWEN   V.    GOOCH.  [CHAP.  III. 

recover  a  sum  of  mone^'  for  work  done  for  the  defendant  in  the  course 
of  the  plaintiff's  business. 

He  proved  the  order  given  for  the  paper  by  the  defendant,  and  the 
work  done. 

The  defence  rehed  upon  was  that,  though  the  work  had  been  ordered 
by  the  defendant,  3-et  that  it  had  not  been  ordered  for  himself,  but  for 
a  person  of  the  name  of  Tippell,  and  had  been  done  at  Tippell's  house 
at  Walthamstow,  and  that  the  plaintiff  at  the  time  of  the  order  was 
informed  that  the  work  was  on  Tippell's  account. 

Defendant  having  given  notice  to  produce  the  plaintiffs  book,  on 
being  inspected,  the  entry  was  "  Mr.  Tippell  by  the  order  of  Gooch." 

The  plaintiff  contended  that  the  name  of  Tippell  being  prefixed  to 
the  order  was  by  no  means  a  proof  that  the  credit  was  given  to  him,  but 
was  merely  identifying  the  order  ;  that  Tippell  might  be  a  person  totall}- 
unknown  to  the  plaintiff,  but  to  whom  Gooch  the  defendant  was  cer- 
tainly known,  so  that  the  goods  must  be  deemed  to  be  ordered  on 
Gooch's  credit,  and  he  be  liable. 

For  the  defendant  it  was  insisted  that  Gooch  b}^  the  order  appeared 
to  be  only  the  agent,  and  the  goods  to  have  been  furnished  on  Tippell's 
account. 

Lord  Kenyon.  The  goods  are  ordered  b}'  Gooch,  but  at  the  time  it 
is  not  pretended  that  they  were  for  his  own  use  ;  they  were  ordered  for 
Tippell,  and  the  entry  is  made  in  his  name.  "We  must  keep  distinct  the 
cases  of  orders  given  by  the  parties  themselves,  and  by  others  as  their 
agents.  If  the  mere  act  of  oi'dering  goods  was  to  make  the  party  who 
ordered  them  liable,  no  man  could  give  an  order  for  a  friend  in  the 
country,  who  might  request  him  to  do  it,  without  risk  to  himself.  If  a 
party  orders  goods  from  a  tradesman,  though  in  fact  the}'  are  for  another, 
if  the  tradesman  was  not  informed  at  the  time  that  thej'  were  for  the  use 
of  another,  he  who  ordered  them  is  certainly  liable,  for  the  tradesman 
piust  be  presumed  to  have  looked  to  his  credit  onlj".  So  if  the}'  were 
ordered  for  another  person,  and  the  tradesman  refuses  to  deliver  to 
such  person's  credit,  but  to  his  credit  only  who  orders  them,  there  is 
then  no  pretext  for  charging  such  third  person  ;  or  if  goods  are  ordered 
to  be  delivered  on  account  of  another,  and  after  delivery  the  person  who 
gave  the  order  refuses  to  inform  the  tradesman  who  the  person  is, 
in  order  that  he  ma}-  sue  him,  under  such  circumstances  he  is  himself 
liable.  But  wherever  an  order  is  given  by  one  person  for  another,  and 
he  informs  the  tradesman  who  that  person  is  for  whose  use  the  goods 
are  ordered,  he  thereby  declares  himself  to  be  merely  an  agent,  and 
there  is  no  foundation  for  holding  him  to  be  liable. 

In  this  case  Owen,  tlie  plaintiff,  was  informed  of  all  the  circumstances, 
that  Gooch  was  giving  the  order  for  Tippell ;  the  goods  are  sent  to 
Tippell's  house,  and  the  entry  made  in  his  name.  I  think  there  is  no 
color  for  making  Gooch  the  debtor. 

The  plaintiff  was  nonsuited. 

ErsMne  and  Manley  for  the  plaintiff. 

Gibbs  and  Park  for  the  defendant. 


SECT,  III.]  PATERSON    V.    GANDASEQUI.  527 


PATERSON  AND  ANOTHER  V.  GANDASEQUI. 
King's  Bench.     1812. 

[15  East,  62.] 

This  was  an  action  for  goods  sold,  and  upon  the  common  money 
counts.  At  the  trial  before  Lord  Ellenbokougii,  C.  J.,  at  the  London 
sittings  after  last  Trinity  term,  the  following  facts  appeared :  The 
defendant  was  a  Spanish  merchant,  and  a  director  of  the  Philippine 
trading  company  at  Madrid,  with  which  he  was  engaged  in  adventures 
to  a  large  amount.  In  January,  1810,  being  then  in  London,  he 
employed  Messrs.  Larrazabal  &  Co.,  of  London,  merchants,  to  purchase 
for  him  various  assortments  of  goods  for  the  foreign  market,  for  which 
they  were  to  charge  a  commission  of  2  per  cent.  Larrazabal  and  Co. 
accordingly  applied  to  the  plaintiffs,  requesting  them  to  send  to  their 
counting-house  an  assortment  of  silk  hose,  with  their  terms  and  prices. 
Paterson,  Jr.,  waited  on  them  at  the  time  and  place  appointed,  with 
the  patterns,  terms,  and  prices,  at  which  time  the  defendant  was 
present  at  the  counting-house  ;  and  the  samples  were  handed  over  to 
him.  He  inspected  them,  and  selected  such  articles  as  he  required; 
and  the  terms  and  prices  were  also  shown  to  him  and  left  there.  On  the 
6th  of  January  the  plaintiffs  received  from  Larrazabal  and  Co.  an  order 
in  writing  for  574  dozen  of  silk  hose,  to  be  ready  in  town  on  or  before 
the  20th  of  February  next,  the  payment  as  agreed  upon.  (Signed) 
Larrazabal,  Menoyo,  and  Trotiaga  :  and  shortly  after  another  order 
for  150  dozen  more,  with  the  like  signature.  Both  these  orders  were 
given  by  Larrazabal  &,  Co.  for  the  use  of  and  in  execution  of  the  orders 
received  b}-  them  from  the  defendant.  The  goods  were  sold  bj'  the 
plaintiffs  on  the  credit  of  Larrazabal  &  Co.,  the  invoices  were  made  out 
in  their  names  and  sent  to  them,  and  Larrazabal  debited  the  defendant 
with  the  amount.  Soon  after,  and  before  the  credit  had  expired, 
Larrazabal  and  Co.  became  insolvent ;  and  thereupon  the  plaintiffs 
demanded  payment  of  the  defendant ;  which  being  refused,  the  present 
action  was  brought.  Lord  Ellenborough,  C.  J.,  being  of  opinion  upon 
these  facts  that  the  plaintiffs  had  dealt  w'ith  Larrazabal  &  Co.  upon  their 
sole  and  individual  credit,  knowing  that  the  purchases  they  made  were 
on  account  of  the  defendant,  directed  a  nonsuit.  In  the  following  term 
it  was  moved  to  set  aside  the  nonsuit,  on  the  ground  of  assimilating 
this  case  of  a  dormant  principal  to  that  of  a  dormant  partner,  where, 
though  the  party  furnishing  goods  to  the  ostensible  partners  intended 
at  the  time  to  give  credit  only  to  them,  yet  he  may  afterwards  pursue 
his  reraed}-  against  the  dormant  partner,  when  discovered.  A  rule  nisi 
having  been  granted, 

Sir  Y.  Gihbs,  A.  G.,  Marryat,  and  Littledalc^  now  showed  cause 
against  it. 

Garrow,  ParJc,  and  Michardson,  contra. 


528  PATERSON   V.    GANDASEQUI.  [CIIAP.  III. 

Lord  Ellenborough,  C.  J.  The  Court  have  not  the  least  doubt  that 
if  it  distinctly  appeared  that  the  defendant  was  the  person  for  whose  use 
and  on  whose  account  the  goods  were  bought,  and  that  the  plaintiffs 
knew  that  fact  at  the  time  of  the  sale,  there  would  not  be  the  least 
pretence  for  charging  the  defendant  in  this  action.  But  the  doubt 
is  whether  that  does  sufficiently  appear  by  the  evidence.  It  appears 
that  the  defendant  was  present  at  the  counting-house  of  Larrazabal, 
where  one  of  the  plaintiffs  had  come  b}-  appointment,  and  in  his  presence 
inspected  and  selected  such  of  the  articles  as  he  required  ;  that  the 
goods  were  afterwaxxls  ordered  by  Larrazabal  &  Co.,  credit  given  to 
them,  and  the  invoices  made  out  in  their  name,  and  sent  to  them.  The 
question  is  whether  all  this  was  done  with  a  knowledge  of  the  defendant 
being  the  principal?  The  law  has  been  settled  by  a  variety  of  cases, 
that  an  unknown  principal,  when  discovered,  is  lial^le  on  the  contracts 
which  his  agent  makes  for  him  ;  but  that  must  be  taken  with  some 
qualification,  and  a  party  may  preclude  himself  from  recovering  over 
against  the  principal,  by  knowingly  making  the  agent  his  debtor.  It 
certainly  appeared  to  me  at  the  trial  that  the  plaintiffs  knew  of  the 
defendant  being  the  principal,  and  had  elected  to  take  Larrazabal  &  Co. 
as  their  debtors,  or  I  should  not  have  nonsuited  the  plaintiffs  ;  but  as 
there  may  perhaps  be  a  doubt  upon  the  evidence,  whether  the  plaintiffs 
had  a  perfect  knowledge  of  that  fact,  it  may  be  as  well  to  have  it  recon- 
sidered. 

Grose,  J.  I  think  that  the  plaintiffs  in  this  case  might  have  elected 
whom  they  would  have  for  their  debtor ;  and  here  they  seem  to  have 
made  their  election.  That,  however,  is  the  only  doubt  which  is  fit 
to  be  considered. 

Le  Blanc,  J.  It  will  be  material  to  have  the  facts  inquired  into 
more  fully,  in  order  to  ascertain  whether  the  tradesmen  sold  to  the 
agents  with  a  knowledge  of  the  part}'  for  whom  they  were  buying ;  or 
whether,  without  such  knowledge,  the}*  chose  to  give  credit  to  the 
agents,  whether  buA'ing  for  another  or  for  themselves.  Many  of  the 
cases  may  perhaps  be  found  distinguishable  from  this  by  their  not  fall- 
ing precisely  within  the  doctrine  applicable  to  principal  and  broker ; 
and  it  may  be  necessar}'  to  consider  in  the  present  case,  whether  any 
distinction  can  be  made  between  a  home  and  a  foreign  principal, 

Bayley,  J.  There  may  be  a  particular  course  of  dealing  with  respect 
to  trade  in  favor  of  a  foreign  principal,  that  he  shall  not  be  liable  in  cases 
where  a  home  principal  would  be  liable  ;  that  would  be  a  question  for 
the  jury.  I  have  generally  understood  that  the  seller  may  look  to  the 
principal  when  he  discovers  him,  unless  he  has  abandoned  his  right  to 
resort  to  him.  I  agree  that  where  the  seller  knows  the  principal  at  the 
time,  and  yet  elects  to  give  credit  to  the  agent,  he  must  be  taken  to 
have  abandoned  such  right,  and  cannot  therefore  afterwards  charge  the 
principal.  I  think  it  should  be  reconsidered  in  this  case  whether  the 
plaintiffs  did  so,  Hule  absolute. 


SECT.  III.J  ADDISON   V.   GANDASEQUI.  529 


ADDISON   V.   GANDASEQUI. 
Common  Pleas.     1812. 

[4  Taunt.  574.] 

This  was  an  action  for  goods  sold  and  delivered,  and  was  tried 
before  Mansfield,  C.  J.,  and  a  special  jury,  at  the  sittings  at  Guild- 
hall, after  Michaelmas  Term,  1811,  when  it  ai)peared  that  the  defendant 
was  a  member  of  a  Spanish  trading  corporation,  called  the  Philippine 
Corapan}-,  and  was  a  director  of  that  compan}',  and  had  come  over  to 
England  to  select  a  large  assortment  of  goods  destined  for  Lima. 
Larrazabal,  Menojo,  and  Trotiaga,  a  house  established  in  London, 
assisted  him  in  providing  the  goods,  and  ihey  having  applied  to  the 
plaintiff,  with  whom  they  had  previous  dealings  for  twenty  years,  the 
plaintiff  went  by  appointment  to  the  house  of  Larrazabal  &  Co.  in 
the  city,  with  patterns  of  goods  ;  he  found  the  defendant  there,  who 
examined  various  patterns,  cheapened  the  prices,  mentioned  the  market 
for  which  they  were  intended,  told  the  plaintiff  he  should  charge  the 
long  price,  and  he,  the  defendant,  would  himself  receive  the  bounty  on 
exportation,  and  stipulated  for  fifteen  months'  credit;  he  took  goods 
home  to  his  house  in  Clarges  Street,  and  kept  them  a  week  to  examine, 
and  a  clerk  from  the  plaintiff's  house  frequenth'  attended  on  him  there 
to  show  and  explain  the  patterns.  The  plaintiff  received  a  written 
order  from  Larrazabal  &  Co.  for  a  quantity'  of  these  goods ;  after 
which  the  defendant  required  of  the  plaintiff  an  abatement  of  £6  per 
cent  on  the  prices  of  them,  which  the  plaintiff  refused  to  make,  and 
the  parties  were  about  to  terminate  the  treaty :  but  at  length  the 
defendant  agreed  to  give  the  whole  price  required,  and  told  the  plain- 
tiff he  might  proceed  to  execute  the  order.  The  plaintiff  and  his 
clerks  repeatedly  had  other  meetings  with  the  defendant,  and  several 
other  parcels  of  goods  were  ordered  by  Larrazabal  &  Co.  which  had 
been  selected  by  the  defendant  at  those  meetings.  Larrazabal  &  Co. 
referred  the  plaintiff  to  the  defendant  for  instructions  as  to  the  mode 
in  which  the  goods  were  to  be  packed  for  exportation,  and  the  defend- 
ant gave  those  instructions.  The  invoices  were  all  made  out  b}'  the 
plaintiff  to  Larrazabal  &  Co.,  and  they  were  debited  in  the  plaintiff's 
books  for  the  amount  of  the  long  price.  Larrazabal  &  Co.  in  their 
books  debited  the  defendant  with  the  amount  of  the  invoices,  and  also 
with  a  commission  for  purchasing  them,  of  £2  per  cent  on  the  amount, 
which  was  their  ordinary  mode  of  dealing  with  the  defendant,  and  they 
credited  the  plaintiff  with  the  amount  of  the  invoices.  Upon  an 
occasion  subsequent  to  these  sales,  Larrazabal  &  Co.  having  applied  to 
purchase  some  goods  of  the  plaintiff,  the  plaintiff  said  he  thought  he 
had  for  that  time  extended  his  credit  far  enough  to  Larrazabal  &  Co., 
and  declined  furnishing  the  goods.     Larrazabal  &  Co.  gave  the  orders 

34 


530  ADDISON    V.    GANDASEQUI.  [CHAP.  HL 

for  packing  and  shipping  the  goods,  and  in  tlieir  own  names,  but  in 
pursuance  of  instrurtions  given  b}-  the  defendant,  chartered  a  vessel  to 
Lima,  in  which  these  goods  were  conveyed,  and  instructed  the  master 
not  to  part  with  the  return  cargo  until  payment  of  the  freight  and 
amount  of  Larrazabal's  demand  on  the  defendant.  The  master  did  not 
deliver  the  return  cargo  but  in  consequence  of  instructions  from  Lana- 
zabal  &  Co.,  after  a  sum  of  £72,000  had  been  deposited  by  the  defend- 
ant for  their  security.  One  of  the  partners  in  their  house,  which  had 
become  bankrupt,  being  examined,  stated,  that  the  house  purchased 
these  goods  of  the  plaintiff  on  their  own  credit  and  account,  as  thej' 
would  any  other  goods  for  which  the}'  had  occasion  in  their  trade,  and 
Larrazabal  &  Co.  had  insured  the  goods  in  their  own  names,  for  which 
the\'  had  a  further  commission  of  a  half  per  cent.  The  plaintiff  con- 
tended that  though  the  credit  was  given  to  Larrazabal  &  Co.,  yet  that 
as  the  defendant  had  the  goods,  he  was  liable  to  pay  for  them  ;  and  that 
this  was  onl}-  the  common  case  of  a  broker  buying  for  his  principal : 
the  principal  when  disclosed  is  liable.  Mansfield,  C.  J.,  left  it  to  the 
jury  whether  Larrazabal  did  act  as  broker  or  not,  and  observed  that 
as  the  defendant  saw  and  handled  the  patterns,  and  was  seen  in  the 
business,  if  he  had  been  the  purchaser,  most  probably  the  credit  would 
have  been  immediateh"  given  to  him,  the  jury  under  these  circumstances, 
being  of  opinion  that  the  goods  were  sold  to  Larrazabal  as  principal, 
found  a  verdict  for  the  defendant. 

Best.,  Serjt.,  for  the  plaintiff,  in  pursuance  of  liberty  reserved  at  the 
trial,  obtained,  in  last  Hilar}'  term,  a  rule  nisi  to  enter  a  verdict  for  the 
plaintiff. 

Shepherd,  Serjt.,  showed  cause. 

JBest  and  Yaughan,  Serjts.,  in  support  of  the  rule. 

Shepherd,  in  reply. 

Mansfield,  C.  J.,  now  gave  the  judgment  of  the  Court.  This  is  ft 
motion  made  for  a  new  trial,  the  verdict  having  been  given  for  the  de- 
fendant. The  circumstances  of  the  case  .are  very  singular.  The  motion 
is  made  on  the  ground  that  though  the  actual  vendees  of  the  goods  were 
Larrazabal  &  Co.,  yet  that  the  verdict  ought  to  have  gone  against  the 
defendant,  as  the  person  for  whom  the  goods  were  bought  by  Larrazabal 
&  Co.  I  left  it  to  the  jury  to  consider  whether  Larrazabal  &  Co.  were 
acting  as  factors  for  the  defendant,  or  whether  the  goods  were  bought 
b}'  the  defendant  himself,  who  was  acting  for  the  Philippine  Company. 
In  certain  cases  it  would  undoubtedly  be  a  monstrous  thing  to  charge  the 
defendant,  but  in  this  case  there  would  be  no  such  hardship,  because 
the  defendant  had  received  the  money  of  the  Philippine  Companj'.^  .  .  . 

I  left  it  to  the  jurj'  to  sa}'  whether  this  were  the  common  case  of  a 
merchant  here  buying  for  his  correspondent  abroad,  on  which  he 
charged  a  commission,  or  whether  it  was  a  case  of  a  factor  buying 
goods  for  his  principal ;  and  they  found  for  the  defendant.     None  of 

^  Here  the  facts  were  recapitulated.  —  Ed. 


SECT.  III.]  KIRKPATRICK   V.    STAINEK.  531 

the  cases  that  have  been  cited  at  all  resemble  this  case ;  for  although  it 
was  not  said  expressly  that  the  plaintiff  did  not  look  to  the  defendant, 
yet,  upon  all  the  circumstances  of  the  transaction,  it  evidently  appears 
that  he  did  not.  And  if  a  man  selling  to  another  for  the  use  of  a  third, 
who  stands  b}'  and  is  known,  may  make  the  contract  with  the  buyer, 
without  making  the  third  person  responsible,  certainly  this  is  that 
case.  .  .  .  Now  in  this  case  if  it  had  been  intended  that  the  sale  should 
be  to  the  defendant,  and  that  Larrazabal  &  Co.  were  to  be  only  sure- 
ties, the  plaintiff  would  certainly  have  debited  the  defendant,  and  taken 
a  guarantee  from  Larrazabal  &,  Co.  And  only  see  what  a  state  the  de- 
fendant would  be  in,  buying,  as  he  does,  such  an  immense  amount  of 
goods  of  the  plaintiff,  and  other  persons.  And  although  it  has  been 
objected  b}'  the  counsel  that  it  is  a  hard  case,  that  this  money  getting 
into  the  hands  of  Larrazabal  &,  Co.  should  not  find  its  wa\-  wholly  to 
the  plainlitf,  of  whom  the  goods  were  purchased,  yet  we  cannot  alter 
the  law  of  the  case,  or  the  nature  of  the  contract,  on  account  of  any 
subsequent  events.  The  insolvency  of  Larrazabal  &  Co.  ma^'  make  an 
unfortunate  difference  in  the  case  as  to  the  consequences,  but  it  will 
not  alter  their  liability.  We,  who  are  called  on  to  set  aside  this  verdict, 
must,  in  order  thereto,  sa\'  on  this  evidence,  that  Larrazabal  only  was 
not  to  be  the  debtor,  but  that  the  defendant  also,  who  was  to  buy  these 
goods  for  the  Philippine  Company,  was  to  be  liable  :  but  we  can  find  no 
evidence  to  warrant  us  in  that  conclusion :  the  rule  therefore  must  be 

Discharged. 


KIRKPATRICK  v.  STAINER. 

Court  of  Errors  of  New  York.     1839. 

[22  Wend.  244.] 

Error  from  the  Supreme  Court.  This  was  an  action  of  assumpsit, 
brought  b}'  Kirkpatrick  against  Stainer,  for  the  breach  of  a  contract 
alleged  to  have  been  made  by  the  defendant,  to  cause  insurance  to  be 
effected  upon  a  quantit3'  of  coffee  shipped  b}'  the  plaintiff  at  New  York 
for  the  port  of  Trieste.  The  vessel  in  which  the  coffee  was  shipped 
was  lost  at  sea.  The  plaintiff  alleged  that  no  insurance  had  been 
effected,  and  claimed  the  value  of  the  coffee,  with  anticipated  profits. 
The  cause  was  heard  bj'  referees,  who  made  a  special  report,  setting 
forth  the  evidence  adduced  before  them.  The  principal  evidence  of 
the  agreement  rested  in  two  letters  :  one  written  by  the  plaintiff  to  the 
defendant  on  the  27th  August,  1830,  and  the  answer  thereto  under  date 
of  the  30th  August.  The  plaintiff's  letter  commences  thus  :  "Sir:  The 
object  of  the  present  is  to  confirm  the  verbal  agreement  made  between 
ourselves  respecting  1499  bags  of  coffee  now  discharging,  of  which  I 


532  KIRKPATRICK   V.    STAINER.  [CHAP.  III. 

showed  you  invoices  and  bills  of  lading,  Tlie  wliole  quantity'  is  to  be 
shipped  on  joint  account.  For  the  one  half  which  you  take  on  your 
account,  you  are  to  pay  in  cash,  — are  to  advance  me  five-sixths  of  the 
value  at  the  price  of  5^100  per  pound;  on  this  advance  you  are  to 
charge  me  interest,"  etc.  (specifying  the  terms  of  the  advance).  The 
plaintiff  then  proceeds:  "The  coffee  must  be  shipped  as  soon  as  pos- 
sible for  Trieste,  to  the  care  of  your  friends,  Messrs.  Dutilh,  Tick}-,  Sr. 
Co.,  with  orders  for  immediate  sales  and  prompt  remittances"  (direct- 
ing  tlie  mode  of  remittance).  He  then  adds  :  ''  You  will  also  take  care 
that  insurance  be  effected,  either  here  or  in  Europe,  on  the  invoice 
amount,  with  ten  per  cent  additional,  for  probable  gains."  The  de- 
fendant, in  his  answer  of  the  30th  August,  says:  "I  consent  to  the 
different  points  respecting  the  projected  shipment  to  my  friends,  Messrs. 
Dutilh,  Ticky,  &  Co.  in  Trieste,  of  your  1499  bags  of  coffee.  It  is 
understood  that  the  above  parcel  will  be  shipped  on  joint  account 
between  you  and  Messrs.  Dutilh,  Tick}-,  &  Co.  For  their  half  share,  I 
shall  pay  cash  hei'e,  at  the  price  of  5|100  short  price  per  pound  net; 
and  on  ^'our  half,  which  you  consign  for  your  account  to  my  above 
Trieste  friends,  I  have  no  objection  to  advance  five-sixths  of  the  above 
price,  cash,  charging  the  usual  interest  of  six  per  cent  per  annum, 
from  the  time  my  above  Trieste  friends  will  remit  the  funds  to  cover 
my  drafts  on  London."  Then  after  adverting  to  the  mode  of  remit- 
tance, he  adds  :  "  The  insurance  will  be  covered  after  your  desire,  with 
ten  per  cent  imaginarj'  gain  on  the  invoice  cost,  either  here  or  in 
Europe,  as  I  '11  judge  more  convenient."  This  letter  from  the  defend- 
ant is  signed,  "Ed.  Stainer."  Sundry  letters  from  Messrs.  Dutilh, 
Ticky,  &  Co.  to  the  plaintiff",  relative  to  the  non-arrival  of  the  vessel, 
the  insurance  of  the  coffee  at  Trieste,  and  negotiations  with  the  under- 
writers there  in  respect  to  the  payment  of  the  loss ;  and  also  several 
letters  which  passed  between  the  plaintiff  and  the  defendant  on  the 
same  subject  were  read  in  evidence.  The  defendant  also  called  a  wit- 
ness, who  stated  that  he  knew  the  mercantile  house  of  Dutilh,  Ticky,  & 
Co.  of  Trieste,  and  also  knew  the  defendant,  who,  in  August,  1830, 
was  residing  in  the  city  of  New  York  as  the  agent  of  that  house,  and 
that  it  was  understood  by  the  house,  of  which  the  witness  was  a  mem- 
ber, and  he  believed  by  merchants  generally-,  that  the  defendant  was  in 
business  only  as  agent  of  the  Trieste  house. 

The  counsel  for  the  defendant  insisted  before  the  referees,  that  the 
defendant  was  not  personally  liable  to  the  plaintiff  in  this  cause,  inas- 
much as  in  the  transaction  in  question,  he  acted  only  as  the  agent  of 
Messrs.  Dutilh,  Ticky,  &  Co.,  and  that,  with  the  knowledge  of  the 
plaintiff.  The  referees  made  a  report,  setting  forth  the  testimony 
in  the  cause,  and  that  the  above  objection  was  raised  to  a  recovery  ; 
they  then  state  that  the}'  find  that  no  insurance  was  effected  by  the 
house  of  Dutilh,  Tick}-,  &  Co.,  but  whether  or  not  the  defendant  is 
personally  liable  to  the  plaintiff"  for  the  breach  of  the  agreement  to 
effect  such  insurance,  they  say  they  are  altogether  ignorant,  and  pray 


SECT.  III.]  KIRKPATRICK    V.    STAINER.  533 

the  advice  of  the  court ;  and  if  it  shall  seem  to  the  court  that  the  de- 
fendant is  personally  liable,  then  the}'  find  that  there  is  due  to  the 
plaintiff  $832.50  ;  but  if,  &c.,  then  that  there  is  nothing  due  to  the 
plaintiff.  The  Supreme  Court  rendered  judgment  in  favor  of  the  de- 
fendant.    The  following  opinion  was  delivered  by  the  Chief  Justice :  — 

"  Hi/  the  Court.,  Nelson,  C.  J.  Taking  the  two  letters  of  the  27th 
and  30th  August,  1830,  as  the  evidence  of  the  contract  respecting  the 
shipping  of  the  coffee  to  Trieste,  and  it  appears  to  me  there  cannot  be 
a  doubt  that  the  defendant  contracted  merelj-  as  agent  for  the  house  of 
Dulilh,  Tick}',  &  Co.,  and  that  it  must  have  been  so  intended  and 
understood  by  the  plaintiff.  The  defendant  had  no  interest  in  the 
adventure,  and  expressly  says  to  the  plaintiff,  in  his  letter  recognizing 
and  ratifying  the  agreement,  '  It  is  understood  that  the  above  parcel 
[alluding  to  the  1499  bags  of  coffee]  will  be  shipped  on  joint  account 
between  you  and  Messrs.  Dutilh,  Ticky,  &  Co.'  '  For  their  half  share 
I  shall  pay  cash  here,'  &c.  There  is  no  dispute  but  that  defendant 
was  the  agent  of  the  above  house  in  the  cit}'  of  New  York,  and  duly 
authorized  to  make  for  them  the  agreement  in  question.  They  recog- 
nized its  validity,  and  opened  immediatelv  a  correspondence  directly 
with  the  plaintiff,  which  began  January,  1831,  and  continued  till  Octo- 
ber. 1831. 

"  Neither  is  there  anything  in  the  correspondence  of  the  plaintiff  with 
the  defendant  in  the  business,  from  which  to  infer  he  considered  him 
personally  holden  ;  but  the  contrary.  The  case  presented  is  the  ordi- 
nary one  of  a  private  agent  clothed  with  full  authorit}',  acting  in  behalf 
of  his  principal ;  not  only  disclosing  it,  but  actually  contracting  in  his 
name  ;  for  such  is  the  form  of  the  contract  to  be  extracted  from  the 
letters  of  the  27th  and  30th  August,  1830.  There  can  be  no  doubt,  a 
person  acting  as  agent  of  a  foreign  house,  is  not  responsible,  individu- 
alh',  if  he  discloses  his  principal,  and  acts  only  in  his  behalf,  an}'  more 
than  an  agent  of  a  house  in  this  country.  There  is  no  such  distinction 
to  be  found  of  any  authority  in  the  books,  nor  is  there  any  reason  to 
support  it.  If  an  individual  desire  the  personal  credit  and  liability  of 
the  agent,  he  should  make  known  the  fact,  and  all  parties  will  then 
understand  it ;  if  the  agent  declines,  the  vendor  can  refuse  to  deal  with 
him."     The  plaintiff  sued  out  a  writ  of  error. 

The  cause  was  urged  in  this  court  by 

G.  Wood,  for  the  plaintiff. 

J.  Prescott  Hall,  for  the  defendant. 

By  the  Chancellor.  There  is  no  question  as  to  the  general  rule  of 
law,  where  an  agent  or  factor,  who  is  duly  authorized  to  contract  for 
his  principal  discloses  the  fact  of  his  agency,  and  the  name  of  the  per- 
Bon  for  whom  he  is  acting,  that  he  is  not  personally  liable  if  he  makes 
the  contract  in  such  form  as  to  be  binding  upon  his  principal,  unless  it 
satisfactorily  appear  that  he  also  intended  to  bind  himself  personally. 
The  general  rule  on  this  subject  is  not  questioned  by  the  counsel  for 
the  plaintiff  in  error;  but  he  insists,  in  the ^rs#  place,  that  the  fact 


534  KIRKPATKICK  V.   STAINER.  [CHAP.  III. 

that  Diitilh,  Ticky,  &  Co.  were  foreigners,  residing  at  Trieste,  in  the 
Austria-German  territories,  takes  the  case  out  of  the  general  rule,  and 
renders  the  agent  personally  liable  ;  and  second!)/,  that  the  form  of  the 
contract  was  not  such  as  to  make  it  binding  upon  the  defendant's 
foreign  correspondents,  —  or,  at  least,  that  it  appears  from  the  contract 
itself,  that  it  was  the  understanding  of  the  parties  that  the  defendant 
was  to  be  personall}'  liable  for  the  performance  thereof.^  .  .  . 

By  Senator  Verplanck.  I  concur  with  the  Supreme  Court  in  their 
understanding  of  this  negotiation.  Taking  together  the  two  letters  of 
the  parties  on  which  the  bargain  was  concluded,  the  defendant  appears 
to  have  acted  merel}-  as  the  known  agent  of  the  house  at  Trieste,  for 
and  on  account  of  whom  he  made  the  advances,  and  to  whom  the  goods 
were  consigned.  He  contracted  for  the  foreign  house  and  in  their 
name,  but  made  no  undertaking  for  himself.  This  evidence  of  the 
correspondence  is  supported  and  confirmed  bj-  collateral  proof  of  the 
general  belief  and  understanding  among  New  York  merchants,  that 
the  defendant  was  in  business  only  as  the  agent  of  the  foreign  house. 
In  such  dealings  it  is  settled  that  the  principals  are  alone  responsible, 
unless  there  be  some  special  circumstance  to  fix  the  responsibihty  upon 
the  agent  personally.  I  do  not  think  that  there  is  an}'  such  circum- 
stance in  this  case  ;  although  the  fact  of  the  defendant  being  an  agent 
of  a  house  abroad,  added  to  the  authorit}'  of  Judge  Stor^-,  the  reasons 
he  assigns,  and  the  unqualified  language  he  uses  as  to  the  liabilities  of 
factors  purchasing  for  foreign  merchants,  occasioned  at  first  some 
doubt  in  m}'  mind.  In  his  late  valuable  work  on  agency,  Judge  Story 
saj's :  "  On  the  ground  of  general  convenience  and  the  usage  of  trade, 
the  general  rule  obtains  that  agents  or  factors,  acting  for  merchants 
resident  in  foreign  countries,  are  held  personally  liable  upon  all  con- 
tracts made  by  them  for  their  emplo3ers  ;  and  this,  without  any  dis- 
tinction whether  the}'  describe  themselves  in  the  contract  as  agents  or 
not.  In  such  cases,  it  is  presumed  not  only  that  credit  is  given  to  such 
agents,  but  that  it  is  exclusively  given  to  them  to  the  exoneration  of 
their  employers.  Still  the  presumption  is  liable  to  be  rebutted  by  proof 
tliat  the  credit  was  given  to  both  principal  and  agent  or  to  the  principal 
alone."  Story  on  Agency,  §  268.  See  also  the  reasons  assigned  in 
the  preceding  section  and  in  §  290.  To  the  same  effect  a  respectable 
recent  English  elementary  writer  speaks  thus :  "  It  seems  that  when  a 
British  agent  contracts  for  a  foreign  principal,  the  agent  is  liable." 
Smith  on  Mercantile  Law,  p.  78.  Now,  if  this  be  also  the  doctrine  of 
our  own  commercial  law,  it  may  well  be  doubted  whether  the  language 
of  the  correspondence,  though  showing  Stainer  "  to  describe  himself  in 

1  The  remainiler  of  Chancellor  Walworth's  opinion  gave  reasons  for  agreeing 
with  the  plaintiff  in  error  as  to  both  points  ;  and,  as  to  the  first  point,  cited  Gonzales 
V.  Sladen,  Bnll.  N.  P.  130;  De  Gaillon  v.  L'Aigle,  1  B.  &  P.  368  ;  Thomson  v.  Daven- 
port, 9  B.  &  C.  87  ;  Burgen  v.  Buck,  7  Shaw  &  Dunl.  Sess.  Gas.  824;  1  Bell's  Illust. 
153;  Smith's  Merc.  Law,  2d  ed.,  104,  120;  Paley  Ag.  294;  2  Livermore's  Ag.  249; 
Story  Ag.  §  268.  — Ed. 


SECT.  III.]  WILLIAMSON   V.   BAKTON.  535 

the  contract  as  an  agent,"  is  yet  sufficient,  even  with  the  collateral  evi- 
dence (conclusive  as  the  whole  would  be  in  the  case  of  an  agent  for  a 
domestic  principal),  to  rebut  such  a  positive  legal  presumption,  and  to 
prove  that  credit  was  given  only  to  the  Trieste  house,  so  as  to  authorize 
the  court  to  pronounce,  on  the  facts  submitted  to  them  by  the  referees, 
"•  that  the  defendant  was  not  personally  liable  upon  the  agreement." 
But  upon  examining  the  several  cases  cited  in  support  of  this  rule,  I 
am  satisfied  that  Judge  Story  has  stated  the  doctrine  in  too  strong  and 
unqualified  terms,  as  if  this  presuniption  were  a  universal  inference  of 
law,  applicable  everywhere.  I  think,  on  the  contrary-,  that  this  is  a 
presumption  founded  altogether  upon  usage  and  the  particular  course 
of  trade,  and  arises  only  when  and  where  that  usage  is  known  or  proved 
to  exist ;  of  course,  then,  that  it  is  not  au  unvarying  legal  presump- 
tion, to  be  applied  to  an}-  contract,  made  anywhere,  by  a  factor  or 
agent  representing  a  person  or  commercial  house  in  some  foreign 
country.  .   .   . 

On  the  question  being  put.  Shall  this  judgment  be  reversed?  the 
members  of  the  court  divided  as  follows : 

In  the  affirmative :  The  Chancellor,  and  Senators  Hull,  H.  A. 
Livingston,  Paige,  Spraker,  Van  Dyck  —  6. 

In  the  negative  :  The  President  of  the  Senate,  and  Senators  Beards- 
let,  Fox,  Furman,  Hawkins,  Hunt,  Huntington,  Jones,  Maynard, 
Moseley,  Nicholas,  Peck,  Powers,  Skinner,  Sterling,  Yerplanck, 
Wager,  Works  — 18. 

Whereupon  the  judgment  of  the  Supreme  Court  was 

Affirmed.^ 


WILLIAMSON   V.   BARTON. 

Exchequer.     1862. 

[7  H.  .j-  N.  899.] 

Declaration  for  goods  sold  and  delivered.     Plea :  never  indebted. 

At  the  trial  before  Bramavell,  B.,  at  the  London  Sittings,  after 
Trinity  Term,  1861,  it  appeared  that  the  plaintiff,  who  was  a  farmer 
in  Pembrokeshire,  being  about  to  quit  his  farm,  put  up  his  farm  pro- 
duce for  sale  by  auction.  The  auction  took  place  on  the  25th  of  Sep- 
tember, 1857,  when  the  defendant  attended  and  bid  for  several  lots  of 
hay  and  corn,  which  were  knocked  down  to  him,  as  the  highest  bidder, 
for  £150.  Thereupon,  the  auctioneer  asked  him  his  name  in  the  usual 
wa}",  and  he  replied,  "  Barton,"  without  saying  whether  he  was  pur- 
chasing for  himself  or  any  other  person,  and  the  auctioneer's  clerk 
wrote  it  down  as  the  name  of  the  purchaser.     The  defendant  had  been. 

1  Ace:  Kaulback  i-.  Churchill.  59  N.  H.  296  (1879).  —Ed. 


536  WILLIAMSON   V.    BAKTON.  [CHAP.  III. 

for  some  time  previous  to,  and  was  at  tlie  time  of  the  sale,  foreman  to 
one  Smith,  a  government  contractor,  who  was  then  executing  certain 
works  in  Pembrolve  Dockyard  ;  and  the  defence  to  the  present  action 
was,  that  the  defendant  bought  the  ha^-  and  corn,  not  for  himself,  but 
for  Smith.  The  plaintiff  was  present  at  the  sale,  but  took  no  part 
whatever.  He  knew  tliat  the  defendant  was  Smith's  foreman,  but  he 
knew  nothing  as  to  whether  he  was,  on  this  occasion,  purchasing  for 
himself  or  Smith.  The  defendant  had,  however,  on  previous  occasions, 
purchased  stone  of  the  plaintiff  for  Smith.  The  auctioneer  knew  nothing 
either  of  Smith  or  the  defendant,  or  of  their  relation  to  each  other,  and 
a  few  days  after  the  sale  sent  in  the  account  to  the  defendant.  The 
ha}'  and  corn  were,  without  any  direction  or  interference  of  the  defend- 
ant, fetched  away  in  carts  belonging  to  Smith,  and  were  consumed  by 
Smith's  horses  before  his  death,  which  occurred  about  ten  days  after  the 
sale.     The  conditions  of  sale  (so  far  as  material)  were  as  follows  :  — 

1.  That  the  highest  of  two  or  more  bidders  shall  be  the  purchaser, 
and  in  case  of  a  dispute  between  the  bidders,  the  lot  shall  be  put  up 
again  for  sale  if  the  auctioneer  shall  think  proper  so  to  do ;  otherwise 
he  is  to  determine  which  of  the  parties  is  to  be  the  purchaser. 

2.  That  each  lot  shall  be  considered  as  delivered  on  being  knocked 
down,  and  on  the  highest  bidder  complying  with  the  conditions  next 
hereafter  mentioned. 

3.  That  the  highest  bidder  shall,  on  being  declared  such,  name  a 
person  present,  to  be  approved  of  b}'  the  auctioneer,  or  his  clerk,  to 
join  him  or  her  as  a  partner  for  the  lots  sold,  and  that  such  person, 
on  his  or  her  consenting  to  become  such  partner,  shall  be  considered 
jointl}'  and  severalh*  answerable  for  the  payment  of  the  purchase- 
money  with  such  highest  bidder.  And  in  case  an}-  such  highest  bidder 
shall  neglect  or  refuse  to  procure  the  consent  of  an}'  person  or  persons, 
to  be  approved  of  as  aforesaid,  the  lot  may  be  resold,  and  the  first 
purchaser  charged  with  an}'  expenses  and  loss  of  such  resale  (if  any) 
or  he  or  she  may  be  treated  as  a  ready-money  purchaser,  and  liable  to 
be  proceeded  against  for  the  recovery  of  the  same,  or  the  sale  may  be 
declared  void,  at  the  option  of  the  auctioneer ;  but  in  case  any  such 
highest  bidder  shall  procure  the  consent  of  any  person,  or  persons,  to 
be  approved  of  as  aforesaid,  the  same  shall  be  considered  under  the 
conditions  equivalent  to  having  signed  the  sale  book. 

4.  (By  this  condition  the  money  for  purchases  at  the  sale  was  pay- 
able on  the  25th  January,  1858.) 

The  learned  judge  left  it  to  the  jury  to  say  whether  the  defendant 
authorized  the  auctioneer  to  sign  his  name  as  the  purchaser  of  the 
goods,  telling  them  that,  if  they  were  of  that  opinion,  the  defendant 
was  liable  for  the  price.  If,  however,  they  should  think  that,  although 
the  defendant  entered  into  a  binding  contract,  the  evidence  showed 
that  the  goods  were  delivered,  not  to  the  defendant,  but  to  some  one 
else,  he  was  not  liable.  The  jury  having  found  a  verdict  for  the 
defendant, 


SECT.  III.]  WILLIAMSON   V.    BARTON.  537 

ITnowles,  in  last  Michaelmas  Term,  obtained  a  rule  nisi  for  a  new 
trial  on  the  ground  of  misdirection,  in  leaving  to  the  jury  the  question 
whether  the  defendant  had  entered  into  the  contract,  the  evidence 
showing  that  he  had  ;  also  on  the  ground  that  it  was  immaterial 
whether  the  defendant  intended  to  act  as  agent  or  principal ;  also  on 
the  ground  that  it  was  immaterial  whether  the  plaintiff  knew  that  the 
defendant  was  bidding  as  agent  or  not ;  also  on  the  ground  that  there 
was  no  evidence  to  support  the  learned  judge's  charge  touching  the 
delivery,  as  there  was  no  evidence  of  any  contract  other  than  that  with 
Barton  ;  also  on  the  ground  that  the  verdict  was  against  evidence. 

Huddlest07i  and  Garth  showed  cause.  ^ 

Knowles  and  Milucard^  in  support  of  the  rule.^ 

Wilde,  B.^  On  these  facts,  I  am  of  opinion  the  defendant  made 
himself  liable.  It  it  well  settled  that  an  agent  is  responsible,  though 
known  by  the  other  party  to  be  an  agent,  if  bj-  the  terms  of  the  con- 
tract, he  makes  himself  the  contracting  party:  see  Higgins  v.  Senior, 
8  M.  &  W.  834.  And  the  late  cases  arising  on  charter-parties  have 
illustrated  this  principle  forcibly.  Lennard  v.  Robinson,  5  E.  &  B.  125. 
Parker  v.  Winlow,  7  E.  &  B.  942. 

Supposing,  then,  it  was  competent  to  the  jury,  on  the  above  evidence, 
to  find  that  the  plaintiff  actually  knew  that  the  defendant  was  buying 
for  Smith,  the  question  would  still  remain,  whether  the  defendant,  by 
what  he  did,  made  himself  the  contracting  party. 

It  is  clear  to  ni}'  mind  that  he  did.  He  communicated  to  no  one 
that  he  was  acting  as  agent  \  he  did  nothing  b}'  word  or  act  to  indicate 
that  he  was  not  contracting  himself,  and  for  himself.     There  is  not  a 

1  The  judges  interrupted  this  argument  thus :  Pollock,  C.  B.  "  No  doubt,  the 
defendant  might  have  been  dismissed  by  Smith  from  his  service  shortly  before  the 
auction,  but  still,  looking  at  all  the  circumstances,  there  was  evidence  from  which 
the  jury  might  infer  that  the  defendant  was  acting  for  Smith,  and  that  the  plaintiff 
knew  it."  The  same  judge :  "  If  a  person  buys  goods  in  his  own  name,  he  is  liable 
to  pay  for  them,  although  he  in  fact  acts  as  agent  for  another."  Wilde,  B.  "  The 
goods  were  knocked  down  to  the  defendant,  and  he  was  asked  his  name.  He  replied 
'  Barton.'  Is  not  that  evidence  of  an  authority  to  the  auctioneer  to  sign  his  name  as 
purchaser  ?  "  Pollock,  C.  B.  "  The  que.stion  is  whether,  the  plaintiff  being  present, 
and  well  knowing  that  the  defendant  was  the  servant  of  Smith,  it  was  necessary  for 
the  defendant  to  say,  '  I  was  bidding  for  Smith.'  " —  Ed. 

2  The  judges  interrupted  this  argument  thus  :  Wilde,  B.  "  Suppose  a  person  goes 
into  a  shop  and  orders  some  cloth  to  be  sent  to  a  particular  place  ;  upon  which  the 
shopman  asks  him  his  name,  and  he  gives  it ;  prima  facie  he  makes  the  contract  on  his 
own  behalf ;  but  suppose  he  was  foreman  to  a  tailor,  and  the  shopman  knew  that  fact, 
might  not  the  jury  find  that  the  order  was  given  on  behalf  of  the  tailor  ?  "  The  same 
judge :  "  If  the  contract  was  with  the  defendant,  it  is  immaterial  whether  or  no  he 
was  an  agent,  but  in  ascertaining  whether  he  did  contract,  it  is  important  to  inquire 
whether  he  was  an  agent."  Pollock,  C.  B.,  in  answer  to  a  contention  that  the  plain- 
tiff might  have  objected  to  the  admissibility  of  any  evidence  of  agency  for  the  purpose 
of  varying  the  contract :  "  I  think  not.  I  agree  with  my  brother  Wilde  that  in 
investigating  whether  the  defendant  made  the  contract  on  his  own  behalf,  evidence  of 
the  relation  between  him  and  Smith  is  important."  —  Ed. 

'  After  stating  the  case.  —  Ed. 


538  WILLIAMSON    V.    BARTON.  [CIIAP.  III. 

single  incident,  however  slight,  in  his  conduct  at  the  sale,  to  distin- 
guish it  from  that  of  a  man  who  was  buying  for  liimself.  It  was  the 
ordinary  conduct  in  all  respects  of  a  buyer  at  an  auction. 

There  was  nothing,  tlierefore,  on  which  the  jury  could  properh'  be 
invited  to  find  that  he  did  not  make  himself  a  contracting  party.  It  is 
not  too  much  to  ask  or  expect  of  a  man  who  walks  into  an  auction 
room  and  becomes  a  purchaser,  that  when  he  gives  his  own  name  he 
should  protect  himself  from  being  taken  as  tlie  conti'acting  partj-. 

It  is  said  to  be  a  hard  case  on  the  defendant.  But  it  is  dangerous 
and  unwise  to  throw  doubts,  even  in  a  hard  case,  on  the  proper  con- 
clusions to  be  drawn  from  the  ordinary  events  of  an  auction  room. 
Sales  by  auction  are  far  too  common,  and  the  effect  of  bidding  and 
giving  a  name  to  the  auctioneer  as  purchaser  far  too  widelj'  understood 
by  the  community,  to  admit  of  such  doubts  being  sanctioned. 

Without  minutely  adverting  to  the  way  in  which  the  case  was  left 
to  the  jury,  it  is  enough  to  say,  that  on  these  facts  the  judge  ought, 
in  my  opinion,  to  have  told  the  jury,  that  if  tliey  believed  the  plaintiff's 
evidence,  though  they  equally  believed  the  defendant's  evidence,  the 
defendant  had  made  himself  a  contracting  party  at  the  sale,  and  that, 
having  done  so,  he  was  liable  though  in  fact  he  was  onl}-  agent. 

The  jury  having  been  left  to  find  the  contrary-,  the  verdict  ought  in 
m}'  judgment,  to  be  set  aside,  and  a  new  trial  granted. 

Bhamwell,  B.     I  think  this  rule  sliould  be  discharged. 

No  doubt  a  person  who  is  acting  for  another,  and  known  by  him 
with  whom  he  deals  to  be  so  acting,  ma}^  and  will  be  personall}'  liable  if 
he  contracts  as  a  principal,  and  tliat  whether  he  contracts  by  word  of 
mouth  or  in  writing.  The  difference  is,  that  if  the  contract  is  b}-  word 
of  mouth,  it  is  not  possible  to  sa}',  from  the  agent  using  the  words 
"  I "  and  "me"  that  he  means  himself  personally;  whereas,  if  the 
contract  is  in  writing,  signed  in  his  own  name,  and  speaking  of  him- 
self as  contracting,  the  natural  meaning  of  the  words  is,  that  he  binds 
himself  personally,  and  he  is  taken  to  do  so  ;  and  then  the  other  party 
is  bound  to  him.  Therefore,  in  this  case,  had  the  defendant  himself 
signed  the  conditions  of  sale  as  a  purchaser,  it  may  be  conceded  that 
he  would  have  been  liable  ;  but  the  plaintiff  would  also  have  been 
bound  to  him.  But  he  did  not  sign  the  conditions  of  sale  himself; 
they  were  signed  b}'  the  auctioneer's  clerk  and  unless  the  auctioneer's 
clerk  had  authority  from  him  so  to  sign  his  name,  the  defendant  is  not 
bound  b}'  that  signature.  The  question,  therefore,  was  a  proper  one 
to  leave  to  the  jury,  unless  the  admitted  facts  showed  that  the  auction- 
eer's clerk  had  such  authority.  If  they  did,  such  question  ought  not  to 
have  been  left  to  them,  and  there  was  a  miscarriage.  Now,  the  ad- 
mitted facts  relied  on  by  the  plaintiff  were,  that  the  defendant  attended 
the  sale,  that  he  bid,  that  he  was  asked  liis  name,  gave  it,  and  it  was 
written  down ;  and  I  agree  that  in  ordinar}'  cases  a  man  so  acting 
gives  authority  to  the  auctioneer  to  sign  his  name  as  a  purchaser ; 
and  if  the  case  stopped  there  the  defendant  would  be  bound.     But  he 


SECT.  III.]  WILLIAMSON    V.   BAKTON.  539 

may  show  other  facts  wliich,  taken  in  connection  with  those  first  named, 
alter  their  effect.  tSuppose,  for  instance,  the  defendant  had  said  before 
he  bid,  "  All  my  biddings  are  as  agent  for  Smith,  and  what  you  knock 
down  to  me  you  must  put  down  to  him ; "  surely  the  auctioneer 
would  have  had  no  authority  afterwards  to  write  his  name  down,  not 
even  though  he  forgot  what  had  taken  place,  and  asked  his  name,  and 
was  told.  So,  if  the  defendant  had  said  the  same  to  the  plaintiff, 
''Your  agent,  the  auctioneer,  is  selling  for  you;  I  am  buying  for 
Smith  ;  what  I  bid  for  must  be  put  down  to  him,"  the  same  result 
would  follow.  The  defendant  did  not  say  so  here  in  words,  but  to  my 
mind  there  is  evidence  to  go  to  the  jury  which  they  may  hold  equiva- 
lent to  his  having  done  so.  The  plaintiff  knew  the  defendant  was 
Smith's  foreman  ;  his  answer  on  that  point  is  a  discreditable  shuffle. 
He  knew  the  defendant  was  buying  for  Smith  ;  he  himself  was  close  to 
the  auctioneer ;  the  goods  were  delivered  to  Smith's  carts,  not  upon 
any  order  of  the  defendant,  nor  after  any  communication  with  him,  as 
appears  on  the  evidence.  If  the  defendant  was  bound  to  the  plahitiff, 
so  was  the  plaintiff  to  the  defendant.  Can  it  be  said  he  was  in  any 
way  ?  Suppose  there  had  been  no  writing  (and  there  having  been  a 
delivery,  none  was  necessary),  would  not  the  proper  question  have 
been  left  to  the  jury  ?  If  not,  what  difference  does  the  writing  make? 
Suppose  the  defendant,  on  being  asked  his  name,  had  said,  "  Barton, 
Smitli's  foreman."  But  if  the  defendant  was  concluded  by  the  writing, 
and  a  party  to  the  contract,  surel}-  he  is  discharged  by  the  plaintiff 
delivering  the  goods  to  the  principal  without  requiring  payment.  The 
conditions  of  sale  were  misunderstood  by  the  plaintiff's  counsel.  The 
purchaser  not  having  given  securit}-,  and  the  seller  not  electing  to  put 
up  the  lot  again,  the  transaction  became  a  ready-mone}'  one  ;  the  stip- 
ulation that  the  goods  should  be  considered  delivered  does  not  apply, 
and  the  seller  had  a  lien  for  the  purchase  money.  Yet  he  thinks  fit 
to  deliver  the  goods  to  the  principal  without  requiring  payment,  and 
thereby,  as  I  think,  discharges  the  agent,  if  ever  he  was  bound. 

But  it  was  said  that  the  other  question  was  improperly  left  to  the 
jur}'.  I  think  not.  It  was  a  right  question,  unless  the  matter  was 
concluded  by  the  evidence.  If  the  goods  were  delivered  to  Smith,  not 
upon  the  contract  with  Barton,  the  action  for  goods  sold  and  delivered 
could  not  be  maintained.  Now,  the  evidence  was  that  they  were  de- 
livered to  Smith's  carts.  Hov;  or  why,  it  did  not  appear.  It  was  for 
the  plaintiff  to  make  out  that  that  was  a  deliver}'  to  Barton.  Thers 
was  some  other  loose  and  untrustworth}'  evidence  of  Barton's  not 
denying  his  liabilit}',  which  precluded  my  withdrawing  the  case  from 
the  jury  ;  but  still  it  was  for  them  to  say  if  the}'  were  satisfied  that  the 
plaintiff  had  proved  that  delivery  ;  and  they  might  well  say  they  were 
not  satisfied,  not  only  because  it  was  not  shown  how  the  goods  came 
to  be  d(4ivered  to  Smith's  carts,  but  also  for  the  considerations  I  have 
adverted  to  relating  to  the  first  question. 

I  cannot  help  adding,  it  certainly  will  be  strange  if  the  defendant  is 


540  WORTHINGTON   V.   COWLES.  [CHAP.  III. 

liable  to  this  action.  He  did  not  think  he  was  buying,  nor  making 
himself  liable  ;  nor  did  the  plaintiff ;  nor  did  he  think  he  was  selling 
to  the  defendant.  The  auctioneer,  who  did  not  know  the  truth,  may 
have  thought  so ;  yet  the  defendant  is  to  be  made  liable  to  the  plaintiff 
contrary  to  the  belief  and  intention  of  both  of  them. 

Channell,  B.  I  concur  in  the  judgment  of  my  brother  Wilde,  and 
in  the  reasons  on  which  it  is  founded. 

Pollock,  C.  B.  In  this  case  I  am  of  opinion  that  the  rule  ought  to 
be  discharged.  It  is  contended  for  the  plaintiff  that  the  defendant  is 
liable,  because  he  attended  at  an  auction  of  the  plaintifTs  goods,  con- 
ducted by  the  auctioneer  as  agent  for  the  plaintiff,  and,  the  lot  being 
knocked  down  to  him,  he  was  asked  what  his  name  was,  which  he  gave, 
and  which  the  auctioneer  wrote  down  as  the  name  of  the  buyer,  making 
a  written  contract.  I  think,  if  the  plaintiff  was  present,  and  perfectly 
well  knew  that  the  defendant,  from  his  position  in  life,  could  not  be, 
and  therefore  was  not  bidding  for  himself,  and  the  defendant  had  no 
intention  of  bidding  or  buying  for  himself,  but  gave  his  name  because 
he  was  asked  what  his  name  was,  whatever  may  have  been  the  im- 
pression or  intention  of  the  auctioneer,  no  contract  was,  in  point  of 
fact,  made  between  the  plaintiff  and  the  defendant.  The  defendant 
did  not  mean  to  buy,  and  the  plaintiff  was  aware  of  that.  The  plain- 
tiff also  did  not  mean  to  sell  to  the  defendant,  but  to  his  principal  onl}-. 
I  think  there  were  circumstances  from  which  the  jur3-  might  infer  that 
such  was  the  real  state  of  things,  and  if  the  jury  had  an}'  evidence,  I 
am  not  disposed  to  disturb  their  verdict. 

The  Court  being  equally  divided  in  opinion  the  rule  dropped. 


WORTHINGTON  v.  COWLES  and  another. 
Supreme  Judicial  Court  of  Massachusetts.     1873. 

[112  Mass.  30.] 

Contract  to  recover  back  money  paid  b}'  the  plaintiff  to  the  defend- 
ants for  a  promissory  note  signed  by  one  Hanson,  the  indorsement 
upon  which  was  forged. 

Trial  in  the  Superior  Court,  before  Lord,  J.,  who,  after  a  verdict  for 
the  plaintiff,  allowed  the  defendants'  bill  of  exceptions,  from  which  it 
appeared  that  the  defendants  were  note  brokers,  and  were  known  as 
such  by  the  plaintiff;  that  they  were  acting  as  brokers  for  Hanson  in 
selling  the  note,  and  that  they  paid  him  the  purchase-money,  less  a 
commission,  before  the  forgery  was  discovered.  The  defendants  testi- 
fied that,  during  the  negotiations  which  resulted  in  the  plaintiff's  pur- 
chase of  the  note  they  informed  him  that  they  were  selling  the  note  as 
brokers  for  Hanson,  who  had  employed  them  to  sell  it.     There  was 


SECT.  III.]  WOETHINGTON   V.   COWLES.  541 

also  other  testimony-  tending  to  show  that  tlie  plaintiff  knew  or  had 
reasonable  cause  to  know  these  facts.  The  plaintiff  denied  any  such 
information  or  knowledge,  and  offered  evidence  tending  to  show  that 
there  was  no  disclosure  of  the  principal,  and  nothing  to  lead  him  to 
suppose  that  the  defendants  were  not  themselves  the  owners  of  the 
note. 

The  defendants  asked  the  court  to  rule  that  if  the  defendants  were  in 
fact  agents  for  Hanson,  and  disclosed  their  agency  to  the  plaintiff,  or 
the  plaintiff  knew  it,  or  had  reasonable  cause  to  know  it,  the  defendants 
would  not  be  liable.  But  the  court  refused  so  to  rule  ;  and  ruled  that 
the  question  was,  from  whom  did  the  plaintiff  understand  that  he  was 
buying  the  note,  —  from  the  brokers  or  from  Hanson?  that,  upon  the 
uncontroverted  facts,  prima  facie,  the  transaction  was  with  the  de- 
fendants, and  to  relieve  them  from  liability  there  must  have  occurred 
such  a  state  of  facts  that  the  plaintiff  understood,  or  ought  to  have 
understood  as  a  man  of  reasonable  intelligence,  that  he  was  dealing 
with  Hanson. 

G.  Putnam,  Jr.,  &  II.   W.  Putnam,  for  the  defendants. 

W.  A.  Field,  for  the  plaintiff. 

Morton,  J.  This  is  an  action  of  contract  upon  the  implied  warranty 
of  the  genuineness  of  the  signature  to  a  note  sold  by  the  defendants  to 
the  plaintiff.  The  plaintiff  claimed  that  in  the  purchase  of  the  note  he 
dealt  solely  with  the  defendants,  and  upon  their  credit.  The  defend- 
ants claimed  that  they  were  acting  as  agents  of  Han.son  in  the  transac- 
tion, and  that  their  principal  was  disclosed  to  the  plaintiff.  Upon  these 
points  the  evidence  was  conflicting.  The  defendants  asked  the  court 
to  rule  ''that  if  the  defendants  were  in  fact  agents  for  Hanson,  and 
disclosed  their  agency  to  the  plaintiff,  or  the  plaintiff  knew  it,  or  had 
reasonable  cause  to  know  it,  the  defendants  would  not  be  liable." 

Considered  as  an  abstract  proposition  of  law,  this  is  too  broad.  It 
omits  the  necessar}'  element  that,  in  the  dealing  or  ti'ansaction  in  ques- 
tion, the}'  were  acting  as  such  agents.  It  may  be  true  that  the 
defendants  were  agents  of  Hanson,  and  known  to  be  such  b}'  the 
plaintiff,  and  yet  if,  in  the  purchase  of  this  note,  it  was  understood  b}' 
the  parties  that  the  plaintiff  was  dealing  with  and  upon  the  credit  of 
the  defendants,  the}-  would  be  liable.  An  agent  may  deal  so  as  to  bind 
himself  personally  ;  it  is  always  a  question  of  the  intention  and  under- 
standing of  the  parties.  The  presiding  judge  properly  refused  to  give 
the  instructions  in  the  form  requested  by  the  defendants.  Insteac* 
thereof,  he  ruled  in  substance  that  the  question  was,  from  whom  did 
the  plaintiff  understand  that  he  was  buying  the  note,  —  from  the  brokers 
or  from  Hanson  ?  and  that  if  such  a  state  of  facts  occurred,  that  the 
plaintiff  understood,  or  ought  to  have  understood  as  a  man  of  reason- 
able intelligence,  that  he  was  dealing  with  Hanson,  the  defendants 
would  not  be  liable. 

These  instructions  were  correct,  as  applied  to  the  facts  of  the  case. 
The  plaintiff  dealt  with  the  defendants.     His  evidence  tended  to  show 


542  ELBINGER   ACTIEN-GESELLSCHAFT   l\    CLAYE.       [CHAP.  III. 

that  he  contracted  with  them  as  principals.  To  meet  this  prima  facie 
case,  the  defendants  undertook  to  show  that  in  this  transaction  they 
were  deaUng  as  agents  of  a  disclosed  principal.  Unless  from  their  dis- 
closures or  other  sources  the  plaintiff  understood,  or  ought  as  a  reason- 
able man  to  have  understood,  that  he  was  dealing  with  Hanson,  he  had 
a  riglit  to  assume  that  he  was  dealing  with  the  defendants  as  piincipals. 
The  instructions  given  were  to  this  effect,  and  were  as  favorable  to  the 
defendants  as  the  instructions  requested,  with  the  addition  of  the  neces- 
sary qualification  that  the  defendants  were  in  this  transaction  dealing 
as  the  agents  of  Hanson.  Wilder  v.  Cowles,  100  Mass.  487  ;  Merriam 
V.  Wolcott,  3  Allen,  258.  Exceptions  overruled.^ 


DIE   ELBINGER  ACTIEN-GESELLSCHAFT  v.   CLA^E. 

Queen's  Bench.     1873. 

[L.  R.  8  Q.  B.  313.] 

Declaration,  that  it  was  mutually  agreed  between  the  plaintiffs  and 
the  defendant  that  defendant  should  sell  and  deliver  to  plaintiffs,  and 
plaintiffs  should  buy  and  accept  from  defendant,  certain  goods,  to  wit, 
150  sets  of  Russian  wheels  and  axles,  upon  the  terms,  amongst  others, 
that  the  said  goods  should  be  delivered  at  Hull  free  on  board  during 
February  or  March,  1872.  Allegations  of  performance  of  all  conditions 
precedent ;  breach,  non-delivery,  alleging  special  damage. 

Plea,  inter  alia,  that  it  was  not  mutually  agreed  between  the  plaintiffs 
and  defendant,  as  alleged  ;  issue  joined. 

At  the  trial  before  Mellor,  J.,  at  the  sittings  in  London  after 
Hilary  Term,  it  appeared  that  the  plaintiffs  are  a  company  established 
in  Elbing,  in  Prussia,  for  tlie  purpose  of  manufacturing  railway  rolling 
stock  ;  and  in  December,  1871,  they  entered  into  an  agreement  with  a 
Russian  railway  company  to  supply  1000  railway  wagons  ;  and  in  order 
to  carry  out  this  contract  Mr.  Hambruck,  one  of  the  managing  directors 
of  the  plaintiffs'  company,  came  to  this  country,  and  through  the  agency 
of  Messrs.  Seebeck,  Wolff,  and  Co.,  commission  merchants  in  London, 
proceeded  to  negotiate  some  contracts  with  English  ironfounders. 
Amongst  others,  Messrs.  Seebeck  &  Co.  communicated  with  the  de- 
fendant, an  ironfounder  at  Long  Eaton;  and,  in  consequence,  the 
defendant  came  to  London,  and  on  the  29th  of  January,  1872,  had  an 
interview  with  Mr.  Seebeck,  one  of  the  partners,  and  Mr.  Hambruck, 
at  Messrs.  Seebeck  &.  Co.'s  office.  The  defendant  was  informed  of  the 
company's  contract,  and  was  asked  to  make  tenders  for  wheels,  &c., 
Mr.  Hambruck  producing  the  drawings,  but  Mr.  Seebeck  being  the 
chief  interlocutor.  The  defendant  then  signed  in  a  diary  kept  by  Mr, 
Seebeck  certain  memoranda,  of  which  the  following  onl}-  is  material  : 

1  Ace. :  Seaber  v.  Hawkes,  5  Moo.  &  Payne,  549  (1831).  —  Ed. 


SECT.  III.]      ELBINGER   ACTIEN-GESELLSCHAFT   V.   CLAYE.  543 

"  Mr.  Claye  also  offers  to  supply  150  sets  of  Russian  wheels  and 
axles,  5  feet  gauge,  with  iron  tires  and  axles,  but  cast-iron  bosses,  to  be 
delivered  during  Februar}'  and  March  this  year,  at  the  price  of  £31  per 
set  of  4  wheels  and  2  axles,  delivered  f.  o.  b.  in  Hull,  less  2^  per  cent 
commission,  payment  in  three  months  bankers'  bill  (at  par),  or  1;^  per 
cent  discount  for  cash  payment,  fourteen  days  after  shipment  from 
Hull.     Three  3'ears  guarantee. 

"This  offer  to  remain  open  until  Saturday,  the  3d  of  February. 

"  S.  J.  Claye." 

On  the  31st  of  January  the  defendant  wrote  to  Seebeck,  Wolff,  &  Co. 
that  he  could  not  proceed  with  the  wheels  and  axles  until  he  had  a 
working  drawing,  and  saying,  "  Please  telegraph  to  3-our  clients  to  this 
effect."  And  again,  on  the  1st  of  February  he  wrote,  "Hoping  to  have 
confirmation  of  order  for  the  150  sets  to-morrow." 

On  the  3d  of  Februar\'  Seebeck,  Wolff,  &  Co.  telegraphed  to  defend- 
ant, "  We  confirm  order  for  150  sets  of  wheels  and  axles,  Russian  pat- 
tern, with  cast-iron  bosses,  at  your  price  of  £31  less  2i^  and  1;^,  delivered 
f.  o.  b.  in  Hull  during  February  and  March  this  year,  with  your  guar- 
antee for  the  wheels  and  axles  of  three  years." 

On  the  same  day  Seebeck,  Wolff,  &  Co.  wrote  a  letter  to  the  defend- 
ant as  follows  :  — 

"  Since  we  have  had  the  pleasure  of  seeing  your  chief  at  our  office, 
we  have  received  both  your  favours  of  31  Jan.  and  1st  inst. ,  contents 
of  which  we  noted,  and  communicated  to  our  friend  the  railwa3-carriage 
builder  abroad. 

"  Although  we  have  received  in  the  mean  time  lower  quotations  of 
nearly  £2  per  set  for  the  150  sets  of  wheels  and  axles  of  the  Russian 
pattern,  we  confirmed  3'ou  to-day  this  order  b}'  telegram,  as  we  are 
desirous  of  commencing  business  with  you,  and  believe  that  you  will 
turn  out  first-rate  quality  and  keep  strictl}'  to  your  engagement  as  to 
deliver}'.  We  consequent]}-  telegraphed  to  you  this  morning  as  fol- 
lows :  "  [The  telegram  was  then  repeated.]  "  Enclosed  we  hand  you 
a  copy  of  these  Russian  wheels  and  axles,  but  with  wrought-iron  bosses  ; 
we  hope,  however,  it  will  be  sufficient  for  3'our  purpose,  and  have  in  the 
mean  time  asked  our  friend  to  send  us  the  correct  drawing." 

On  the  3d  of  Februar}-  the  defendant  wrote  to  Messrs.  Seebeck, 
Wolff,  &  Co. :  "  I  reph-  to  your  telegram  of  this  day,  for  which  I  thank 
3'ou,  confirming  personal  order  for  150  sets  of  wheels,  &c." 

The  invoices  of  the  wheels  and  axles,  when  delivered,  were  made  out 
to  Seebeck,  Wolff,  &  Co.,  and  they  paid  the  defendant  for  them.  But 
the  defendant  failed  in  delivering  most  of  the  sets  of  wheels  and  axles 
within  the  time  limited,  upon  which  this  action  was  brought. 

It  was  objected,  inter  alia,  on  behalf  of  the  defendant,  that  the  de- 
fendant's contract  was  not  with  the  plaintiffs,  but  with  Messrs.  Seebeck, 
Wolff,  &  Co. 


544  ELBINGER   ACTIEN-GESELLSCHAFT   T.    CLAYE.       [CHAP.  III. 

The  learned  judge  left  it  to  the  jury  to  say  whether  the  contract 
was  made  by  the  defendant  with  the  plaintiffs,  or  with  Messrs. 
Seebeck,  Wolff,   &  Co. 

The  jury  found  for  the  defendant. 

£utt,  Q.  C,  moved  for  a  new  trial,  on  the  ground  of  misdirection, 
and  that  the  verdict  was  against  the  weight  of  evidence. 

Blackbukn,  J.  I  do  not  entertain  the  slightest  doubt  that  there  is 
no  ground  whatever  for  granting  a  rule  in  this  case.  The  facts  appear 
to  be  that  a  foreign  compau}-,  being  desirous  of  having  a  quantity 
of  goods  supplied  in  England,  in  the  ordinary  course  of  trade,  got 
Seebeck  &  Co.,  commission  merchants  resident  in  London,  to  make  the 
contract  with  Mr.  Claye.  At  the  time  that  contract  was  made,  Mr. 
Claye  was  well  aware  that  the  goods  were  ordered  for  the  foreign  com- 
pany, but  the  offer  which  was  afterwards  accepted  by  Seebeck  &  Co. 
was  made  bj'  him  in  writing  in  the  book  of  Seebeck  &  Co.  without  any 
mention  of  the  foreign  company  ;  and  even  if  it  had  not  been  in  writing, 
the  ordinary  course  of  trade  would  have  been  that  the  contract  would 
be  with  Seebeck  &  Co.,  who  would  pledge  the  credit  of  their  firm.  I 
quite  agree  that  a  man  ma}',  as  agent,  make  a  contract  upon  such  terms 
as  not  only  to  bind  himself  but  also  so  as  to  bind  the  principal ;  in 
other  words,  so  that  the  principal  shall  be  party  to  the  contract,  and 
may  then  either  sue  or  be  sued.  I  must  say  I  think  that  the  two  things 
are  correlative.  A  man  cannot  make  a  contract  in  such  a  way  as  to 
take  the  benefit,  unless  also  he  take  the  responsibility  of  it.  But 
although  such  a  contract  ma}'  be  where  the  principals  are  English  ;  yet 
where  a  foreigner  has  instructed  English  merchants  to  act  for  him,  I 
take  it  that  the  usage  of  trade,  established  for  man}'  j'ears,  has  been 
that  it  is  understood  that  the  foreign  constituent  has  not  authorized  the 
merchants  to  pledge  his  credit  to  the  contract,  to  establish  privity 
between  him  and  the  home  supplier.  On  the  other  Ltand,  the  home 
supplier,  knowing  that  to  be  the  usage,  unless  there  is  something  in 
the  bargain  showing  the  intention  to  be  otherwise,  does  not  trust  the 
foreigner,  and  so  does  not  make  the  foreigner  responsible  to  him,  and 
does  not  make  himself  responsible  to  the  foreigner.  The  dicta  which  I 
referred  to  of  Chief  Justices  Sir  J.  Mansfield  (Addison  v.  Gandasequi, 
4  Taunt,  at  p.  580,  Paterson  v.  Gandasequi,  15  East,  62)  and  Lord 
Tenterden  (Thomson  v.  Davenport,  9  B.  &  C.  at  pp.  87,  89)  and  of 
Bayley,  J.  {ib.)  are  to  this  effect ;  and  the  passage  which  I  read  from 
the  judgment  in  Armstrong  v.  Stokes  (L.  R.  7  Q.  B.  at  p.  605)  ex- 
pressly enunciates  this  proposition  ;  and  I  think  it  is  quite  plain  that  in 
the  present  case  tlie  presumption  was  that  Mr.  Seebeck  was  not  acting 
under  authority  from  the  Elbinger  Company  to  pledge  their  credit  to 
Claye,  and  that  Claj'e  did  not  trust  the  foreigners  at  all,  but  Seebeck  & 
Co.  only. 

There  might,  no  doubt,  be  a  contract  made  in  a  different  way  between 
the  two  parties  bargaining  together,  and  there  might  be  evidence  of 
that  in  the  present  case.     My  Brother  Mellor  left  the  question  to  the 


SECT.  III.]  COVELL   V.    HART.  545 

jur^' :  Was  the  contract  made  with  the  foreigner  or  not?  But  I  cannot 
see  an}'  evidence  on  which  the  jury  could  find  that  in  the  affirmative : 
m}'  onl}'  doubt  is  whether  he  ought  not  to  have  directed  the  jury  that 
there  was  no  evidence  on  which  to  find  for  the  plaintiffs  against  the 
defendant ;  but  he  left  the  question  for  the  jurv,  and  the  jury  found  for 
the  defendant ;  and  I  should  have  felt  greatly  surprised  if  they  had 
found  otherwise.  I  do  not,  therefore,  see  the  slightest  reason  to  say 
that  there  was  any  misdirection,  or  that  the  verdict  was  contrary  to  the 
weight  of  evidence. 

Lush,  J.  I  quite  agree  with  Mr.  Butt  that  an  agent  may  make  a 
contract  by  which  he  may  become  personally  liable,  while  he  still  makes 
it  on  behalf  of  his  principal,  so  that  the  other  party  has  a  choice  to  go 
against  either  the  one  or  the  other ;  that  is,  that  the  contract  may  be 
such  as  to  make  the  principal  as  well  as  the  agent  himself  a  party  to 
the  contract.  But  if  the  principal  be  made  a  party  to  the  contract,  he 
must  be  both  able  to  sue  and  liable  to  be  sued  ;  for,  here,  I  also  agree 
with  my  Brother  Blackburn  that  he  cannot  be  a  part}'  so  as  to  be  able 
to  sue,  and  yet  not  a  party  so  as  to  be  liable  on  it.  The  evidence  here 
excludes  the  one  altogether,  because,  as  I  understand  the  evidence,  the 
foreign  principal  was  known  to  the  defendant,  and,  in  fact,  was  present 
at  the  time  of  the  offer;  and  the  jury  have  said  in  substance  —  and  I 
think  there  is  evidence  to  justify  that  conclusion  —  that  what  the  de- 
fendant said  in  effect  was,  I  know  the  goods  are  not  for  you,  Seebeck 
&  Co.,  but  I  will  not  deal  with  your  foreign  principal,  but  only  with 
you.  That  being  so,  the  foreigner  is  excluded  both  for  the  purpose  of 
liability  and  for  the  purpose  of  suing  and  taking  the  benefit  of  the 
contract. 

Mellor,  J.     I  am  entirely  of  the  same  opinion. 

Hule  refused.^ 


COVELL,  Respondent,  v.  HART  and  another,  Appellants. 
Supreme  Court  of  New  York,  Third  Department.     1878. 

[14  Run,  252.] 

Appeal  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon  the 
verdict  of  a  jury,  and  from  an  order  denying  a  motion  for  a  new  trial 
made  upon  a  case  and  exceptions. 

The  action  was  brought  to  recover  the  value  of  services  rendered  by 
the  plaintiff  in  examining  a  set  of  books,  in  pursuance  of  directions 
received  from  the  defendants,  a  firm  of  attorneys,  and  for  which  he 
sought  to  hold  them  liable  in  this  action. 

1  On  a  subsequent  day,  W.  Williams,  Q.  C,  applied  on  behalf  of  the  plaintiffs  for 

leave  to  appeal,  but  the  Court,  having  no  doubt  in  the  matter,  refused  leave Rep 

36 


546  COVELL   V.    HART.  [CHAP.  III. 

E.  F.  BabcocJc,  for  the  appellants. 

Turner^  Dexter  S  Van  Duzer^  for  the  respondent. 

BocKES,  J.  The  defendants  were  attorneys  and  counsellors  of  this 
court,  and  formed  a  professional  partnership  the  second  time  in 
November,  1873.  Tlieir  former  partnership,  which  terminated  several 
years  previously,  need  not  be  here  noticed.  During  several  years  prior 
to  November,  1873,  the  defendant,  Hart,  had  in  charge,  for  one  of  the 
parties,  an  action  involving  the  settlement  of  an  extinct  partnership. 
The  management  of  this  action  remained  with  Hart  after  his  profes- 
sional connection  with  McGuire  in  1873.  In  order  to  prepare  the  case 
for  trial,  it  became  necessary  to  have  an  examination  of  the  partnership 
books.  The  plaintiff,  who  was  an  experienced  bookkeeper,  was  era- 
ployed,  as  he  alleged,  b}'  the  defendants,  then  partners,  to  perform  this 
service  ;  and  he  was  engaged  in  such  service  for  a  considerable  time. 
The  action  is  brought  to  recover  for  those  services. 

The  defendants  denied  the  alleged  emplo3ment,  and  especially  con- 
troverted an}'  joint  liability  ;  and  also  insisted  that  the  services  were 
performed  for  their  client  as  principal  debtor  ;  hence,  that  they  were 
not,  nor  was  either  of  them,  liable  in  this  action.  The  questions  raised 
on  this  appeal  are  presented  by  the  various  exceptions  to  tlie  rulings  of 
the  learned  judge  at  the  trial,  on  submitting  the  case  to  the  jur}'.  Of 
those  exceptions,  but  two  need  to  be  here  considered. 

It  must  be  assumed  that  the  jury  found  a  joint  employment  by  the 
defendants  of  the  plaintiff  to  perform  the  services.  Still,  in  this  view 
of  the  case,  it  was  an  employment  by  known  agents  for  services  to  be 
performed  for  the  benefit  of  a  principal,  whose  name  and  relation  to 
the  subject-matter  of  the  service  were  known  to  the  plaintiff  at  the  time 
of  the  employment.  It  is  laid  down  as  a  general  rule  that,  where  a 
person  is  known  to  act  as  a  mere  agent,  and  the  principal  is  known, 
and  there  is  no  express  agreement  b}'  the  agent  for  a  personal  liabilitj', 
and  there  are  no  circumstances  from  which  it  ma}'  properly  be  inferred 
that  the  credit  is  given  to  him,  the  agent  is  not  personally  liable,  though 
he  be  the  person  who  makes  the  contract.  So,  an  agent  is  not  liable 
when  he  keeps  within  the  limits  of  his  authorit}',  and  discloses  the  name 
of  his  principal  at  the  time  of  making  the  contract.  This  principle  of 
law  is  applicable  to  the  case  of  attorney  and  client.  Judson  v.  Gra}', 
11  N.  Y.  408,  411,  and  cases  there  cited.  The  rule  is  there  quoted 
with  approval,  that,  in  conducting  the  suit,  so  far  as  thii'd  persons  are 
concerned,  the  attorney  is  simply  the  agent  of  his  client. 

This  rule  may  not  be  applicable  to  services  performed  for  an  attorney 
by  a  public  officer,  who  is  bound  by  law  to  act  in  the  matter  entrusted 
to  him  by  an  attorne}-.  Judson  v.  Gray,  supra  ;  Campbell  v.  Cothran, 
66  N.  Y.  279.  The  case  in  hand  is  one,  however,  of  voluntary'  engage- 
ment b}'  the  plaintiff,  hence  the  ordinarj-  rule  applicable  to  principal 
and  agent  obtains.  The  services  contracted  for  were  not  such  as  per- 
tained to  the  duties  of  an  attorney  in  his  professional  character.  Yet 
they  were  such  as  he  might  cause  to  be  performed  for  the  benefit  of  his 


SECT.  III.]  COVELL   t.    HART.  547 

client.  He  might  bind  his  client  to  any  service  necessary'  to  the  prep- 
aration of  the  case  for  trial.  Here,  however,  this  latter  point  is  of  little 
importance,  as  enough  appeared  in  the  evidence  to  warrant  an  approval 
of  the  engagement  by  the  client.  In  this  case,  then,  the  plaintiff  could 
not  recover  against  the  defendants,  inasmuch  as  the  former  knew  of 
their  agency  and  that  they  were  acting  for  a  well-known  principal, 
unless  they  contracted  for  themselves  and  gave  the  plaintiff  their  per- 
sonal credit.  This  could  only  be  established  against  the  defendants 
under  the  undisputed  facts  in  the  case,  by  an  express  promise  on  their 
part  to  be  themselves  personally  liable,  on  proof  of  facts  and  circum- 
stances equivalent  to  an  express  promise  by  them.  We  are  now  brought 
to  the  consideration  of  a  request  for  an  instruction  to  the  jury  on  this 
branch  of  the  case,  which  instruction  was  refused.  The  learned  judge 
was  requested  to  charge  the  jury  in  substance  and  effect,  that  if  the 
defendants  employed  the  plaintiff  to  perform  the  service  under  authorit}' 
from  their  client,  and  the  plaintiff  had  knowledge  that  the  employment 
was  for  their  client,  then  the  plaintiff  could  not  recover  against  them, 
but  must  take  his  remedy  against  their  client.  This  is  not  the  exact 
language  of  the  request,  but  embodies  its  spirit  and  fair  meaning.  An 
employment  for  their  client  must  be  understood  to  mean  an  employ- 
ment on  his  behalf  and  on  his  responsibilit}'.  If  such  was  the  em- 
ployment it  was  not  on  the  personal  liability  of  the  defendants.  The 
defendants  were  entitled  to  have  this  instruction  given  as  requested,  as 
the}-  were  also  entitled  to  the  instruction  asked  for,  that  if  the  defend- 
ants employed  the  plaintiff  for  and  on  behalf  of  their  client  to  do  the 
work  as  in  their  judgment  necessary' in  their  client's  suit,  then  the  client 
was  liable  to  the  plaintiff  therefor,  although  the  plaintiff,  when  he  began 
the  work,  did  not  know  who  the  client  was  or  that  the  work  was  for 
him.  The  proposition  was  sound  in  law  ;  and,  under  the  evidence  in 
this  case,  being  contradictory  on  almost  ever}'  point  connected  with  the 
subject  of  the  plaintiffs  employment,  it  was  not  so  foreign  to  the  ques- 
tion to  be  considered  by  the  jury  as  to  be  absolutely  immaterial.  It  is 
true  these  instructions  were  refused  save  as  the  subject  had  been 
alread}'  charged  upon.  But  on  looking  into  the  general  charge  it  will 
be  seen  that  the  ideas  intended  to  be  put  forth  in  the  request  were  not 
specifically  advanced. 

For  the  reasons  above  suggested  the  judgment  and  order  appealed 
from  must  be  reversed. 

Learned,  P.  J.,  and  Osborn,  J.,  concurred. 

Judgtnent   and  order    reversed ;    new   trial  granted^    costi 
to  abide  event. 


548  BATEMAN   V.   PHILLIPS.  fCHAP.  IV. 


CHAPTER  IV. 
PARTIES  TO  WRITINGS.* 


SECTION   I. 

Instruments  neither  negotiable  nor  Sealed, 

ALFORD   V.   EGLISFIELD. 
Common  Pleas.     1564. 

{Dyer,  230  b.] 

Note,  by  the  opinion  of  the  Justices  of  the  Bench,  that  if  a  purvej'or, 
factor,  or  servant,  make  a  contract  for  his  sovereign,  or  master,  for 
fat  beasts,  for  a  certain  sura  of  mone^-,  and  make  a  bill  of  receipt  for 
the  beasts  to  the  use  and  behoof  of  the  sovereign  or  master,  and  besides, 
by  the  same  bill  bind  himself  to  payment  at  a  da3'  certain,  but  do  not 
seal  the  bill,  this  is  not  such  a  contract  as  shall  charge  the  purveyor  or 
servant  by  writ  of  debt  counting  upon  a  buying,  but  an  action  on  the 
case  will  serve  on  this  occasion  upon  an  assumpsit. 


BATEMAN  v.   PHILLIPS. 
King's  Bench.     1812. 

[15  East,  272.] 

The  plaintiff  counted  upon  a  promise  made  to  him  by  the  defendant 
to  paj'  the  debt  of  David  Williams,  if  he  did  not  pay  it,  in  considera- 
tion of  the  plaintiff's  forbearing  to  sue  Williams  for  a  week :  and 
having  recovered  a  verdict  before  Wood,  B.,  at  Hereford. 

Peake  now  moved  to  set  it  aside,  and  enter  a  nonsuit,  upon  the 
ground  that  there  was  no  sufficient  evidence  of  the  defendant's  promise 
in  writing  within  the  4th  section  of  the  statute  of  frauds.     He  stated 

*  And  see  Chapter  V. 


SECT.  I.]  BATEMAN   V.    PHILLIPS,  549 

the  facts  to  be,  that  the  plaintiff"  was  about  to  sue  "Williams  for  a  debt 
of  £80,  and  had  employed  Mr.  Gwyn  his  attorney  for  that  purpose, 
when  the  defendant  addressed  the  following  letter  to  Mr.  Gwyn,  dated 
Monday.  "  Sir,  the  bearer  David  Williams  has  a  sum  of  money  to 
receive  from  a  client  of  mine  some  daj'  next  week,  and  I  trust  you  will 
give  him  indulgence  till  that  day,  when  I  undertake  to  see  you  paid." 
(Signed  by  the  defendant.)  Mr.  Gwyn  was  called  as  a  witness  at  the 
trial  to  prove  that  this  letter  was  addressed  to  him  as  the  attorney  for 
the  plaintiff ;  that  it  was  brought  to  him  b}'  Williams  ;  and  the  amount 
of  the  debt  due  from  Williams  to  the  plaintiff  was  also  proved.  It  was 
now  observed  that  the  name  of  the  plaintiff  was  not  mentioned  in  the 
letter,  nor  the  amount  of  the  debt ;  and  that  if  this  could  be  received 
in  evidence  to  charge  the  defendant  within  the  statute,  it  was  open  to 
the  plaintiff's  attorney  by  parol  evidence  to  have  applied  the  letter  to 
an}'  other  person,  or  for  any  other  sum,  in  direct  contravention  of  the 
statute,  which  meant  to  exclude  all  parol  evidence  of  an  agreement  to 
pay  the  del)t  of  another,  by  requiring  the  writing  to  contain  the  agree- 
ment, that  is,  the  whole  agreement.  .  .  .  That  Gwyn  was  the  attorne}' 
for  the  plaintiff  depends  entirely  upon  his  parol  evidence :  he  might 
have  applied  the  letter  to  anv  client  of  his  to  whom  Williams  was  in- 
debted. [Bayley,  J.  If  you  had  shown  that  Williams  was  indebted 
at  the  time  to  another  client  of  Gwyn's,  that  might  have  made  a 
doubt]  ... 

Lord  Ellenborough,  C.  J.  The  parol  evidence  received  did  not  go 
to  extend  the  terms  of  the  agreement  in  writing :  it  only  went  to  show- 
that  the  letter  was  addressed  to  him  as  the  attorney  for  the  plaintiff*, 
and  not  as  the  principal  and  creditor  of  Williams.  Would  it  be  con- 
tended to  be  necessary  to  state  the  ver}'  sum  to  be  paid  where  it  ap- 
peared that  the  defendant  meant  to  say  to  the  plaintiflE",  whatever  sum 
Williams  owes  you  I  engage  to  pa}'  it  if  you  will  not  sue  him  ?  If  the 
defendant  did  not  know  the  exact  amount  of  the  debt,  might  he  not 
contract  to  pay  it  in  those  terms?  The  parol  evidence  does  not  enlarge 
any  term  of  the  letter :  and  I  think  it  would  be  holding  the  statute  too 
strictly  to  say  that  this  was  not  sufficient  evidence  of  the  contract. 

Le  Blanc,  J.  If  the  doctrine  were  to  be  pushed  the  length  now 
contended  for,  we  must  say  that  a  man  could  not  contract  in  writing 
with  another  to  pay  him  for  all  the  goods  with  which  he  had  furnished 
a  third  person  in  the  course  of  the  antecedent  month.  Or  suppose  the 
writing  had  only  contained  a  promise  to  pay  the  debt  of  Williams; 
would  not  that  be  sufficient  without  mentioning  the  amount? 

Per  Ccriam,  HuJe  refused. 


550  EVANS  V.   EVANS.  [CHAP.  IV. 


JOHN  EVANS  AND  JAMES  THOMAS   v.   DAVID   EVANS. 
King's  Bench.     1834. 

[3  Ad.  S,-  E.  132.] 

Debt.  The  declai-ation  stated  the  defendant  to  be  indebted  to  the 
plaintiffs  in  the  sum  of  £85  "for  the  use  and  occupation  of  certain 
lands  witli  the  appurtenances  by  the  defendant  at  his  special  instance 
and  request,  and  by  the  sufferance  and  permission  of  the  said  plaintiffs 
for  a  long  time  before  then  elapsed,  had  held,  used,  occupied,  and 
enjoyed ; "  also  in  £85  for  the  use  and  occupation  of  lands  with  the 
appurtenances  of  the  said  plaintiffs,  by  the  said  defendant  at  his  special, 
etc.,  and  by  the  sufferance  and  permission  of  the  said  plaintiffs,  for  a 
long  time,  etc.  (as  before)  ;  also  in  other  sums  for  monies  lent,  paid, 
had,  and  received,  and  on  an  account  stated.  Plea,  the  general  issue. 
At  the  trial  before  Gurney,  B.,  at  the  Cardigan  Spring  Assizes,  1834, 
the  case  for  the  plaintiffs  was  as  follows  :  David  Jones,  being  tenant  of 
the  lands  in  question,  and  being  indebted  both  to  the  plaintiffs  and 
to  the  defendant,  made  an  arrangement  with  the  plaintiffs,  who  were 
auctioneers  in  partnership,  that  they  should  let  the  lands  l)y  auction 
upon  the  conditions  after-mentioned,  should  pay  Jones's  landlord  the 
rent  then  coming  due  and  the  rent  for  the  next  year,  should  also  pa}'  the 
rates  and  other  charges  on  the  farm,  and,  after  such  payments,  should 
retain  to  their  own  use  the  overplus  of  the  rent  at  which  the  lands  might 
be  let,  and  should  have  a  certain  allowance  for  collecting.  The  lands 
were  let  by  auction.  The  conditions,  which  were  read  at  the  letting, 
were  in  these  words  :  — 

"  Fields  let  by  auction  at  Veniog,  in  the  parish  of,  &c.,  on  the  16th 
day  of  October,  1832  (being  the  farm  of  Veniog),  subject  to  the  follow- 
ing conditions :  — 

"  By  Messrs.  Evans  and  Thomas,  auctioneers. 

"  First,  the  fields  are  let  from  to-day  till  Michaelmas  next,  free  from 
all  rates  (tithes  excepted). 

"  Secondly,  the  rent  is  to  be  paid  into  the  hands  of  John  Evans  or 
James  Thomas,  auctioneers,  or  to  their  order,  at  two  moieties  or  pay- 
ments, that  is  to  sa}',  one  half  on  the  10th  day  of  July  next,  and  the 
remaining  half  on  the  29th  day  of  September  following. 
"Approved  of  the  above  conditions. 

"By  me,  David  Jones." 

After  which  followed  a  description  of  the  lots.  The  defendant  took 
the  lands  and  occupied  them.  The  plaintiffs  received  rent  from  him  in 
respect  of  them,  and  paid  it  over  to  the  landlord.  At  the  close  of  the 
plaintiffs'  case  the  defendant's  counsel  contended  that  there  must  be  a 
nonsuit,  for  that  the  plaintiffs,  who  let  as  auctioneers,  could  not  main- 
tain an  action  for  use  and  occupation ;  and  Jarvis  v.  Chappie,  2  Chit. 


SECT,  ].]  EVANS   V.   EVANS.  551 

Rep.  387,  was  cited.  The  learned  judge  overruled  the  objection,  saying 
that  in  the  present  case  there  was  an  express  contract  between  the 
plaintiffs  and  the  defendant.  E^vidence  was  then  given  on  the  defend- 
ant's part,  to  show  that  no  such  arrangement  existed  between  Jones 
and  the  plaintiffs  as  above  stated ;  that  they  let  the  premises  and 
received  the  rents  merely  as  his  agents,  and  that  the  defendant  took 
the  lands  upon  an  understanding  with  Jones  (previous  to  his  supposed 
arrangement  with  the  plaintiffs),  that  he  should  make  a  reduction  from 
the  rent  in  respect  of  the  sum  which  he  owed  the  defendant.  The 
learned  judge  left  it  to  the  jury  whether  the  plaintiffs  had  disposed  of 
the  lands  as  agents  for  Jones,  or  on  their  own  behalf  as  creditors,  and 
to  reimburse  themselves  for  money  which  they  had  advanced  ;  adding 
that,  in  the  latter  case,  the  defendant  could  not,  after  having  heard 
the  conditions  of  sale  read,  and  agreed  to  pa}-  the  rent  to  the  plaintiffs, 
avail  himself  of  an  alleged  private  arrangement  between  himself  and 
Jones  to  defeat  the  plaintiffs'  claim  ;  and  that,  even  if  such  arrangement 
existed,  it  made  no  difference,  as  the  defendant  had  agreed  to  pay  the 
plaintiffs.  The  jury  found  for  the  plaintiffs,  and  said  thej'  thought  that 
the  plaintiffs  had  let  to  the  defendant  under  the  agreement  between 
them  and  David  Jones,  on  their  own  account  as  creditors,  and  not  as 
agents.  In  the  ensuing  term  John  Evans  obtained  a  rule  nisi  for  a 
nonsuit  to  be  entered  upon  the  objection  above  stated,  or  for  a  new 
trial. 

Maule  now  showed  cause. 

Sir  W.  W.  Follett,  with  whom  was  Ecans,  contra. 

Lord  Denman,  C.  J.  If  it  clearly  appeared  that  the  defendant  was 
aware  of  such  an  arrangement  as  has  been  suggested,  between  the 
plaintiffs  and  David  Jones,  that  might  var}-  the  case.  But  it  is  manifest 
that  the  defendant  took  under  the  conditions  of  sale.  Now  the  condi- 
tions merel}'  import  that  fields  are  to  be  let  by  auction  b}-  the  plaintiffs, 
auctioneers,  and  it  cannot  be  doubted  that  the  defendant  knew  that 
David  Jones  was  owner.  Then  come  the  words,  ''The  rent  is  to  be 
paid  into  the  hands  of  John  Evans  or  James  Thomas,  auctioneers,  or  to 
their  order,"'  in  certain  instalments;  and  then  follows,  •'  Approved  of 
the  above  conditions,  b}'  me,  David  Jones."  Looking  at  these  condi- 
tions, which  in  fact  constituted  the  agreement,  there  is  no  proof  whatever 
that  the  defendant  considered  that  he  should  liold  from  the  plaintiffs. 
On  the  contrary,  the  signature  of  David  Jones  showed  that  he  was  not 
to  hold  from  them. 

LiTTLEDALE,  J.  I  am  of  the  same  opinion.  The  words,  "  b}'  Messrs. 
Evans  and  Thomas,  auctioneers,"  show  that  the}'  represented  themselves 
as  the  mouthpiece  of  the  person  realh'  letting.  Then,  "The  rent  is  to 
be  paid  into  the  hands  of  John  Evans  or  James  Thomas,  auctioneers, 
or  their  order,"  and  at  the  end  is  added,  "  Approved  of  the  above  condi- 
tions, b}'  me,  David  Jones."  It  was  known,  therefore,  that  he  was  the 
owner  ;  and  the  meaning  was,  "  I,  David  Jones,  authorize  j'ou  to  let." 
That  is  the  only  authority  given.     It  is  true  that  he  goes  on  to  say, 


552  JONES    V.   LITTLEDALE.  [CHAP.  IV. 

"  Pay  the  rent  into  the  hands  of  John  Evans  or  James  Thomas,"  and 
payment  to  them  would  have  been  a  discharge.  But  tbey  are  merely 
agents.  The  lessor  is  David  Jones:  he  is  therefore  the  only  person 
to  sue. 

Patteson,  J.  The  question  here  does  not  turn  upon  the  objection 
stated  as  a  ground  of  nonsuit.  There  must  be  a  new  trial  on  the  ques- 
tion of  fact,  not  on  any  point  of  law.  The  question  of  fact  is,  by  whose 
permission  did  the  occupation  take  place,  and  by  whom  was  the  contract 
made?  That  is  in  general  a  matter  to  go  to  the  jury  ;  but  if  the  ques- 
tion depend  upon  the  construction  to  be  put  on  a  document  which  is  in 
evidence,  then  it  rests  with  the  Court.  Here  the  conditions  of  sale 
constitute  the  only  document,  and  upon  that  I  can  see  no  doubt.  If 
the  plaintiffs  let  for  themselves,  why  is  David  Jones's  name  added? 
The  plaintiffs  would  in  that  case  have  been  the  persons  to  sign.  The 
document  does  not  say  b}'  whom  the  premises  are  let.  It  is  true  that 
the  rent  is  to  be  paid  into  the  hands  of  "Messrs.  Evans  and  Thomas, 
auctioneers  ;  "  but  this  amounts  onl}'  to  an  authority  given  by  Jones 
to  pa3-  into  their  hands  ;  indeed  it  is  more  than  authority' ;  it  is  an 
express  direction.  This  was  not  put  to  the  jur^-  b}'  the  learned  judge. 
He  has,  therefore,  not  explained  to  them  the  proper  construction  of 
the  document. 

Coleridge,  J.  At  first  I  thought  that  the  fact  was  properly  left  to 
the  jur\-.  But  as  it  was  to  be  determined  by  the  construction  of  a 
document,  the  effect  of  that  document  should  have  been  properly 
explained  to  them  by  the  judge.  Here  the  letting  was,  professedly, 
bv  the  plaintiffs  as  auctioneers,  and  Jones  signed  the  conditions. 
There  may  have  been  an  understanding  between  the  plaintiffs  and 
Jones,  that  the  plaintiffs  should  pay  themselves  out  of  the  rents. 
But  as  to  the  contract  of  the  defendant,  there  was  clearly  a  misdirection. 

Jiule  absolute  J^or  a  new  trials 


JONES  V.   LITTLEDALE  and   others. 

King's  Bench.     1837. 

[6  Ad.  cj-  E.  486. J 

Assumpsit  for  not  delivering  a  quantity  of  hemp,  alleged  to  have 
been  bought  by  the  plaintiff  of  the  defendants  at  the  price  of  £155  14s. 
\\d.  There  was  also  a  count  for  money  had  and  received,  and  on  an 
account  stated.  The  defendants  pleaded  to  the  first  count,  and  all  but 
£52  in  the  second  count,  non  assiimpsertint  ;  and  as  to  that  £52  a 
tender.     The  particulars  of  demand  claimed  £155  14s.  \\d. 

1  8ee  Fisher  v.  Marsh,  6  B.  &  S.  411  (1865)  ;  Woolfe  v.  Home,  2  Q.  B.  D.  355 
(1877).  — Ed. 


SECT.  I.]  JONES   V.   LITTLEDALE.  553 

On  the  trial  before  Tatteson,  J.,  at  the  last  Liverpool  assizes,  it 
appeared  that  the  pkiiutiff  had  (iu  1836),  bought,  by  auction,  at  the 
rooms  of  the  defendants,  who  were  brokers  at  Liverpool,  the  hemp  in 
question,  to  be  paid  for  at  certain  times  then  agreed  on:  that  the  de- 
fendants afterwards  sent  an  invoice  of  the  goods,  headed,  — 

" Jones, 

"  Bought  of  J.  and  H.  Littledale, 
"  Sixty-four  bales  of  hemp.     Payment  fourteen  days  and  six  months. 
Received  on  account  £100,  October  31. 

"  Settled  November  26. 
"  (Signed  by  defendant's  clerk.)  " 

That  the  plaintiff,  on  the  31st  of  October,  paid  the  defendants  £100, 
and  afterwards,  on  the  26th  of  November,  the  residue,  £52  ;  and  on 
the  latter  day  asked  for  a  deliver}'  order.  An  order  on  Messrs.  Coup- 
land  and  Duncan  was  given  him,  which  on  presentation  the  same  day 
was  refused  ;  and  one  of  the  defendants,  being  applied  to,  said  that  he 
would  see  his  attorne}',  and  procure  the  delivery ;  but  the  defendants 
never  did  procure  the  deliver}-.  In  answer,  the  defendants  offered  to 
prove  that  the  hemp  was  advertised  in  two  newspapers,  which  the 
plaintiff  was  in  the  habit  of  seeing,  for  sale,  at  the  rooms  of  the  de- 
fendants, brokers,  with  a  reference  to  Coupland  and  Duncan,  mer- 
chants.^ That  it  was  .sold  by  auction  at  the  defendants'  rooms  under 
printed  conditions  of  sale,  describing  the  defendants  as  the  seller's 
brokers,  but  not  mentioning  the  name  of  the  seller  ;  that  the  defendants 
had  made  advances  to  Messrs.  Coupland  and  Duncan  on  these  and 
other  goods ;  and  that  the  custom  at  Liverpool  was  for  brokers,  when 
they  had  made  advances,  to  deliver  invoices  in  their  own  names,  in 
order  to  secure  the  passing  of  the  purchase-mone}'  through  their  hands. 
That  Messrs.  Coupland  and  Duncan  became  bankrupts,  and  that  a  fiat 
issued  on  the  25th  of  November.-  The  learned  judge  thought  that 
these  facts,  if  proved,  constituted  no  defence  to  the  action  ;  and  directed 
a  verdict  for  the  plaintiff. 

Cressicell  now  moved  for  a  rule  to  show  cause  why  there  should  not 
be  a  new  trial,  on  the  ground  of  misdirection. 

Lord  Denman,  C.  J.  On  moving  to  set  aside  this  verdict,  the  coun- 
sel for  the  defendants  argued  that  the  sale  b}'  auction  was  the  contract, 
from  which,  and  the  previous  advertisement,  it  was  apparent  that  the 
plaintiff  knew  that  the  defendants  were  only  agents,  and  who  the  prin- 
cipals were,  and  that  the  learned  judge  should  have  left  to  the  jury  to 
sa}'  whether  the  contract  was  made  with  the  defendants,  or  the  princi- 
pals ;  urging  also  that,  if  the  purchase-monej-  had  been  paid  at  the 
proper  time,  the  plaintiff  would  have  obtained  the  goods ;  and  con- 
tending that  the  £100  must  be  taken  as  paid  to  the  principals,  and 

1  The  advertisement,  after  describing  tiie  oroods,  added,  "  Apply  to  Coupland  and 
Dnncan,  merchants,  or  Littledale  and  Co.,  brokers."  —  Rep. 
2  It  was  admitted,  on  the  trial,  that  the  defendants  had  tendered  the  £52.  —  Rep. 


554  HIGGINS   V.    SENIOR.  [CHAP.  IT. 

might  be  proved  under  the  fiat  against  them,  and  that  the  £;V2  paid 
after  the  fiat  had  been  tendered.  And  he  cited  Moore  v.  Clementson, 
2  Camp.  22,  to  show  that  the  form  of  the  invoice  made  no  difference, 
but  evidence  was  admissible  to  show  who  was  the  real  contracting 
party  ;  contending  that,  from  the  evidence  of  the  facts  and  the  custom, 
the  invoice  had  the  same  effect  as  if  it  had  stated  that  the  plaintiff 
bought  of  the  defendants  for  Coupland  and  Duncan,  pa3ment  to  be 
made  to  the  defendants. 

There  is  no  doubt  that  evidence  is  admissible,  on  behalf  of  one  of 
the  contracting  parties,  to  show  that  the  other  was  agent  only,  though 
contracting  in  his  own  name,  and  so  to  fix  the  real  principal ;  but  it  is 
clear  that,  if  the  agent  contracts  in  such  a  form  as  to  make  himself 
personally  responsible,  he  cannot  afterwards,  whether  his  principal 
were  or  were  not  known  at  the  time  of  the  contract,  relieve  himself 
from  that  responsibility.  In  this  case  there  is  no  contract  signed  by 
the  sellers,  so  as  to  satisfy  the  Statute  of  Frauds,  until  the  invoice,  by 
which  the  defendants  represent  themselves  to  be  the  sellers :  and  we 
think  that  they  are  conclusi\'ely  bound  by  that  representation.  Their 
object  in  so  representing  was,  as  appeared  by  the  evidence  of  custom, 
to  secure  the  passing  of  the  money  through  their  hands,  and  to  prevent 
its  being  paid  to  their  principals ;  but  in  so  doing  they  have  made 
themselves  responsible  ;  and  we  think  it  impossible  to  read  the  invoice 
in  the  sense  proposed.  Jiule  refused.^ 


HIGGINS  V.   SENIOR. 
Exchequer.     1841. 

[8  M.  &  W.  834.] 

Special  assumpsit,  to  recover  compensation  for  the  non-delivery  of 
certain  quantities  of  iron,  pursuant  to  agreement,  whereby  the  defendant 
agreed  to  sell  to  the  plaintiffs,  and  the  plaintiffs,  at  the  request  of  the 
defendant,  then  agi-eed  to  buy  of  and  from  the  defendant  a  certain 
large  quantit}'  of  iron,  to  wit,  &c. 

Pleas,  first,  that  the  defendant  did  not  promise  modo  et  formd ; 
secondly,  that  the  plaintiffs  did  not  agree  or  promise  ryiodo  et  formd. 
Issue  thereon. 

At  the  trial  before  Rolfe,  B.,  at  the  last  Liverpool  Assizes,  it 
appeared  that  the  plaintiffs  were  iron  merchants  at  Liverpool,  and 
the  defendant  was  also  an  iron  merchant  and  iron  commission  agent, 
trading  there  in  the  name  of  John  Senior  &  Co.  On  the  20th  of  July, 
1840,  a  person  of  the  name  of  Mead,  who  was  employed  by  the  plaintiffs 
to  purchase  iron,  applied  to  William  Senior,  a  brother  of  the  defendant 

1  Compare  Holding  v.  Elliott,  5  H.  &  N.  117  (I860).  — Ed. 


SECT.  I.]  HIGGINS   V.    SENIOE.  555 

(and  who  was  then  acting  for  him  in  his  absence  from  home),  to  know  if 
he  sold  for  the  Varteg  Iron  Company,  and  on  being  answered  in  the 
affirmative,  Mead  said  he  had  a  large  order  for  a  good  house  ;  but 
William  Senior  then  declined  to  enter  into  any  contract  with  him. 
On  the  following  day,  however,  the  21st  of  July,  on  being  again 
pressed  bj'  Mead,  he  took  the  order,  and  Mead  went  to  his  office,  and 
in  a  short  time  returned  to  William  Senior  at  the  defendant's  office, 
and  delivered  to  him  the  following  bought  note  :  — 

"  Liverpool,  21st  July,  1840. 
"Bought  of  the  Varteg  Iron  Company,  per  John  Senior  &  Co. 
"  One  thousand  tons  of  good  merchantable  bar  iron  of  common  sizes, 
of  flat,  square,  and  round,  at  £6  per  ton  —  free  on  board  at  Newport, 
less  five  per  cent  for  cash  pa3'ment,  on  receipt  of  invoice  and  bill  of 
lading,  for  eveiy  parcel  of  one  hundred  tons  or  upwards. 

"Two  hundred  to  be  delivered  b\-  the  20th  August,  four  hundred 
tons  in  all  September,  and  the  remaining  four  hundred  tons  by  the 
14th  October,  and  the  whole  to  be  shipped  at  the  lowest  rate  of  freight 
offering,  except  in  any  case  where  a  ship  is  sent  expressly  for  a  cargo. 

"  Samuel  Mead, 
for  Messrs.  V.  Higgins  &  Sons, 
Iron  Merchants,  Liverpool." 

William  Senior  wrote  and  delivered  to  Mead  the  following  sold 
note  :  — 

"  Liverpool,  21st  July,  1840. 
"Mr.  S.  Mead. 

"  We  have  this  day  sold,  through  you,  to  Messrs.  V.  Higgins  &  Sons, 
one  thousand  tons  of  Varteg,  or  other  merchantable  bar  iron  of  common 
sizes,  of  flat,  square,  and  round,  at  £6  per  ton,  free  on  board  at  New- 
port, less  five  per  cent  for  cash  pa^-ment,  on  receipt  of  invoice  and 
bill  of  lading  for  every  parcel  of  one  hundred  tons  or  upwards.  Five 
hundred  tons  to  be  delivered  b\'  the  20th  August,  four  hundred  tons  in 
all  September,  and  the  remaining  four  hundred  tons  by  the  14th  Octo- 
ber, and  the  whole  to  be  shipped  at  the  lowest  rate  of  freight  off'ering, 
except  in  an}-  case  where  a  ship  is  sent  expressly'  for  a  cargo. 

"  We  are,  «&:c., 

"John  Senior  &  Co. 
"  William  Senior. 
"  Mr.  Mead  excludes  the  Maesteg  iron.  —  W.  S." 

The  plaintiffs  put  in  evidence  the  sold  note  only,  contending  that 
that  was  the  contract  between  the  parties.  No  iron  ever  was  delivered, 
though  frequent  applications  were  made  to  the  defendant  to  deliver  it 
according  to  the  contract,  both  bv  letter  and  otherwise.  Mead  was 
called  as  a  witness  for  the  plaintiffs,  and  he  proved  that  there  had 
been  a  contract  made  out  for  Varteg  iron  on  the  company's  account, 
which  he  had  made  out,  but  that  William  Senior  gave  him  the  above 
sold  note  instead  :    and  that  William  Senior  said  he  was  not  sure  that 


556  HIGGINS   V,   SENIOR.  [CHAP.  IV. 

he  could  deliver  the  whole  in  Varteg  iron,  but  would  take  the  order  to 
deliver  any  other  irou  as  good.  He  also  proved  that  it  was  a  common 
cccui-rence  for  contracts  to  be  exchanged,  and  that  William  Senior  said 
the  one  he  gave  would  accord  more  with  his  brother's  views.  The 
following  letters  from  the  plaintitts  to  tlie  defendant  were  given  in 
evidence  by  machine  copies,  a  notice  for  the  production  of  them  having 
been  proved :  — 

"July  29th,  1840. 

"  Annexed  we  hand  you  specifications  for  part  of  our  contract,  made 
by  Mr.  S.  Mead  on  our  account,  which  we  wish  consigned  to  tlie  King's 
Dock  here,  freight  not  to  exceed  7s.  per  ton  in  full." 

"3rd  August,  1840. 

"  As  a  portion  of  our  contract  with  you  is  to  be  delivered  on  or  before 
the  20th  instant,  we  have  particularly  to  request  that  the  above  specifica- 
tions have  the  precedence  ;  as  they  are  required  for  immediate  shipment, 
let  them  be  quite  separate  and  marked  with  white  paint  as  above  ;  and  be 
pleased  to  instruct  the  captain  to  call  upon  us  previous  to  coming  into 
dock,  as  he  will  have  to  go  alongside  a  vessel :  the  iron  to  be  in  clean 
blue  condition." 

"  1.3th  Aug.  1840. 

"  Annexed  we  hand  you  two  specifications  as  part  of  our  contract  of 
the  21st  of  July,  1840,  and  we  shall  feel  obhged  by  j'our  having  them 
immediately  shipped  at  a  low  freight,  so  as  to  be  here  if  possible  within 
three  weeks  from  this  date. 

"  Please  to  inform  us  whether  your  friends  can  complete  the  specifica- 
tions within  the  above  time." 

"20th  August,  1840. 

"  According  to  the  terms  of  our  contract  with  you,  you  are  bound  to 
deliver,  on  or  before  this  day  to  our  order  in  Newport,  200  tons  of  iron, 
which  we  hope  has  been  attended  to,  although  from  our  not  having 
received  any  advice,  we  fear  the  contrary ;  we  therefore  deem  it  neces- 
sary to  inform  you,  should  the  terms  of  the  contract  not  be  adhered  to, 
we  shall  hold  you  responsible  for  any  loss  that  we  may  incur  thereby." 

No  answer  was  returned  to  any  of  the  above  letters. 

At  the  end  of  the  plaintiffs  case,  Cresswell.  for  the  defendant,  sub- 
mitted that  the  plaintiffs  were  bound  to  put  in  the  document  signed  by 
Mead  ;  that  the  plaintiff's  promise  was  proved  to  be  in  writing,  and 
must  be  put  in.  It  was  answered  for  the  plaintiffs,  that  the  paper  was 
signed  by  the  defendant's  brother,  and  which  had  been  substituted  for 
the  other  at  his  request,  was  the  only  contract.  On  the  part  of  the 
defendant,  William  Senior  was  called,  who  proved  the  making  of  the 
contract,  as  above  stated,  with  Mead  ;  that  afterwards  Mead  brought 
the  bought  note  to  him,  and  that  he,  William  Senior,  wrote  the  sold 
note,  and  they  exchanged  the  "one  for  the  other. 

The  learned  judge,  in  summing  up  the  case  to  the  jury,  said  that  if 
the  writing  signed  by  William  Senior  was  the  contract,  the  defendant, 


SECT.  I.]  HIGGINS   V.    SENIOR.  557 

in  point  of  law,  was  liable,  whether  he  intended  to  act  for  himself  or 
the  company  ;  that  the  defendant  was  notoriously  an  agent,  but  still 
if  he  chose  to  sign  a  contract  in  his  own  name,  he  was  responsible  ; 
that  if  he  had  acted  as  agent,  not  having  authority  to  make  the  contract, 
he  was  liable  for  so  acting  ;  and  that  he  was  responsible  whether  the 
part}'  knew  he  so  acted  or  not ;  that  knowledge  made  no  difference. 
And  he  left  it  as  a  question  to  the  jury,  whether  this  (viz.  the  sold  note) 
was  the  contract  b}-  which  the  parties  intended  to  be  bound,  or  whether 
the  two  papers  constituted  the  contract.  If  the  latter,  the  plaintiffs 
were  not  entitled  to  recover,  but  if  the  former,  the}'  were.  The  jury 
found  for  the  plaintiffs,  with  £1500  damages,  leave  being  reserved  to 
the  defendant  to  move  to  enter  a  nonsuit.  Cressicell,  in  Easter  Term 
last,  obtained  a  rule  accordingl}',  either  for  a  nonsuit  or  a  new  trial. 

Dundas  and  Creighton  showed  cause. 

Cressu'ell,  J.  Henderson^  and  R.  Denmnn^  in  support  of  the  rule. 

Parke,  B.  The  question  in  this  case,  which  was  argued  before  us* 
in  the  course  of  the  last  term,  may  be  stated  to  be,  whether  in  an  action 
on  an  agreement  in  writing,  purporting  on  the  face  of  it  to  be  made  by 
the  defendant,  and  subscribed  by  him,  for  the  sale  and  deliver}'  by  him 
of  goods  above  the  value  of  £10,  it  is  competent  for  the  defendant  to 
discharge  himself,  on  an  issue  on  the  plea  of  non  assumpsit^  by  proving 
that  the  agreement  was  really  made  by  him  b}'  the  authority  of  and  as 
agent  for  a  third  person,  and  that  the  plaintiff  knew  those  facts,  at  the 
time  when  the  agreement  was  made  and  signed.  Upon  consideration,  we 
think  that  it  was  not ;  and  tliat  the  rule  for  new  trial  must  be  discharged. 

There  is  no  doubt,  that  where  such  an  agreement  is  made,  it  is  com- 
petent to  show  that  one  or  both  of  the  contracting  parties  were  agents 
for  other  persons,  and  acted  as  such  agents  in  making  the  contract,  so 
as  to  give  the  benefit  of  the  contract  on  the  one  hand  to,^  and  charge 
with  liability  on  the  other, ^  the  unnamed  principals :  and  this,  whether 
the  agreement  be  or  be  not  required  to  be  in  writing  b}'  the  Statute  of 
Frauds  :  and  this  evidence  in  no  wa}'  contradicts  the  written  agree- 
ment. It  does  not  denj'  that  it  is  binding  on  those  whom,  on  the  face 
of  it,  it  purports  to  bind  ;  but  shows  that  it  also  binds  another,  by 
reason  that  the  act  of  the  agent,  in  signing  the  agreement,  in  pursuance 
of  his  authority,  is  in  law  the  act  of  the  principal. 

But,  on  the  other  hand,  to  allow  evidence  to  be  given  that  the  party 
who  appears  on  the  face  of  the  instrument  to  be  personalh'  a  contracting 
party,  is  not  such,  would  be  to  allow  parol  evidence  to  contradict  the 
written  agreement,  which  cannot  be  done.  And  this  view  of  the  law 
accords  with  the  decisions,  not  merely  as  to  bills  of  exchange'*  signed 
by  a  person,  without  stating  his  agenc}-  on  the  face  of  the  bill ;  but  as 

1  Parke,  Aldersox,  GnRNEY,  and  Rolfe,  BB.  —  Rep. 

2  Garrett  v.  Handley,  4  B.  &  Or.  664 ;  Bateman  v.  Phillips,  15  East,  272.  — Rep. 
•  Paterson  v.  Gandasequi,  15  East,  62. —  Rep. 

<  Sowerby  i;.  Butcher,  2  C.  &  M.  .371 ;  4  Tyr.  320;  Lefevre  ;;.  Lloyd,  5  Taunt.  749  J 

1  Marsh.  318. —  Rep. 


558  HIGGINS   V.   SENIOR.  [CHAP.  IV, 

to  other  written  contracts,  namely,  the  cases  of  Jones  v.  Littledale,  6 
Ad.  &  Ell.  486  ;  1  Nev.  &  P.  677,  and  Magee  v.  Atkinson,  2  M.  &  W. 
440.  It  is  true  that  the  case  of  Jones  v.  Littledale  might  be  supported 
on  the  ground  that  the  agent  really  intended  to  contract  as  principal : 
but  Lord  Denman,  in  delivering  the  judgment  of  the  Court,  lays  down 
this  as  a  general  proposition,  "  that  if  the  agent  contracts  in  such  a 
form  as  to  make  himself  personally  responsible,  he  cannot  afterwards, 
whether  his  principal  were  or  were  not  known  at  the  time  of  the  con- 
tract, relieve  himself  from  that  responsibility."  And  this  is  also  laid 
down  in  Story  on  Agency,  sect.  269.  Magee  v.  Atkinson  is  a  direct 
authority,  and  cannot  be  distinguished  from  this  case. 

The  case  of  Wilson  v.  Hart,  7  Taunt.  295  ;  1  Moore,  45,  which  was 
cited  on  the  other  side,  is  clearly  distinguishable.  The  contract  in 
writing  was,  on  the  face  of  it,  with  another  person  named  Read,  appear- 
ing to  be  the  principal  buyer ;  but  there  being  evidence  that  the 
defendant  fraudulently  put  forward  Read  as  the  buyer,  whom  he  knew 
to  be  insolvent,  in  order  to  pa3'  a  debt  from  Read  to  himself  with  the 
goods  purchased,  and  having  subsequently'  got  possession  of  them, 
it  was  held,  on  the  principle  of  Hill  v.  Perrott,  3  Taunt.  274,  and  other 
cases,  that  the  defendant  was  liable  ;  and  as  is  observed  by  Mr.  Smith, 
in  the  very  able  work  to  which  we  were  referred  (Leading  Cases,  vol.  ii. 
p.  125),  that  decision  turned  altogether  upon  the  fraud,  and  if  it  had 
not,  it  would  have  been  an  authority  for  the  admission  of  parol  evidence 
to  charge  the  defendant,  not  to  discharge  Read. 

Rule  discharged} 

1  Compare  Wake  v.  Harrop,  1  H.  &  C.  202  (Ex.  Ch.  1862). 

In  Fisher  v.  Marsh,  6  B.  &  S.  411,  416  (1865),  Blackburn,  J.,  said:  — 

"  The  general  rule  is,  that  when  an  agent  makes  a  contract,  naming  his  principal, 
the  contract  is  made  with  the  principal,  and  not  witli  the  agent.  But  even  where  the 
principal  is  known,  a  contract  in  writing  may  be  made  by  an  agent  with  a  third  person, 
in  such  terms  that  he  is  personally  bound  to  the  fulfilment  of  it ;  as  if  he  says,  '  I  for 
my  own  self  contract,'  in  such  a  ease  there  is  a  personal  contract  by  the  agent,  and  he 
may  sue  or  be  sued  on  it,  although  the  principal  may  interfere  and  claim  tlie  benefit 
of  it,  as  was  decided  in  Higgius  v.  Senior.  ...  In  the  present  case  the  plaintiff  on 
putting  up  this  land  for  hire  in  effect  said,  '  I  let  the  land,  and  I  undertake  upon  the 
price  being  paid  to  me  that  the  person  taking  the  land  shall  have  the  enjoyment  of  it.' 
Then  the  defendant  having  bid  for  it,  and  being  the  highest  bidder,  there  is  a  clear 
contract  by  the  defendant  to  become  tenant.  The  terms  of  the  contract  were  not 
reduced  to  writing ;  but  does  the  fact  of  the  plaintiff  being  auctioneer  prevent  the 
contract  being  with  him  ?     If  not,  there  was  evidence  to  go  to  the  jury." 

In  Cream  City  Glass  Co.  v.  Friedlander,  84  Wis.  53,  57-58  (1893),  Winslow,  J., 
delivering  the  opinion  of  the  Court,  said  :  — 

"  The  defendant  claimed  that  he  only  acted  as  a  broker  between  the  plaintiff  and  the 
Liverpool  firm  for  the  sale  of  the  soda  ash  in  question,  and  upon  the  trial  offered  much 
testimony,  consisting  of  letters  and  telegrams  which  passed  between  himself  and  the 
plaintiff,  and  which  led  up  to  and  finally  culminated  in  the  written  contract  of  sale.  .  .  . 
This  testimony  was  offered  for  the  purpose  of  showing  that  defendant  acted  simply 
as  a  broker,  and  that  the  contract  should  be  construed  simply  as  a  broker's  sold  note. 
This  testimony  was  all  rejected  by  the  trial  court,  upon  the  ground  that  it  tended  to 
vary  and  contradict  the  terms  of  a  written  contract.  This  ruling  was  strictly  right. 
The  contract  which  defendant  executed,  and  under  which  the  goods  were  delivered. 


SECT.  I.J  BRAY    V.   KETTELL.  559 

BRAY   V,    KETTELL   and   another. 
SuPREMK  Judicial  Court  of  Massachusetts.     1861. 

[1  Alltn,  80.] 

Contract,  brought  by  the  master  of  the  schooner  Moro^  on  a  charter- 
party  executed  in  the  city  of  New  York,  and  signed  on  the  part  of  the 
charterers  as  follows  :  — 

"  We  agree  to  the  above  and  will  furnish  cargo  and  pay  freight 
accordingl}',  and  hereby  bind  ourselves  as  above. 

"  Albert  Freestone  Quarries,  by  Kettell,  CoUins,  &  Co.,  Agents. 

"  Per  A.  W.  Bowman,  Att'y." 

The  defendants,  Kettell,  Collins,  &  Co.,  admitted  the  authority  of 
Bowman  to  sign  their  names  to  the  charter-party  as  agents.  At  the 
trial  in  this  court,  it  was  proved  or  admitted  that  there  was  not,  at  the 
time  when  the  charter-part}'  was  executed,  any  corporation  or  company 
having  the  name  of  "  Albert  Freestone  Quarries."  But  it  was  also 
proved  or  admitted  that  Christopher  D.  Archibald,  of  London,  a 
British  subject,  was  then  the  proprietor  of  certain  quarries  in  the 
province  of  New  Brunswick,  styled  "Albert,"  and  that  he  was  in  the 
habit  of  using  the  name  "Albert  Freestone  Quarries  "  in  transacting 
business  respecting  his  quarries  ;  and  that  about  a  3'ear  afterwards  a 
corporation  b}'  that  name  was  established  in  New  Brunswick.  A  paper 
by  which  said  Archibald  appointed  the  defendants  his  agents,  dated 
August  9,  1856,  was  introduced  in  evidence;  but  it  did  not  appear 
that  the  plaintiff  knew  of  this  paper,  or  knew  that  Archibald  was  the 
part}'  intended  by  the  words  "  Albert  Freestone  Quarries." 

A  breach  of  the  contract  contained  in  the  charter-party  having  been 
proved,  Metcalf,  J.,  ruled,  for  the  purpose  of  ascertaining  the  dam- 
ages, that  the  plaintiff  was  entitled  to  maintain  this  action  ;  and  a 
verdict  was  taken  by  consent  for  the  plaintiff,  subject  to  the  opinion 
of  the  whole  court,  upon  the  question  of  the  defendants'  liability  upon 
the  facts  above  reported. 

W.  Brighain,  for  the  defendants. 

8.  II.  PhUlips,  for  the  plaintiff. 

BiGELOW,  C.  J.  The  plaintifT  does  not  controvert  the  general  rule 
of  law,  that  an  agent  is  not  personally  responsible  upon  an  instrument 
executed  in  the  name  of  his  principal.  But  he  rests  his  claim  against 
the  defendants  upon  the   ground  that  the  present  case  falls  within  a 

was  a  plain  and  unambia:uous  contract  of  sale,  and  upon  familiar  rules  previous  nego 
tiation.s  could  not  change  its  legal  effect.  There  was  nothing  to  prevent  the  defendant 
from  making  a  contract  binding  himself  personally  if  he  chose  to  do  so,  notwithstanding 
his  ordinary  business  may  have  been  simply  that  of  a  broker,  and  notwithstanding  also 
the  fact  that  he  may  have  preliminarily  negotiated  in  the  capacity  of  a  broker  in  this 
very  transaction.  Having  made  such  a  contract,  he  cannot  now  relieve  himself  from 
responsibility  thereunder  by  showing  that  he  was  acting  simply  as  agent  or  broker  for 
a  principal,  whether  such  principal  was  disclosed  or  undisclosed."  —  Ed. 


560  BRAY   V.    KETTELL.  [CHAP.  IV. 

recognized  exception  to  the  rule,  because  the  defendants  acted  in  mak- 
ing the  contract,  in   behalf  of  a  foreign  principal,  resident  "  beyond 
seas."     It  is  certainly  true  that  soine  of  the  earlier  English  cases  seem 
to  sanction  the  doctrine,  that  where  an  agent  acts  for  a  foreign  princi- 
pal, the  presumption  is  that  credit  is  given  exclusively  to  the  agent, 
and  he  only  is  liable  on  contracts  entered  into  in  the  name  and  on  behalf 
of  his  principal.     Gonzales  r.  Sladen,  Bui.  N.  P.  130  ;  De  Gaillon  v. 
L'Aigle,  1  B.  &  P.  368  ;  Thomson  v.  Davenport,  9  B.  &  C.  87  ;  Smyth 
V.  Anderson,  7  C.   B.  21.     The  same  doctrine  is  stated  in  Palej-  on 
Agency  (4  Amer.  ed.),  248,  2  Livermore  on  Agency,  249,  and  espe- 
cially in  Story  on  Agency,  §§  268,  290,  where  it  is  enunciated  as  a 
general  rule  that  agents  acting  for  merchants  residing  in  a  foreign 
country  are  held  personally  liable  on  all  contracts  made  by  them  for 
their  employers,  and  this  without  any  distinction  whether  thej-  describe 
themselves  in  the  contract  as  agents  or  not.     We  are  inclined  to  think 
that  a  careful  examination  of  the  cases  which  are  cited  in  support  of 
this  supposed  rule  will  show  that  this  statement  is  altogether  too  broad 
and  comprehensive.     Certain  it  is,  that  if  it  ever  was  received  as  a 
correct  exposition  of  the  law,  it  has  been  essentially  modified  by  the 
more  recently  adjudged  cases.     It  doubtless  had  its  origin  in  a  custom 
or  usage  of  trade  existing  in  England,  by  which  the  domestic  factor  or 
agent  was  deemed  to  be  the  contracting  party  to  whom  credit  was  ex- 
clusively given  ;  and  it  was  confined  to  cases  where  the  claim  against 
the  agent  was  for  goods  sold,  and  was  not  extended  to  written  instru- 
ments.    But  it  is  going  quite  too  far  to  say  that  this  usage  or  custom 
is  so  ingrafted  into  the  common  law  as  to  become  a  fixed  and  estab- 
lished rule,  creating  a  presumption  in  all  cases  that  the  agent  is  ex- 
clusively liable,  to  the  entire  exoneration  of  his  employer.     The  more 
reasonable   and    correct   doctrine  is  that  when    goods   are  sold  to  a 
domestic  agent  or  a  contract  is  made  by  him,  the  fact  that  he  acts  for 
a  foreign  principal  is  evidence  only  that  the  agent  and  not  the  princi- 
pal is  liable.     It  is  in  reality,  in  all  cases,  a  question  to  whom  the 
credit  was  in  fact  given.     Where  goods  are  sold,  it  is  certainly  reason- 
able to  suppose  that  the  vendor  trusted  to  the  credit  of  a  person  re- 
siding in  the  same  country  with  himself,  subject  to  laws  with  which  he 
is  familiar,  and  to  process  for  the  immediate  enforcement  of  a  debt, 
rather  than  to  a  principal  residing  abroad,  under  a  different  system  of 
laws,  and  beyond  the  jurisdiction  of  the  domestic  forum.     But  even  in 
such  a  case,  the  fact  that  the  principal  is  resident  in  a  foreign  country 
is  only  one  circumstance  entering  into  the  question  of  credit  and  is 
liable  to  be  controlled  by  other  facts.     So  in  the  case  of  a  written  con- 
tract ;  it  depends  on  the  intention  of  the  parties.     But  this,  as  in  all 
other  cases  of  written  instruments,  must  be  determined  mainly  by  the 
terms  of  the  contract.     There  may  be  cases  where  the  language  of  the 
contract  is  ambiguous,  and  it  is  doubtful  to  whom  the  parties  intended 
to  give  credit,  in  which  the  circumstance  that  the  principal  is  resident 
abroad  may  be  taken  into  consideration  in  determining  the  question  of 


8ECT.  I.]  FAIRLIE   V.   FENTON.  561 

the  liability  of  tlie  agent.  But  where  the  terms  of  the  contract  are 
clear  and  unambiguous,  it  must  be  deemed  the  final  repository  of  the 
intention  of  the  parties  ;  and  its  construction  and  legal  effect  cannot  be 
varied  or  changed  by  any  reference  to  facts  or  circumstances  affecting 
the  convenience  of  the  parties  or  the  reasonableness  of  the  contract 
into  which  they  have  entered.  In  such  a  case,  therefore,  it  makes  no 
difference  whether  the  principal  is  a  foreigner  or  not.  If  by  the  lan- 
guage of  the  contract  the  agent  and  not  the  principal  is  bound,  such 
must  be  its  construction  ;  and,  on  the  other  hand,  if  it  clearly  binds 
the  principal,  and  is  in  form  a  contract  with  him  only,  the  agent  must 
be  exonerated,  without  regard  to  the  fact  that  the  principal  is  resident 
in  a  foreign  country.  This  rule  can  work  no  hardship,  because  parties 
can  in  all  cases  make  their  contracts  in  such  form  as  to  bind  those  to 
whom  they  intended  to  give  credit.  Mahony  v.  Kekule,  14  C.  B.  390 
Green  v.  Kopke,  18  C.  B.  549  ;  Lennard  v.  Robinson,  5  El.  &  Bl.  125 
Kirkpatrick  v.  Stainer,  22  Wend.  244  ;  2  Kent  Com.  (Gth  ed.)  631,  note 
Paley  on  Agenc}',  (4th  Au)er.  ed.)  248,  note. 

These  principles  are  decisive  of  the  case  at  bar.  The  written  con- 
tract on  which  the  plaintiff  relies  contains  no  words  from  which  any 
intent  to  bind  the  defendants  can  be  inferred.  On  the  contrar}',  it  is 
executed  in  the  precise  form  required  hy  law  to  bind  the  principal  only 
and  to  exonerate  the  agent.  The  name  under  which  the  principal  con- 
ducted his  business  is  signed  b}-  the  defendants  as  his  agents.  It  would 
have  been  open  to  more  question  if  the  defendants  had  signed  their 
own  names  for  their  principal ;  but  the  contract  is  executed  by  the 
agents  in  the  precise  and  technical  form  in  which,  hy  the  strictest  rule 
of  law,  it  should  be  signed  in  order  to  bind  the  principal  only.  Story 
on  Agency,  §  153.  There  can  be  no  doubt  that  if  the  principal  resided 
in  this  country,  he  alone  could  have  been  sued  on  the  contract.  In 
like  manner  he  onlj*  is  responsible,  although  a  foreigner,  because  he  is 
the  sole  party  to  it,  and  there  is  nothing  to  control  the  intent  mani- 
fested b}'  this  mode  of  executing  the  contract.  The  defendants  are  in 
no  sense  parties  to'  it,  and  are  not  liable  in  this  action  for  damages 
occasioned  by  the  neglect  of  their  principal  to  complj-  with  its  terms. 
Verdict  set  aside;  judgment  for  the  defendants. 


FAIRLIE  V.   FENTON. 
Exchequer.     1870. 

[L.  R.  5  Ex.  169.] 

Action  for  the  non-acceptance  of  cotton,  tried  before  Kellt,  C.  B., 

at  Guildhall,  on  the  10th  of  December,  1869. 

The  contract  sued  on  was  one  made  by  bought  and  sold  notes,  signed 
by  the  plaintiff,  a  broker  in  the  city  of  London.     The  bought  note  was 

3« 


562  FAIRLIE   V.   FENTON.  [CHAP,  IV. 

in  the  following  words:  "  London,  Aug.  20,  1869.  —  Messrs.  J.  &  R. 
Fenton,  per  Messrs.  Ronaldson  and  Stringer.  I  have  this  day  sokl  30U 
on  account  of  Mr.  lllins  A.  Tinimins,  of  Manchester,  to  arrive  in  Liver- 
pool per  Evelyn,  from  Bombay,  on  the  terms  of  the  printed  rules  of 
the  Cotton  Brokers'  Association  of  Liverpool,  as  indorsed,  100  bales 
Omrawattie  cotton,  on  the  basis  of  IQ'ld.  per  lb.  for  fair.  No  allow- 
ance to  sellers,  but  in  case  of  inferioiity  of  quality  the  cotton  to  be 
taken  by  the  buyers  at  an  allowance  to  be  settled  by  arbitration  in  the 
usual  manner.  To  be  taken  from  the  warehouse.  Any  sliglit  varia- 
tion in  marks  not  to  vitiate  the  contract.  Brokerage,  per  cent. 
(Signed)  Evelyn  Fairlie,  broker." 

The  plaintiff  obtained  a  verdict  for  £1,748,  leave  being  reserved  to 
the  defendants  to  move  to  enter  a  nonsuit,  on  the  ground  that  the 
plaintiff  only  made  the  contract  as  broker,  and  was  himself  no  party  to 
it.     A  rule  having  been  obtained  accordingly', 

Pollock,  Q.  C,  and  Barnard,  showed  cause.  The  plaintiff  was  him- 
self a  contracting  part}'.  There  is  nothing  in  the  fact  that  a  man  is 
acting  as  agent  to  prevent  him  from  contracting  in  his  own  name,  and 
the  use  of  the  words  '"I  have,"  shows  that  he  was  here  doing  so: 
Sargent  v.  Morris,  3  B.  &  A.  277,  per  Bayley,  J.,  at  p.  280  ;  Parker  v. 
Winlow,.  7  E.  &  B.  942  ;  Tanner  v.  Christian,  4  E.  &  B.  591  ;  Lennard 
V.  Robinson,  5  E.  &  B.  125  ;  Mahony  v.  Kekule,  14  C.  B.  390.  More- 
over, as  a  rule,  a  broker,  like  an  auctioneer,  can  sue  in  his  own  name 
upon  contracts  made  by  him  for  his  principal :  Williams  v.  Millington, 
1  H.  Bl.  81  ;  Chitty  on  Pleading,  7th  ed.  vol.  i.  p.  8. 

[Martin,  B.,  referred  to  Lush's  Practice,  vol.  i.  p.  11  (3d  ed.).] 

Br  oxen,  Q.  C  and  Mellor,  in  support  of  the  rule.  The  case  of  an 
auctioneer  is  wholly  distinct  from  that  of  a  broker.  His  right  to  sue, 
like  that  of  a  factor,  rests  upon  his  interest  in  the  contract,  and  his 
lien  on  the  goods  and  on  their  price.  This  is  clearly  shown  in  Williams 
V.  Millington,  supra ;  Robinson  v.  Rutter,  4  E.  &  B.  954  ;  and  Fishery. 
Marsh,  6  B.  &  S.  411  ;  which  are  all  expressly  based  upon  that  ground. 
But  a  broker  has  no  possession  of  the  goods,  and  no  lien  on  them  or 
on  the  price,  and  has  no  right  to  sell  in  his  own  name  or  to  receive 
payment.  The  case  is  therefore  left  to  the  general  principle  laid  down 
by  Blackburn,  J.,  in  Fisher  v.  Marsh,  6  B.  &  S.  at  p.  416  ;  that  where 
the  principal's  name  is  disclosed  in  a  contract  made  by  the  agent,  the 
principal  only  can  sue,  unless  the  agent,  by  distinct  words,  makes  the 
contract  his  own.  Here,  on  the  contrary,  the  plaintiff  both  names  his 
principal  and  signs  as  broker,  the  inference  from  which  is  that  he 
acted  merely  as  agent.  The  case  is  directl}'  within  the  authority  of 
Bramwell  v.  Spiller,  21  L.  T.  (N.  S.)  672  ;  and  the  only  words  in  the 
contract  which  appear  to  lead  to  an  opposite  conclusion,  "I  have 
sold,  &c.,"  are  shown  by  Fawkes  v.  Lamb,  31  L.  J.  (Q.  B.)  98,  not  to 
have  an}'  such  operation. 

Kelly,  C.  B.  The  numerous  cases  cited  to  us  show  that  in  certain 
contracts  the  agent  may  himsielf  sue  as  principal ;  but  in  none  does  it 


SECT.  I.]  FAIRLIE   V.   FENTON.  563 

appear  that  a  broker  has  successfully  maintained  an  action  on  a  con- 
tract made  by  him  as  broker.  He  may,  no  doubt,  frame  a  contract 
in  such  a  way  as  to  make  himself  a  party  to  it  and  entitled  to  sue,  but 
when  he  contracts  in  the  ordinary  form,  describing  and  signing  himself 
as  a  broker,  and  naming  his  principal,  no  action  is  maintainable  bj' 
him.  Though  innumerable  contracts  of  this  nature  dail}'  take  place, 
yet  no  instance  has  occurred  within  my  own  recollection,  nor  has  any 
instance  been  cited  to  us,  where  an  action  has  been  brought  by  a 
broker  describing  himself  as  such  in  the  contract,  and  not  using  words 
which  expressly  or  by  necessary  implication  make  him  the  contracting 
party.  Without  further  arguing  the  point,  it  is  enough  to  refer  to  this 
unbroken  rule  as  the  settled  law  upon  the  subject. 

Martin,  B.  I  am  of  the  same  opinion,  though  I  had  certainly  been 
under  the  impression  that  a  broker  could  sue  in  his  own  name.  I  find 
that  it  is  so  laid  down  in  Chitty  on  Pleading,  vol.  i.  p.  8.  It  was  also 
so  stated  in  Hammond  on  Parties,  an  extremely  able  work,  from  which 
the  statement  was  probably  adopted  b}'  Mr.  Justice  Lush  into  his  very 
valuable  book  of  Practice  (Lush's  Practice,  3d  ed.  p.  11).  My  opin- 
ion was  probabl}'  founded  on  those  authorities,  and  on  a  general  notion 
that  a  broker  had  an  interest  in  the  contract  which  entitled  him  to 
maintain  an  action.  But  that  can  only  be  where  be  has  such  an 
interest  in  fact ;  and  I  am  entirel}'  satisfled,  even  without  authority, 
that  when  he  states  on  the  face  of  the  contract  that  he  is  acting  as 
broker,  that  is,  as  a  middleman  between  the  two  parties,  he  has  no 
interest,  and  cannot  sue.  If  he  could  sue,  he  could  also  be  sued  ;  and 
it  is  obvious  on  the  face  of  the  contract  that  he  does  not  contract  to 
deliver  the  goods  sold,  but  onl}-  that  he  has  authorit}'  to  enter  into  the 
contract  on  behalf  of  the  principal  he  names.  The  words  "  I  have," 
are  of  no  importance  to  show  him  a  contracting  part}'. 

PiGOTT,  B.  I  am  of  the  same  opinion.  On  the  plain  construction  of 
the  contract  the  plaintiff  is  no  party  to  it ;  but  only  signs,  as  broker, 
bought  and  sold  notes  for  the  respective  parties.  Baring  v.  Corrie, 
2  B.  &  A.  137,  shows  the  difference  between  the  position  of  a  broker 
and  a  factor,  and  that  the  broker  has  no  right  to  sell  in  his  own  name  ; 
in  the  present  case,  I  do  not  think  that  he  has,  in  fact,  done  so. 

Cleasby,  B.  I  am  of  the  same  opinion.  There  is  no  doubt  a 
broker  cannot  sue  ;  he  has  no  authoi'ity  to  sell  in  his  own  name,  or  to 
receive  the  money,  and  has  nothing  to  do  with  the  goods.  This  is  so 
laid  down  in  Story  on  Agency,  sees.  28-34,  109:  "To  use  the  brief 
but  expressive  language  of  an  eminent  judge,  '  a  broker  is  one  who 
makes  a  bargain  for  another,  and  receives  a  commission  for  so  doing.' 
Properly  speaking,  a  broker  is  a  mere  negotiator  between  the  other 
parties,  and  he  never  acts  in  this  own  name,  but  in  the  names  of  those 
who  employ  him.  When  he  is  employed  to  buy  or  to  sell  goods,  he  is 
not  intrusted  with  the  custody  or  possession  of  them,  and  is  not  au- 
thorized to  buy  or  to  sell  them  in  his  own  name"  (sec.  28).  "So,  a 
broker  has  ordinarily  no  authoritj'  virtute  officii^  to  receive  payment 


564  CALDER  V.    DOBELL.  [CHAP.  IV. 

for  propert}'  sold  by  him"  (sec.  109).  The  distinction  between  a 
broker  and  an  auctioneer  has  been  already  pointed  out  in  argument. 
My  onl3'  doubt  has  been  whether  the  use  of  the  words  "  I  have,"  «&c,, 
ought  to  be  held  to  import  a.  personal  participation  in  the  contract,  the 
usual  course  being  departed  from  ;  but  my  opinion  is,  it  ouglit  not. 
The  form  is  also  in  some  other  respects  a  little  peculiar,  as  in  its  refer- 
ence to  the  rules  of  the  Cotton  Brokers'  Association  ;  but  it  has  not 
been  shown  that  those  rules  treat  the  broker  as  a  principal  in  the  trans- 
action.    The  rule  must,  therefore,  be  made  absolute. 

Eule  absolute} 


CALDER  AND  ANOTHER  V.   DOBELL. 

Common  Pleas  and  Exchequer  Chamber.     1871. 

[L.  R.  6  C.  P.  486.] 

Action  for  not  accepting  cotton  pursuant  to  contract.  The  cause 
was  tried  before  Brett,  J.,  at  the  last  assizes  at  Liverpool.  The  facts 
were  as  follows  :  — 

The  plaintiffs  were  cotton  brokers  in  Liverpool  trading  under  the 
name  of  Wright  &  Co.  The  defendant  was  a  merchant  there.  In 
January,  1870,  one  Cherry,  a  broker,  proposed  to  the  defendant  to  buy 
cotton  "  to  arrive."  The  defendant  consented  to  bu}'  100  bales,  but 
declined  to  allow  his  name  to  appear  in  the  transaction.  Cherr}'  there- 
upon offered  to  buy  of  the  plaintiffs  100  bales,  but  they  refused  to  trust 
him,  and  Cherr^',  being  pressed,  disclosed  the  name  of  the  defendant  as 
his  principal.  A  contract  was  then  entered  into  between  the  plaintiffs 
and  Cherry  for  the  sale  of  100  bales  at  a  given  price,  and  a  sold- 
note  was  sent  by  the  plaintiffs  to  Cherry,  —  "Mr.  P,  Cherry.  We 
have  this  day  sold  to  you  100  bales  cotton,"  &c.,  &c.,  and  a  bought-note 
was  sent  by  Cherry  to  the  plaintiffs,  — "I  have  this  day  bought  of  j'ou 
100  bales  cotton,"  &c.,  &c.  Cheny  at  the  same  time  sent  the  defendant 
an  advice-note,  as  follows:  "I  have  this  day  bought  for  3-ou  from 
Wright  &  Co.  100  bales  cotton,"  &c.  This  note  was  kept  by  the  de- 
fendant till  the  month  of  August.  An  invoice  was  sent  by  the  plain- 
tiffs to  Cherry  charging  him  as  the  buyer  of  the  cotton,  and  Cherry  was 
debited  for  it  in  the  plaintiffs'  books,  and,  after  the  arrival  of  the  cot- 
ton, he  was  repeatedly  applied  to  to  accept  and  pay  for  it,  both  by  the 
plaintiffs  and  by  their  attorneys ;  and,  faihng  to  obtain  payment  from 
him,  and  the  market  falling,  the  plaintiffs  sold  the  cotton  and  sued  the 
defendant  for  the  difference  between  the  price  at  which  the  cotton  was 
sold  and  the  market  price  at  the  time  of  the  breach. 

1  As  to  auctioneers,  see  Williams  v.  Millington,  1  H.  Bl.  81  (1788);  Robinson  K 
Rntter,  4  E.  &  B.  954  (1855) ;  Thompson  v.  Kelly,  101  Mass.  291  (1869) ;  Grice  v.  Ken- 
rick,  L.  R.  5  Q.  B.  340  (1870) ;  Woolfe  v.  Home,  2  Q.  B.  D.  355  (1877).  —  Ed. 


SECT.  I.]  CALDER   V.   DOBELL.  565 

The  learned  judge  left  the  following  questions  to  the  jur}' :  1.  Did 
the  defendant  authorize  Cherry  to  make  the  contract  for  him?  2.  Did 
Cherry  assume  to  make  the  contract  for  tbe  defendant,  and  did  the  de- 
fendant, knowing  this,  ratify  his  act?  3.  Did  the  plaintiffs,  knowing 
that  Cherry  was  acting  as  agent  for  the  defendant,  elect  to  contract 
with  Cherry  as  principal,  upon  the  terms  of  giving  credit  to  him  and 
him  alone? 

The  jury  answered  the  first  and  second  questions  in  the  affirmative, 
and  tlie  third  in  the  negative,  and  a  verdict  was  thereupon  entered  for 
the  plaintiffs  for  £530,  leave  being  reserved  to  the  defendant  to  move 
to  enter  a  verdict  for  him  or  a  nonsuit,  if,  assuming  the  facts  found  by 
the  jury  to  be  true,  the}'  could  not  properly-  be  given  in  evidence,  hav- 
ing regard  to  the  written  contract ;  or  if,  having  regard  to  the  wiiole 
evidence,  the  learned  judge  ought  to  have  directed  the  jury,  as  matter 
of  law,  to  find  for  the  defendant. 

Jan.  12.  Jlolker,  Q.  C.  f^Ihrf^didl  with  him)  moved  to  enter  a  ver- 
dict for  the  defendant,  or  a  nonsuit,  pursuant  to  the  leave  reserved,  or 
for  a  new  trial  on  the  grounds  of  misdirection,  and  that  tlie  verdict  was 
against  the  weight  of  evidence.  Dobell's  name  having  beeu  disclosed 
at  the  time,  it  was  not  competent  to  the  plaintiffs  to  say  the}'  contracted 
with  him,  and  not  with  Cherr}-.  Where  the  name  of  the  principal  is 
not  disclosed,  parol  evidence  is  admissible  to  show  that  there  was  a 
principal.  But,  where  the  principal  is  known  at  the  time,  and  the 
seller  chooses  to  contract  with  the  agent  in  his  own  name  onl}-,  to 
allow  the  seller  to  say  that  he  contracted  with  the  principal,  and  not 
with  the  agent,  would  be  to  admit  parol  evidence  to  contradict  the 
written  contract. 

[BoviLL,  C.  J.     Have  you  any  authorit}-  to  support  that  distinction?] 

There  is  no  distinct  authorit}-  upon  the  subject ;  but  it  is  submitted 
that  it  must  be  so  in  principle. 

[Montague  Smith,  J.  It  is  opposed  to  the  doctrine  of  Parke,  B., 
in  riiggins  ^'.  Senior,  8  M.  &  \y.  834.] 

[Brett,  J.  There  is  nothing  in  the  notes  to  Thomson  v.  Davenport, 
2  Sm.  L.  C.  6th  ed.  338,  to  warrant  it ;  and  the  reasoning  of  all  the 
cases  is  against  it.] 

The  insertion  of  the  agent's  name  in  the  contract,  the  principal  being 
known  at  tiie  time,  was  a  conclusive  election  on  the  sellers'  part  to  look 
to  the  agent  only  ;  and  the  learned  judge  ought  to  have  so  directed  the 
jury,  as  matter  of  law.^  .   .  . 

BoviLL,  C.  J.  The  jury  having  found  a  verdict  for  the  plaintiffs,  my 
Brother  Brett  reserved  leave  to  the  defendant  to  move  to  enter  a  non- 
suit or  a  verdict  for  him,  if,  assuming  the  facts  found  b}-  the  jury  to  be 
true,  they  could  not  properly  be  given  in  evidence,  having  regard  to 
the  written  contract ;  or  if,  having  regard  to  the  whole  evidence,  the 

^  Citing  Paterson  v.  Gandasequi,  ante,  p.  527  ;  Thomson  v.  Davenport,  ]>ost,  p.  637 ; 
Priestly  v.  Fernie,  post,  p,  698;  Smethurst  v.  Mitchell,  1  E.  &  E.  623;  Addison  oa 
Contracts,  6th  ed   605.  —  Ed. 


566  CALDER  V.    DOBELL.  [CHAP.  IV. 

jury  ougbt  to  have  been  directed,  as  matter  of  law,  to  find  for  the 
defendant. 

The  first  ground  upon  which  Mr.  Holker  has  moved  to  enter  a  ver- 
dict for  the  defendant  is  founded  on  the  first  part  of  the  leave.  For 
this  purpose  the  facts  found  must  be  taken  to  be  true  ;  and  the  ques- 
tion is  whether  parol  evidence  was  admissible  to  show  that  the  contract 
was  made  on  behalf  of  the  defendant  as  principal.  Now,  the  written 
contract  was  made  with  Cherry  in  his  own  name ;  and  it  is  contended 
that,  the  defendant's  name  having  been  disclosed  at  the  time,  the  de- 
fendant cannot  be  sued  ;  in  other  words,  that  parol  evidence  was  not 
admissible  to  show  that  the  defendant  was  the  real  principal.  It  has 
for  man}'  years  been  a  generally  received  impression  that,  where  a 
broker  makes  a  contract  for  an  undisclosed  principal,  the  latter  may 
6ue  upon  it,  and  equally  that,  when  discovered,  he  ma}'  be  made  re- 
sponsible for  its  performance.  There  can  be  no  doubt  that  the  defend- 
ant might  have  sued  upon  the  contract  so  made  by  Cherry  ;  and  I  am 
equally  of  opinion  that  he  may  be  made  responsible,  provided  the  parol 
evidence  was  admissible  to  show  that  he  was  the  real  principal.  The 
rule  is  clearly  laid  down  by  Parke,  B.,  in  Higgins  v.  Senior,  8  M.  &  W. 
834,  844.  .  .  .  The  principal  may  sign  by  the  hand  of  another  in  his 
own  name,  or  in  a  fictitious  name,  or  by  means  of  a  stamp,  and  so 
become  a  party  to  the  contract  in  vaiious  ways.  The  ground  upon 
which  this  doctrine  rests  is  explained  also  by  Parke,  B.,  in  Beckham  v. 
Drake,  9  M.  &  W.  79,  96,  where,  dealing  with  a  similar  matter,  lie  says  : 
"The  doctrine  rests  upon  this  principle,  that  the  act  of  the  agent  was 
the  act  of  the  principal,  and  the  subscription  of  the  agent  was  the 
subscription  of  the  principal."  And  he  proceeds  to  say,  "I  am  not 
aware  of  the  existence  of  any  cases  in  which  a  distinction  has  been 
suggested  between  a  contract  which  has  been  entered  into  by  one  indi- 
vidual for  another,  or  by  two  individuals  for  themselves  and  another, 
as  to  the  liability  of  the  principal  to  be  sued."  He  then  refers  to  the 
case  of  a  bill  of  exchange,  which  he  treats  as  an  exception,  standing 
upon  the  law-merchant.  The  same  principle  is  exemplified  by  the 
Court  of  Queen's  Bench  in  the  case  of  Trueman  r.  Loder,  11  Ad.  &  E. 
589.  There  the  agent  was  acting  for  a  foreign  house,  and  the  Court 
say  :  "If  the  defendant  chose  to  appoint  an  agent  to  carry  on  trade  for 
him  in  the  name  of  Higginbotham,  he  clearly  authorized  that  person  to 
do  all  that  would  be  necessary  for  him  so  to  carry  it  on  ;  among  other 
things,  to  employ  a  broker  to  sell  for  him  ;  and  it  does  not  lie  in  his 
mouth  to  deny  that  the  name  of  Higginbotham  so  inserted  by  the  broker 
in  the  sold-note  is  the  defendant's  own  name  of  business."  There  are 
other  observations  to  the  same  eflject,  and  it  is  held  that  the  evidence 
is  admissible,  and  that  the  signature  is  the  authorized  signature  of  the 
principal.  The  evidence  does  not  contradict  the  written  contract.  It 
is  true,  as  has  been  said,  that  the  agent  may  be  personally  charged,  and 
that  where  he  has  given  his  signature  to  the  contract,  he  is  estopped 
from  saying  that  he  did  not  contract  personally.     That,  however,  is  a 


SECT.  I.]  CALDER  V.   DOBELL.  567 

very  different  thing  from  saying  that  the  real  principal  when  discovered 
cannot  sue  or  be  sued.  The  suppression  of  the  principal's  name  is 
entirely  consistent  with  the  practice  of  many  trades,  to  conceal  trans- 
actions of  speculation.  The  effect  is  that  if  the  broker  enters  into 
contracts  in  his  own  name,  and  has  a  principal,  those  whom  he  con- 
tracts with  will  have  the  responsil)ility  botli  of  the  principal  and  of  the 
broker.  There  is  nothing  inconsistent  in  thus  giving  an  option  to  hold 
either  responsible.  I  am  of  opinion  that,  in  accordance  with  all  the 
authorities,  the  parol  evidence  was  admissible. 

The  next  point  is  raised  upon  the  latter  part  of  the  leave  reserved. 
It  seems  to  me  to  be  impossible  to  say,  as  matter  of  law,  that  the 
learned  judge  was  bound  to  direct  the  jury  to  find  for  the  defendant. 
There  was  evidence  which  could  not  have  been  withdrawn  from  the  jury. 
I  am,  therefore,  of  opinion  that  that  ground  for  the  motion  fails. 

Then  it  is  said  that  the  plaintiffs  had  elected  to  treat  Cherry  as  the 
principal.  For  tlie  purpose  of  this  point  we  must  assume  that  there 
was  a  principal  who  autlioiized  Cherry  to  make  the  contract.  Now,  it 
is  contended  that  the  very  fact  of  the  plaintiffs'  entering  into  the  con- 
tract with  Cherry  was  evidence  of  election.  But,  if  the  parol  evidence 
was  admissible,  that  argument  fails.  Election  must  be  a  matter  of 
fact ;  and  it  appears  that,  at  the  time  of  entering  into  the  contract,  the 
plaintiffs  expressly  refused  to  trust  Cherr}'.  The  next  ground  of  alleged 
election  was  the  demand  of  payment  made  on  the  broker.  That,  how-' 
ever,  was  an  equivocal  act.  If  the  plaintiffs  have  got  the  responsibilit}' 
of  a  principal,  the  demands  made  upon  the  agent  ma}'  have  been  made 
upon  him  on  behalf  of  his  principal.  There  are  many  trades  in  which 
the  practice  prevails  of  referring  to  the  brokers  alone  ;  and  it  is  a  very 
convenient  practice.  Where  shipping  documents  have  to  be  tendered, 
they  are  almost  invariably  sent  to  the  brokers  for  that  purpose.  I 
think  the  evidence  relied  on  to  show  an  election  was  extremelj'  slight, 
especially  where  the  only  action  brought  was  brought  against  the  prin- 
cipal. It  was  clearly  for  the  jur\',  and  the  learned  judge  would  not 
have  been  justified  in  withdrawing  it  from  them.  The  jury,  as  men  of 
business,  have  arrived  at  a  conclusion  upon  it  of  which  I  see  no  reason 
to  complain  :  and  my  Brother  Brett  does  not  report  to  us  that  he  is  dis- 
satisfied with  the  verdict. 

Then  it  was  said  that  there  was  no  evidence  of  authority  to  Cherr}' 
to  make  the  contract  in  the  form  in  which  he  made  it.  That  rests 
entirely  upon  the  evidence  of  the  defendant  himself;  Cherry  was  not 
called.  It  was  proved  that  advice  was  sent  by  Cherry  to  the  defendant 
of  a  contract  with  Messrs.  Wright  &  Co.  for  100  bales  of  cotton,  and 
there  was  also  evidence  that  Cherry  had  authority  to  make  that  con- 
tract, and  evidence  of  ratification  by  the  defendant ;  and  the  jur}'  found 
that  the  defendant  did  authorize  and  did  ratif}'  the  contract  so  made, 
and  my  Brother  Brett  is  not  dissatisfied  with  that  finding.  It  was 
further  objected  that  the  learned  judge  was  wrong  in  leaving  it  to  the 
jary  to  say  whether  the  plaintiffs  elected  to  treat  Cherry  as  principal, 


568  CALDER  V.   DOBELL.  [CHAP.  IV. 

and  to  give  credit  to  him,  and  him  only.  That,  however,  was  in  favor 
of  the  defendant.  I  think  it  was  not,  as  matter  of  law,  a  contract  made 
with  Cherry  alone,  and  that  the  jury  were  well  warranted  in  finding  as 
the}'  did.  It  was  further  contended  that  my  Brother  Brett  should  have 
told  the  jury  that  the  plaintiffs  were  bound  to  make  their  election  at 
once,  or,  at  all  events,  in  a  reasonable  time.  That  point  was  not  and 
could  not  have  been  raised  at  the  trial.  For  the  purpose  of  this  ques- 
tion all  the  rest  must  have  been  assumed  against  the  defendant.  I 
further  think  that  there  is  no  ground  for  saying  that  the  verdict  was 
against  the  weight  of  evidence.     There  will,  therefore,  be  no  rule. 

WiLLES,  J.  I  am  of  the  same  opinion.  When  it  is  borne  in  mind 
that  there  is  no  difference,  except  when  introduced  by  Act  of  Parlia- 
ment, between  a  contract  by  word  of  mouth  and  a  contract  in  writing 
not  under  seal,  the  whole  argument  must  fail.  The  contention  on  the 
part  of  the  defendant  is  founded  upon  the  fact  of  there  being  a  contract 
in  writing,  and  on  that  part  of  it  which  contains  the  name  of  the  agent. 
Consider  how  the  matter  would  have  stood  if  what  passed  between  the 
plaintiffs  and  Cherry  had  been  all  without  writing.  It  would  have  stood 
thus,  —  Dobell  authorized  Cherry  to  buy  cotton  for  him.  Cherry- pro- 
poses to  bu}'  cotton  of  the  plaintiffs  ;  but,  being  told  that  the  sellers  do 
not  choose  to  rely  on  his  credit,  lie  named  Dobell  as  his  principal.  The 
plaintiffs  thereupon  sell  to  Dobell  through  Cherr}'  as  his  agent.  Upon 
that  state  of  things,  Dobell  would  alone  have  been  liable,  and  not  the 
agent.  Superadd  to  this  that,  at  the  time  of  entering  into  the  contract, 
the  sellers  had  said  to  Cherry,  "  We  insist  upon  having  the  liability  of 
3-ou,  Cherr}',  just  as  if  you  were  dealing  with  us  without  disclosing  the 
name  of  your  principal ;  "  and  suppose  Cherr}'  had  assented  to  that. 
In  that  case,  Dobell  would  have  been  liable  to  the  plaintiffs  as  the  prin- 
cipal buyer,  and  Cherry  would  also  have  been  liable  because  he  had 
agreed  that  he  should  stand  in  the  same  situation  as  if  he  had  bought 
as  broker  for  an  undisclosed  principal.  The  result  would  have  been 
that  the  sellers  would  have  had  a  right  to  elect  to  sue  either  the  agent 
or  the  principal.  Now,  what  was  the  effect  of  the  writing  here?  A 
bought-note  is  handed  to  the  sellers,  in  which  Cherry's  name  only  is 
mentioned,  but  which  did  not  preclude  the  sellers  from  showing  that 
Cherry  had  a  principal.  That  had  the  effect  of  making  the  principal 
answerable,  assuming  that  his  name  had  not  been  disclosed  at  the  lime  ; 
and  it  had  the  further  superadded  effect  of  making  the  agent  liable,  by 
reason  of  the  peculiar  character  of  the  writing,  by  which  he  undertook 
to  be  liable  as  if  the  name  of  his  principal  had  not  been  disclosed.  This 
is  the  sole  effect  of  Higgins  v.  Senior,  8  M.  &  W.  834.  The  case  does 
not  stand  barely  on  that.  There  is  another  writing,  viz.,  the  advice- 
note  which  was  handed  to  Dobell,  and  which  ran  thus :  "  I  have  this 
day  bought  for  you  from  Messrs.  Wright  &  Co.^"  &c.  These  bought 
and  sold-notes  very  often  vary,  as  in  Cropper  v.  Cook,  L.  R.  3  C.  P. 
194,  and  yet  form  part  of  the  same  transaction.  Tt  would  be  a  remark- 
able contract  if  the  buyer  could  sue  the  sellers  upon  it,  and  yet  the  set 


SECT.  I.]  CALDER   V.    DOBELL.  569 

lers  be  precluded  from  suing  the  buyer.     The  result  is  that  the  defendant 
must  show  that  his  liability  was  put  an  end  to  by  the  election.     That  is 
what  Lord  Tenterden  meant  when  he  said,  in  Thomson  6'.  Davenport, 
9  B.  &  C.  78,  that,  "  if  at  the  time  of  the  sale  the  seller  know  not  only 
that  the  person  who  is  nominally  dealing  with  him  is  not  principal,  but 
agent,  and  also  know  who  the  principal  realh*  is,  and  notwithstanding 
all  that  knowledge,  chooses  to  make  the  agent  his  debtof,  dealing  with 
him  alone,  then,  according  to  Addison  c.  Gandasequi,  -i  Taunt.  574, 
and  Paterson  r.  Gandasequi,  15  East,  62,  the  seller  cannot  afterwards, 
on  the  failure  of  the  agent,  turn  round  and  charge  the  principal,  having 
once  made  his  election  at  the  time  when  he  had  the  power  of  choosing 
between  the  one  and  the  other."     I  do  not  agree  with  Mr.  Holker  that 
two  persons  cannot  be  severally  liable  on   the  same   contract.     The 
question  is  whether  there  was  anything  in  the  circumstances  of  this 
case  to  negative  or  exclude  the  liability  of  both  principal  and  agent, 
or  to  substitute  the  lial)ility  of  the  latter  for  that  of  the  former.     The 
facts  were  properly  submitted  to  the  jury ;  and  they  have  come  to  a 
conclusion  upon  them  to  which  it  was  competent  to  them  to  come. 
There  is  nothing  to  prevent  the  seller  from  insisting  upon  having  both 
principal  and  agent  liable  to  him  at  the  same  time,  with  the  additional 
advantage  of  knowing  the  principal's  name  at  the  time.      The  very 
ol)ject  of  the  plaintiffs'  insisting  upon  being  informed  of  the  name  of 
the  principal  was  to  make  him  liable  ;  and  Cherry's  name  was  inserted 
in  the  contract  for  the  purpose  of  enabling  them  to  charge  him,  at  their 
option.     To  hold  that  asking  the  name  of  the  principal  at  the  time  is 
to  discharge  the  principal,  would  seem  to  me  to  be  contrar}'  to  common 
sense.     Several  cases  were  referred  to  in  the  course  of  the  argument ; 
but  the  only  one  to  which  I  desire  to  call  attention,  and  v\hich  has  a 
close  resemblance  to  the  present  case,  is  Mortimer  i'.  M'Callan,  6  M.  & 
W.  58.     I  do  not  refer  to  that  case  for  the  usages  of  the  Stock  Ex- 
change, which  are  subject  to  change.     The  decision  proceeded  on  a 
usage  of  that  market  which  involved  circumstances  very  like  those  of 
the  present  case.     There,  one  Taylor,  a  stock-broker,  had  applied  to 
the  plaintiff,  a  stock-jobber,  for  the  purchase  of  £5000  stock  for  the 
defendant.     The  plaintiff,  not  having  an}'  stock  of  his  own,  applied  to 
Ward,   who  agreed  to  transfer,  and  did    accordingly    transfer,   stock 
standing  in  his  name  to  tlie  defendant.     Evidence  was  given  that  it 
was  the  usage  on  the  Stock  Exchange  to  give  credit  to  the  broker,  even 
although  the  principal  were  disclosed,  though  credit  is  sometimes  given 
to  the  principal,  and  his  cheque  taken  when  the  broker's  credit  is  not 
thought  sufficient.     The  judge   in  summing  up  told  the  jury  that,  al- 
though by  the  regulations  of  the  Stock  Exchange  the  broker  was  the 
part}'  considered  liable,  it  did  not  follow  that  the  principal  might  not 
be  liable  also ;  and  he  left  it  to  them  to  say  whether  the  plaintiff  had 
ever  given  credit  to  or  taken  the  responsibilit}'  of  Taylor,  or  ever  con- 
sented to  release  the  defendant  as  the  principal.     The  Court  held  this 
to  be  a  propel-  direction  ;  and,  the  jury  having  found  that  the  plaintiff 


570  CALDER  V.   DOBELL.  [CHAP.  IV. 

had  not  released  the  pruieipal,  the  verdict  was  upheld.  Lord  Abinger, 
who  was  eminently  experienced  as  to  wliat  is  the  proper  question  to  be 
left  to  the  jur}'  in  a  case  of  this  sort,  there  says  (6  M.  &  W.  at  p.  66)  : 
"I  do  not  apprehend  the  rules  of  the  Stock  Exchange  would  make  an}- 
difference  as  to  the  right  of  a  party  who  sells  stock  to  choose  to  what 
person  credit  shall  be  given,  if  he  thinks  proper ;  and  the  evidence 
shows  that  it  was  tlie  case  sometimes  to  look  to  the  principal.  That, 
then,  brings  it  to  a  question  in  this  particular  case  whether  or  not  the 
plaintiff  meant  to  take  the  credit  of  Taylor  onh,  and  give  up  that  of 
the  defendant,  or  whether  he  insisted  on  the  credit  of  the  defendant. 
Now,  that  was  a  question  for  the  jury."  It  is  enough  to  sa}'  that  it 
never  seems  to  have  occurred  to  the  minds  of  the  counsel  or  of  the 
Court  that  the  mention  of  the  name  of  the  principal  at  the  time  made 
any  difference  as  to  the  liability  of  either  principal  or  agent.  I  would 
conclude  by  saying  that,  but  for  the  law  laid  down  in  Higgins  v.  Senior, 
8  M.  &  W.  834,  Dobell,  the  principal,  onl}-  would  have  been  hable  here  ; 
and  that  case  only  goes  to  superadd  the  liability  of  the  agent,  and  not 
to  detract  from  the  liability  of  the  principal.  Apart  from  the  written 
contract,  the  principal  onl}'  would  have  been  liable  ;  and  the  clear  effect 
of  the  writing  was  only  to  superadd  the  liability  of  Cherry,  the  agent. 

Montague  Smith,  J.  I  am  of  the  same  opinion.  The  written  con- 
tract made  b\-  the  plaintiffs  with  Cherry  upon  the  face  of  it  purports  to 
be  his  contract,  and  his  contract  alone  ;  and  the  first  question  is,  whether 
parol  evidence  was  admissible  to  show  that  he  was  contracting  for  a 
principal.  It  is  not  denied  that  such  evidence  might  be  received  if  the 
principal  had  not  been  disclosed  at  the  time  ;  but  it  was  strenuously 
contended  that  it  cannot  be  received  where  the  principal  is  known. 
I  must  confess  I  do  not  see  an}'  principle  upon  which  the  supposed  dis- 
tinction can  rest.  The  rule  is  that  evidence  is  admissible  to  show  that 
the  person  contracting  was  acting  for  a  principal,  because  the  admission 
of  such  evidence  does  not  contradict  the  written  contract.  It  is  so  put 
by  Parke,  B.,  in  Higgins  v.  Senior,  8  M.  &  W.  834,  844.  .  .  .  The 
evidence  is  admissible  on  this  principle,  viz.,  that,  for  the  purpose  of 
that  contract,  the  principal  has  allowed  the  agent  to  sign  it  in  his  own 
name  in  the  place  of  himself.  It  has  been  held,  no  doubt,  that  evi- 
dence is  not  admissible  to  show  that  the  person  named  as  the  contract- 
ing party  is  not  liable.  ...  I  have  felt  some  doubt  as  to  the  soundness 
of  that  distinction.  However,  it  has  been  followed  in  a  great  number 
of  cases,  and  is  now  well  established  ;  and,  although  technical,  it  appears 
to  consist  with  the  practical  business  habits  of  mankind.  Whether 
strictl}'  logical  or  not,  it  is  recognized  by  the  law.  The  other  principle, 
which  is  well  laid  down  and  is  perfectly  intelligible,  viz.,  that  parol  evi- 
dence may  be  given  to  show  that  the  signature,  though  by  an  agent,  is 
intended  to  bind  his  principal,  is  quite  sufficient  to  dispose  of  this  case, 
unless  the  distinction  suggested  by  Mr.  Holker  is  well  founded.  I  can- 
not find  ground  for  any  such  distinction,  so  far  as  the  admissibilit}'  of 
evidence  is  concerned.     The  second  question  is  whether  the  plaintiffs, 


SECT.  I.J  CALDEIi   V.    DOBELL.  571 

knowing  at  the  time  of  the  making  of  the  contract,  that  there  was  a 
principal,  and  also  who  that  principal  was,  did  not  by  the  form  of  the 
contract  elect  to  treat  Cherry  as  the  principal  and  the  only  principal. 
That  is  the  point  which  seems  to  me  to  require  the  most  consideration. 
Mr.  Ilolker  was  bound  to  contend  that  the  entering  into  the  contract 
with  Cherry  in  his  own  name,  was,  under  the  circumstances,  conclusive 
evidence  that  the  plaintilfs  had  elected  to  treat  Cherry  alone  as  the 
principal.  I  agree  that  it  was  strong  evidence  ;  but,  if  the  parol  evi- 
dence was  admissible,  it  shows  what  the  real  transaction  between  the 
parties  was.  Being  employed  to  bu}'  cotton  for  the  defendant,  with  aa 
injunction  not  to  allow  the  defendant's  name  to  appear.  Cherry  buys  in 
his  own  name;  but  the  sellers,  for  reasons  of  their  own,  insisting  upon 
knowing  who  the  principal  was,  Cherry,  disregarding  his  instructions 
in  that  respect,  disclosed  the  defendant's  name.  The  plaintiffs  required 
the  principal's  name,  with  a  view  of  fixing  him  ;  but,  because  he  desired 
that  his  name  should  not  appear,  the  contract  was  made  out  in  the  name 
of  the  agent.  The  plaintilfs  clearly  never  intended  to  make  the  bargain 
with  Cherr}'  alone.  At  all  events,  it  w^as  a  question  for  the  jury  ;  and 
it  is  impossible  to  say  that  it  could  have  been  properly  withdrawn  from 
them.  Mr.  Holker  contended  that  the  election  was  made,  and  conclu- 
sivel}'  made,  at  the  time  of  the  contract.  The  cases  show  that  the  sel- 
ler ma}'  make  his  election  whenever  the  principal  is  discovered  ;  and 
the  only  difference  in  principle  between  the  case  where  the  principal  is 
disclosed  and  wliere  he  is  not  disclosed,  is,  that,  in  the  former  case, 
the  election  may  be  made  at  the  very  time  the  contract  is  made.  If 
there  were  any  estoppel,  there  might  be  some  force  in  Mr.  Holker's 
argument ;  but,  when  we  come  to  a  question  of  evidence,  the  argument 
fails.  The  only  other  question  is  as  to  the  mode  in  which  the  questions 
were  put  to  the  jury.  I  think,  however,  the}'  were  put  in  a  perfectly 
intelligible  manner,  and  that  the  finding  of  the  jury  was  well  warranted 
by  the  evidence. 

Brett,  J.  The  first  point  made  b}-  Mr.  Holker  was,  that  parol  evi- 
dence that  Cheny  was  acting  as  agent  for  the  defendant  ought  not  to 
have  been  received,  because  the  existence  of  a  principal  and  his  name 
were  known  at  the  time  the  contract  was  entered  into,  and  therefore 
the  parol  evidence  would  contradict  the  written  document.  AVhere  the 
principal  is  undisclosed,  it  is  conceded  that  parol  evidence  that  there  is 
a  principal  is  admissible,  inasmuch  as  that  does  not  contradict  the  writ- 
ten contract.  I  cannot  follow  the  distinction.  I  see  no  reasoning  to 
support  it.  It  was  further  urged  that,  inasmuch  as  b}'  the  written  con- 
tract, the  agent  was  made  liable  b}-  election,  the  principal  could  not 
be  liable  also,  because  that  would  be  making  two  persons  severally 
liable  upon  the  same  contract  at  the  same  time.  This  argument  would 
be  equally  applicable  to  a  case  where  the  principal  is  undisclosed  ;  and 
there,  though  from  the  time  the  contract  is  made  the  agent  is  liable, 
the  principal  also  is  liable.  If  Mr.  Holker's  major  proposition  is  incor- 
rect, there  is  no  more  reason  why  the  minor  should  be  sustainable. 


572  CALDER   V.   DOBELL.  [CHAP.  IV. 

As  to  the  point  of  nonsuit,  it  is  said  that  I  ought  to  have  told  the  jurj', 
as  matter  of  law,  that  the  plaintiffs,  by  the  insertion  of  Cherry's  name 
in  the  contract,  conclusively'  elected  to  treat  him  and  him  alone  as  the 
buyer.  If,  however,  the  first  point  fails,  this  also  must  fail.  It  must 
be  a  question  of  fact  upon  the  whole  evidence,  and  I  could  ;iot  with- 
draw it  from  the  jur^'.  Mr.  Holker  finds  fault  with  all  the  questions  I 
left  to  the  jur}'.  As  to  the  first  and  second,  they  were  mere  matters 
of  form.  There  was  abundant  evidence  that  Cherry  did  make  the  con- 
tract with  the  auttiority  of  the  defendant,  and  that  he  did  ratify  it;  for, 
the  advice-note  being  sent  to  him,  he  kept  it  for  five  months  without 
objection.  The  jury,  therefore,  were  well  warranted  in  answering  both 
those  questions  affirmativel}'.  As  to  the  question  of  election,  I  left  that 
question  to  the  jury,  having  Thomson  v.  Davenport,  9  B.  &  C.  78, 
before  me  ;  and  the  jury,  with  their  knowledge  of  Liverpool  business, 
were  perfectly  well  qualified  to  deal  with  that ;  and  I  cannot  saj-  that 
they  came  to  a  wrong  conclusion.  Hide  refused. 

Against  this  judgment  an  appeal  was  brought  in  the  Exchequer 
Chamber,  and  the  case  was  argued  on  the  16th  of  June  before  Kelly, 
C.  B.,  Martin,  B.,  Blackburn,  J.,  Channell,  B.,  Lush,  J.,  Hannen, 
J.,  and  Cleasby,  B. 

June  16.     Holker,  Q.  C.  (Ilerschell  with  him),  for  the  defendant.^ 

Quain,  Q.  C.  (C.  Kussell  with  him),  for  the  plaintiflTs,  was  not  called 
upon. 

Kelly,  C.  B.  I  think  this  case  is  free  from  doubt  or  diflftcult}'.  The 
contract  was  made  in  the  name  of  Cherry,  the  agent ;  but  the  case 
shows  that  it  was  made  on  behalf  of  a  principal  who  was  named  at  the 
time.  I  think  the  plaintiffs  had  a  right  to  sue  either  the  agent  or  the 
principal  at  their  election.  No  doubt,  the  election  being  once  deter- 
mined, there  is  an  end  of  the  matter;  as,  where  the  agent  has  been 
sued  to  judgment.  Here,  however,  nothing  was  done  to  determine  the 
election  at  the  time  this  action  was  brought  against  the  principal.  The 
question  was,  I  think,  properly  left  to  the  jury,  and  upon  proper  evi- 
dence ;  and  the  verdict  was  quite  right.  There  is  no  ground  for  grant- 
ing a  rule. 

Martin,  B.  The  true  rule  was  laid  down  by  Parke,  B.,  in  Higgins 
V.  Senior,  8  M.  &  W.  834.  The  fact  of  his  name  having  been  mentioned 
at  the  time,  did  not  make  Dobell  the  less  a  principal. 

Blackburn,  J.  I  apprehend  that  where  a  man  is  acting  as  agent, 
the  principal  is  not  the  less  bound  because  the  contract  is  so  drawn  as 
to  make  the  agent  also  liable.  There  are  many  cases  where,  although 
a  man  is  acting  for  another,  he  is  not  contracting  for  another.  The 
distinction  suggested  by  Mr.  Holker  is  new  to  me.  Contracts  are  fre- 
quently made  b}'  masters  of  ships,  charter-parties,  and  other  contracts  ; 
nobod}^  ever  doubted  that  the  owners  might  sue  and  be  sued  upon 
them. 

'  Citing  Short  v.  Spackman,  2  B.  &  Ad.  962.  — Ed. 


SECT.  I.]  CHANDLER   V.    COE.  573 

Hannen,  J.,  referred  to  Story  on  Agency,  §  160  a.,  where  it  is  said: 
*'  If  the  agent  possesses  due  authority  to  make  a  written  contract  not 
under  seal,  and  he  makes  it  in  his  own  name,  whetlier  he  describes 
himself  to  be  an  agent  or  not,  or  whether  the  principal  be  known  or 
unknown,  the  agent  will  be  liable  to  be  sued  and  be  entitled  to  sue 
thereon,  and  his  principal  also  will  be  liable  to  be  sued  and  be  entitled 
to  sue  tliereon,  in  all  cases,  unless  from  the  attendant  circumstances  it 
is  clearly  manifested  that  an  exclusive  credit  is  given  to  the  agent,  and 
it  is  intended  by  both  parties  that  no  resort  shall  in  any  event  be  had 
by  or  against  the  principal  upon  it." 

The  rest  of  the  court  concurred.  Judgment  affirmed. 


CHANDLER  v.   COE   and   another. 
Supreme  Court  of  New  Hampshire.     1874. 

[54  .V.  //.  561.] 

Assumpsit,  by  Horace  J.  Chandler  against  E.  S.  Coe  &  S.  R.  Bearce, 
brought  to  recover  a  balance  claimed  to  be  due  from  the  defendants 
for  cutting  and  drawing  logs  in  the  winter  of  1865  and  1866,  and  for 
delivering  the  same  in  tlie  Androscoggin  River  in  the  spring  of  1866. 
Plea,  the  general  issue.     The  writ  is  dated  October  8,  1870, 

It  appeared  that  some  time  in  October,  1865,  the  plaintiff  and  one 
L.  E.  Dunn  had  a  conversation  in  regard  to  cutting  and  hauling  the 
logs  ;  that  the  plaintiff  explored  the  land  from  which  they  were  to  be 
cut,  and,  during  the  latter  part  of  November,  1865,  made  a  verbal  bar- 
gain with  said  Dunn  to  cut  and  haul  and  deliver  as  aforesaid  what  logs 
the  plaintiff  might  be  able  to  do  with  four  horses  and  four  oxen,  prop- 
erly manned  and  equipped,  at  four  dollars  per  thousand  feet ;  that 
immediately  after  this  verbal  contract  was  made,  the  plaintiff  com- 
menced the  work  and  continued  until  the  fore  part  of  April,  1866  ;  that 
Dunn  made  advances  to  the  plaintiff  to  the  amount  of  8550  before 
December  28,  1865,  at  which  time  he  reduced  the  contract  to  writing, 
describing  himself  therein  as  the  part}'  with  whom  the  plaintiff  con- 
tracted, and  not  mentioning  the  names  of  the  defendants,  and  the 
plaintiff  and  Dunn  signed  it.  The  plaintiff  was  a  witness,  and  was 
permitted,  against  the  defendants'  objection,  to  testify  that  Dunn  at 
the  time  of  making  the  contract  said  he  was  acting  for  the  defendants 
in  making  it ;  and  on  cross-examination  he  testified  that  it  was  liis  un- 
derstanding that  Dunn  was  acting  for  the  defendants  in  making  the 
contract.  Dunn  testified  that  he  did  not  represent  to  the  plaintiff,  at 
the  time  the  contract  was  made  or  at  an}' other  time,  that  he  was  acting 
in  the  capacity  of  agent  for  the  defendants,  or  as  agent  for  anybody', 
but  that  he  was  acting  for  himself  alone. 


574  CHANDLER   V.    COE.  [CHAP.  IV 

The  plaintiff  claimed  that  the  defendants  were  the  principals  in  said 
contract;  that  the  contract  was  made  in  the  name  of  Dunn  for  them, 
and  that  he  was  their  agent  in  doing  the  business  ;  and  that  the}-  had 
allowed  and  permitted  him,  as  their  agent,  to  contract  and  act  for 
them,  for  a  long  time,  in  his  own  name,  in  making  contracts  for  cutting 
and  hauling  timber  ;  and  the  plaintiff  introduced  evidence  tending  to 
prove  that  such  had  been  their  way  of  doing  business.  The  defendants 
objected,  and  contended  that  after  the  written  contract  had  been  read 
in  evidence  (as  it  was  for  the  plaintiff),  parol  testimony  should  not  be 
admitted  to  prove  that  the  defendants  were  the  real  parties  in  interest. 
But  the  court  overruled  the  objection  and  admitted  the  evidence,  and 
the  defendants  excepted.  The  defendants'  counsel  argued  to  the  jury, 
that,  if  the  plaintiff  was  to  be  believed,  the  defendants  were  not  undis- 
covered principals,  but  tluxt  at  the  time  of  making  the  contract  he  was 
informed  bv  Dunn  that  he  was  acting  as  agent  in  the  matter,  and  that 
bis  principals  were  the  defendants  ;  and  thereupon,  before  the  plaintiffs 
counsel  commenced  his  argument  to  the  jur}',  moved  for  a  nonsuit  on 
that  ground.  The  court  declined  to  order  a  nonsuit,  and  the  defendants 
excepted.  But  the  court  at  that  time  informed  tlie  counsel  that  the  law 
would  be  held  to  be,  that  if  at  the  time  of  executing  the  written  con- 
tract the  plaintiff  knew  and  was  informed  by  Dunn  that  he  was  acting 
as  agent  in  the  matter,  and  that  the  defendants  were  his  principals,  he 
could  not  recover  in  this  suit,  and  read  to  the  counsel,  in  the  hearing  of 
the  jury,  the  following  minute,  which  had  been  previously  prepared  as  an 
instruction  to  be  given  to  the  jur}' :  "  I  think  if  the  plaintiff  knew  at  the 
time  of  making  the  contract  that  Dunn  was  acting  as  agent  in  the  affair 
and  not  on  his  own  behalf,  and  also  knew  for  whom  he  was  acting,  and 
then  entered  into  this  contract  in  writing,  which  on  its  face  is  a  con- 
tract with  Dunn  as  an  individual,  his  only  remedy  is  against  Dunn,  and 
these  defendants  cannot  be  held  liable."  The  court  then  proposed  to 
submit  to  the  jurj'  the  three  following  questions,  which  had  also  been 
previously  prepared  in  writing:  "  (1)  Was  Dunn  acting  as  the  agent 
of  the  defendants  in  making  the  contract?  (2)  Did  the  plaintiff  at  the 
time  of  making  the  contract  know  that  Dunn  was  acting  as  the  agent 
of  the  defendants  in  making  it,  and  did  Dunn  so  inform  him?  (3)  Has 
the  plaintiff  been  paid  for  the  timber  he  got  out  under  the  contract? 
If  not,  how  much  is  due  him,  including  interest?" 

The  plaintiffs  counsel  said  he  did  claim  that  Dunn  informed  the 
plaintiff  that  he  was  acting  as  the  agent  of  the  defendants  in  making 
the  contract,  and  that  the  plaintiff  understood  from  Dunn  that  he  was 
entering  into  a  contract  with  the  defendants  through  Dunn  as  their 
agent.  The  second  question  was  thereupon  struck  out,  and  the  court 
informed  the  counsel  that  the  first  and  third  questions  would  be  sub- 
mitted to  the  jur}',  in  order  that  the  results  of  the  trial  might  not  be 
lost  in  case  the  view  of  the  law  suggested  b}-  the  court  as  to  the  second 
question  should  be  held  to  be  erroneous.  The  plaintiffs  counsel  argued 
to  the  jury  that  the  fact  that  at  the  time  the  contract  was  made  Dunn 


SECT.  I.]  CHAXULEll   V.   COE.  575 

said  he  vvas  the  agent  of  the  defendants  was  a  strong  circumstance  to 
prove  tliat  issue  in  favor  of  the  plaintitf. 

The  jur}'  answered  tlie  first  question  in  the  alUiinutive  and  the  third 
in  the  negative,  and  assessed  the  plaintilf's  damages  at  81,094.20. 
Upon  considering  tlie  foregoing  exceptions  and  the  questions  arising  on 
the  motion  for  a  nonsuit,  tliis  court  is  to  make  such  order  as  to  judg- 
ment as  may  be  prc^per. 

G.  A.  Binglidin  and  Rinj  (b  Dr<  u-^  for  the  phuntitf. 

Fletcher  ct*  Heijicood  and  Bio'ns  <&  II'  t/n:o(HL  for  the  defendants. 

HiBBAKU,  J.  The  plaintiff  claims  to  be  entitled  to  recover  against 
the  defendants,  for  labor  performed  by  liiui  under  a  contract  entered 
into  with  L.  E.  Dunn,  and  reduced  to  writing  and  signed  by  Dunn  in 
his  own  name,  upon  the  ground  that  the  real  contracting  i)arty  was  the 
defendants  carrying  on  business  in  the  name  of  L.  E.  Dunn,  who  acted 
as  their  agent  in  making  tlie  contract,  and  so  informed  the  plaintiff  at 
the  time  of  making  it.  The  plaintiff's  position  is  not  merely  that  Dunn 
was  the  agent  of  the  defendants,  duly  authorized  to  make  the  written 
contract  in  their  biihalf,  which  the  plaintiff  understood  at  the  time  it 
was  made,  but  that  it  was  the  contract  of  the  defendants  carrying  on 
business  in  the  name  of  L.  E.  Dunn.^  .  .  . 

It  is  very  clear  that  if  the  defendants  carried  on  business  in  the  name 
of  L.  E.  Dunn,  and  Dunn  executed  this  contract  in  his  own  name  as 
their  agent,  it  is  binding  upon  them  whether  he  did  or  did  not  inform 
the  plaintiff  of  his  agenc\'.  The  law  is  the  same  even  in  the  case  of 
negotiable  instruments,  which  under  some  circumstances  stand  on  a 
different  ground  from  simple  written  contracts,  as  will  hereinafter 
appear. 

But  is  it  indispensable  for  the  plaintiff  to  prove  that  the  defendants 
adopted  the  name  of  L.  E.  Dunn  as  their  business  name  ?  Ma}'  he  not 
recover  if  Dunn  acted  as  their  dulv  authorized  agent  in  making  the  con- 
tract, although  he  ma\-  not  have  done  other  business  for  them  in  his 
own  name  ?  If  the  contract  had  been  verbal,  the  case  would  have  been 
free  from  difficult}'.  In  that  event,  if  the  pi'incipals  had  been  known  at 
the  time  it  was  made,  the  presumption  would  have  been  that  it  was 
their  contract,  but  if  the  agent  had  contracted  on  his  own  account,  and 
the  plaintiff  had  elected  to  look  to  him  rather  than  to  the  principals, 
he  would  have  been  bound  by  his  election.  If  they  had  been  un- 
known, he  would  have  been  entitled  to  make  his  election  whether  to 
look  to  the  agent  or  to  the  principals,  within  a  reasonable  time  after 
discovering  them.   .   .   . 

But  the  contract  between  these  parties  was  reduced  to  writing,  and  it 
does  not  contain  the  names  of  the  defendants  ;  and  this  presents  a  per- 
plexing question,  which  has  given  rise  to  a  great  vai'iet}'  of  contradic- 
tory and  irreconcilable  decisions.   .   .   . 

We  are  of  the  opinion  that  where  a  principal  is  sought  to  be  charged 

^  The  omitted  passages  deal  chiefly  with  the  law  as  to  partners  and  undisclosed 
Drincipals.  —  Ed. 


576  CHANDLER    V.    COE.  [CHAP.  IV. 

upon  a  contract  in  writing,  made  in  the  name  of  his  agent,  the  rule  of 
evidence,  which  prohibits  the  parties  to  a  written  contract  from  con- 
tradicting or  varying  its  terms  by  parol  testimony,  applies  if  the  prin- 
cipal was  known,  but  not  if  he  was  unknown. 

We  have  already  shown  that  there  is  no  difficulty  in  sustaining  an 
action  upon  an  express  verbal  contract  against  or  in  favor  of  an  un- 
known principal,  while  if  the  principal  was  known  it  is  to  be  presumed 
that  he  was  the  contracting  party,  unless  it  clearly  appears  that  the 
agent  contracted  on  his  own  account,  and  that  witli  a  knowledge  of 
the  facts  the  opposite  party  elected  to  look  to  the  agent.  Now,  so  far 
as  the  question  of  election  is  concerned,  it  is  the  same  whether  the 
contract  was  verbal  or  written,  except  as  a  written  contract  may  fur- 
nish evidence  of  an  election  to  deal  exclusively  with  the  agent  whose 
name  was  inserted  in  it.  But  does  it  not  furnish  conclusive  evidence 
of  such  election?  Is  parol  testimony  admissible  for  the  purpose  of 
charging  a  principal  upon  a  written  contract  made  in  the  name  of  his 
agent?  In  order  to  determine  this  question,  it  may  be  useful  to  ascer- 
tain the  reason  for  the  rule  of  evidence  to  which  we  have  referred,  and 
whether  it  actually  calls  for  the  rejection  of  such  testimony,  either  in 
the  case  of  a  known  or  of  an  unknown  principal,  or  of  both.  The 
reason  assigned  by  Lord  Coke  is,  that  "  it  would  be  inconvenient  that 
matters  in  writing,  made  by  advice  and  on  consideration,  and  which 
fully  impart  the  certain  truth  of  the  agreement  of  the  parties,  should 
be  controlled  by  averment  of  the  parties  to  be  proved  by  the  uncertain 
testimony  of  slippery  memory,"  Countess  of  Rutland's  case,  5  Rep. 
26a.  In  other  words,  the  reason  for  the  rule  is,  that  the  written 
instrument  furnishes  the  best  evidence  of  the  actual  agreement ;  that 
it  is  more  probable  that  the  contract  which  the  parties  intended  to 
make  can  be  correctly  ascertained  from  what  was  written  than  from 
the  testimony  of  witnesses.  But  the  party  seeking  to  bring  in  an 
unknown  principal  starts  by  admitting  that  the  contract  was  writter 
according  to  the  agreement;  that  his  intention  was  to  look  to  the 
agent  alone,  just  as  he  would  admit  his  intention  was  if  the  contract 
had  been  merely  verbal.  How  could  he  deny,  whether  the  contract 
was  verbal  or  written,  that  he  intended  to  look  to  the  agent,  if  he  did 
not  know  that  any  principal  existed?  The  spirit  of  the  rule,  therefore, 
is  not  violated  by  giving  him  a  right,  in  the  case  of  a  written  as  in  the 
case  of  a  verbal  contract,  to  bring  in  tbe  party  who  had  the  beneficial  in- 
terest in  the  transaction  ;  and  this  is  accomplished,  not  by  contradicting 
or  varying  the  terms  of  a  written  instrument,  but  by  applying  and 
giving  effect  to  an  established  rule  of  law. 

But  if  the  principal  was  known  when  the  contract  was  made  and 
signed,  the  case  is  different.  If  the  party  who  received  from  an  agent 
a  written  contract  executed  in  the  name  of  the  agent,  knowing  that 
he  acted  for  a  principal,  seeks  to  hold  the  principal,  it  must  be  upon 
the  ground  that  it  was  intended  to  be  and  was  received  by  him  as  the 
contract  of  the  principal ;  because,  if  he  received  it  as  the  contract  of 


SECT.  I.]  CHANDLER   V.    COE.  577 

the  agent,  knowing  that  he  was  an  agent,  that  constitutes  a  conclu- 
sive election  to  look  alone  to  the  agent.  Parol  evidence,  therefore,  if 
admitted  in  such  a  case,  does  show  that  the  contiact  which  the  parties 
intended  to  mal<e  was  not  what  the  writing  indicates,  but  different.  It 
shows  that  an  error  was  con)initted  in  writing  it.  Its  admission,  there- 
fore, allows  "the  uncertain  testimony  of  slippery  memory"  to  come  in 
and  control  what  the  parties  have  deliberately  written  and  signed,  and 
this  is  inadmissible  because  the  writing  furnishes  the  best  evidence  of 
the  actual  contract.   .   .   . 

In  accordance  with  these  views,  no  judgment  can  be  rendered  upon 
the  findings  of  the  jury  in  this  case.  Although  the  jury  found  that 
Dunn  in  making  the  contract  did  act  as  the  agent  of  the  defendants, 
yet  the  plaintiff  having  testified  and  his  counsel  insisted  that  when  it 
was  made  he  was  fully  informed  by  Dunn  of  his  agency,  and  having 
prevented  the  judge  from  submitting  that  question  to  the  jury,  we 
might,  were  there  no  other  point  in  the  case,  assume  that  to  be  so,  and 
order  judgment  for  the  defendants,  upon  the  ground  that  the  written 
contract,  as  it  cannot  be  contradicted  or  varied  by  parol  testimony, 
furnishes  conclusive  evidence  of  an  election  by  the  plaintiff  to  look  to 
Dunn  alone  as  the  other  contracting  party  ;  but  the  plaintiff,  as  was 
shown  at  the  commencement  of  this  opinion,  was  entitled  to  a  verdict 
if  the  contract  was  entered  into  by  Dunn,  as  agent  for  the  defendants, 
in  his  own  name  as  their  business  name.  If  that  was  so,  it  is  imma- 
terial whether  the  plaintiff  was  or  was  not  informed  of  the  agency. 
The  judge  therefore  erred  in  not  submitting  that  question  to  the  jury, 
unless  this  was  waived  by  the  plaintiff.  The  defendants  claim  that 
the  plaintiff  took  no  such  position  at  the  trial ;  but  the  plaintiff  insists 
that  he  did  distinctly  take  the  position  at  the  trial,  and  that  the  re- 
served case  expressl}'  so  states.  Whether  the  language  of  the  reserved 
case  will  bear  such  a  construction  is  not  ver^*  clear,  but  it  is  evident 
that  this  may  be  an  important  question  between  these  parties,  and  that 
the  case  was  tried  by  counsel  under  a  misapprehension  of  the  law  ;  and, 
after  some  hesitation,  we  have  concluded  that  we  ought  to  hold  the 
trial  to  have  been  a  mistrial  in  this  respect,  and,  before  ordering  judg- 
ment for  the  defendants,  to  give  to  the  plaintiff  an  opportunity  to  go 
to  the  jurj'  upon  the  question  whether  the  contract  was  entered  into 
by  Dunn  as  agent  for  the  defendants  in  his  own  name  as  their  business 
name.  On  the  other  hand,  although  Dunn,  being  called  by  the  defend- 
ants, testified  that  he  gave  the  plaintiff  no  information  in  regard  to 
the  agenc}'  —  in  fact,  that  none  existed  —  and  the  jury  have  found  that 
Dunn  in  making  the  contract  did  act  as  the  agent  of  the  defendants, 
this  court  is  not  at  liberty  to  assume  that  the  testimony  of  Dunn  upon 
this  point  was  true  and  that  of  the  plaintiff  untrue,  for  the  purpose  of 
ordering  judgment  in  favor  of  the  plaintiff  against  the  defendants  as 
undisclosed  principals.  Therefore,  in  the  view  we  take  of  the  law,  if 
we  assume  the  findings  of  the  jur^'  to  be  correct,  this  case  is  peculiar 
in  this,  that  the  defendants  were  not  entitled  to  a  verdict,  unless  the 

37 


578  GADD   V.   HOUGHTON.  [CHAP.  IV. 

testimony  of  their  agent,  who  was  called  by  them  as  a  witness,  was 
false  ;  and  the  plaintiff,  so  far  as  the  case  rests  on  the  relation  of  prin- 
cipal and  agent  alone,  was  not  entitled  to  a  verdict,  unless  his  own 
testimony  was  false,  although  he  may  have  been  entitled  to  it  on 
another  ground.  Case  discharged^ 


GADD  V.  HOUGHTON  and  another. 

Court  of  Appeal.     1876. 

[1  Ex.  D.  357.] 

This  was  an  action  for  non-delivery  of  oranges  sold  by  the  defend- 
ants to  the  plaintiff.  At  the  trial  before  Pollock,  B.,  at  the  Liverpool 
spring  assizes,  1875,  the  following  facts  were  proved  :  The  plaintiff,  a 
fruit  merchant  in  Liverpool,  having  had  some  communication  with  the 
defendants,  who  were  fruit  broliers  in  Liverpool,  as  to  the  purchase  of 
oran<Tes  with  the  brand  of  James  Morand  ^z  Co.,  wrote  to  the  defend- 
ants on  the  4th  of  November,  1374,  as  follows:  "Please  telegraph 
out  an  order  on  my  account  for  2000  cases  Valencia  oranges  (all  420s) 
of  the  brand  James  Morand  &  Co.  Shipment  from  commencement  of 
season  to  not  later  than  the  7th  of  December  next,  at  12s.  9c?.  per  case, 
f.  o.  b."  The  defendants  accordingly  telegraphed  to  James  Morand  & 
Co.  at  Valencia,  in  Spain,  that  they  had  this  offer,  and  having  on  the 
7th  of  November  received  a  reply  by  telegram  from  Morand  «&  Co. 
that  they  accepted  the  offer,  the  defendants,  on  the  9th  of  November, 
wrote   to   the    plaintiff  as    follows:    "Mr.  George  Gadd.     We  have 

1  In  Traeman  v.  Loder,  11  Ad.  &  E.  589,  594-595  (1840),  Lord  Denman,  C.  J., 
delivering  the  opinion  of  the  court,  said  :  — 

"  If  then,  the  defendant  chose  to  appoint  an  agent  to  carry  on  trade  for  him  in  the 
name  of  Higginbotham,  he  clearly  authorized  that  person  to  do  all  that  could  be  nec- 
essary for  him  so  to  carry  it  on  ;  among  other  things,  to  employ  a  broker  to  sell  for 
him  ;"  and  it  does  not  lie  in  his  mouth  to  deny  that  the  name  of  Higgiubotham  so 
inserted  by  the  broker  in  the  sold  note  is  the  defendant's  own  name  of  business. 
Then,  as  the  bought  and  sold  notes,  where  they  are  not  inconsistent,  form  the  contract, 
here  is  a  good  compliance  with  the  Statute  of  Frauds  in  the  two  instruments  signed 
bv  the  broker,  one  containing  the  name  of  the  plaintiffs,  the  other  the  trade  name  by 
which  the  defendant  thought  proper  to  instruct  his  agent  to  deal  for  him. 

"  Among  the  ingenious  arguments  pressed  by  the  defendant's  counsel,  there  was 
cue  which  it  mav  be  fit  to  notice  ;  the  supposition  that  parol  evidence  was  introduced 
to  vary  the  contract,  showing  it  not  to  have  been  made  by  Higginbotham,  whose  name 
is  inserted  in  it,  but  by  the  defendant,  who  gave  him  the  autliority.  Parol  evidence  is 
always  necessary  to  show  that  the  party  sued  is  the  person  making  the  contract  and 
bound  by  it.  Whether  he  does  so  in  his  own  name  or  in  that  of  another,  or  in  a  feigned 
name,  and  whether  the  contract  be  signed  by  his  own  hand  or  by  that  of  an  agent,  are 
inquiries  not  different  in  their  nature  from  the  question  who  is  the  person  who  has 
just  ordered  goods  in  a  shop.  If  .he  is  sued  for  the  price,  and  his  identity  made  out, 
the  contract  is  not  varied  by  appearing  to  have  been  made  by  him  in  a  name  not 
his  own."  —  Ed. 


SECT.  I.J  GADD   V.    HOUOHTON.  579 

this  day  sold  to  you  on  account  of  James  Morand  &  Co.,  Valencia, 
2000  cases  Valencia  oranges  (all  420s.)  of  the  brand  'James  Morand 
&  Co.,'  at  126'.  dd.  per  case,  free  on  board.  Shipment  from  commence- 
ment of  season,  to  not  later  than  7th  of  December  next.  Payment  as 
usual.  J.  C.  Houghton  &  Co."  The  contract  not  having  been  per- 
formed, the  plaintiff  brought  this  action.  The  defendants'  counsel  con- 
tended that  upon  this  contract  Morand  &  Co.,  and  not  the  defendants, 
were  liable,  and  they  called  several  brokers  and  other  witnesses,  who 
gave  evidence  of  usage  in  Liverpool  as  to  the  non-liability  of  l)rokers 
upon  contracts  in  the  present  form,  but  the  evidence  became  immaterial 
in  the  view  taken  of  the  contract  by  the  Court  of  Appeal.  A  verdict 
was  then  entered  for  tlie  defendants,  witli  leave  to  the  plaintiff  to  move 
to  enter  it  for  him,  on  the  ground  that  the  defendants  were  personally 
liable  on  the  contract,  the  damages,  if  necessar}-,  to  be  settled  b}'  a 
referee. 

An  order  Jilsi  having  been  obtained  accordingl}',  was,  after  argu- 
ment on  the  11th  of  January,  187G,  made  absolute  b}-  the  Exchequer 
Division  (Kelly,  C.  B.,  Pollock  and  IIuddleston,  BB.),  on  the  ground 
that  the  case  was  undistinguishable  from  Paice  v.  Walker,  L.  R.  5  Ex. 
173. 

From  this  decision  the  defendants  appealed. 

Benjamin,  Q.  C.  and  Bigh<mi,  for  tlie  api)cllants. 

HemcheJl^  Q.  C,  and  31'  Connelly  for  the  plaintiff. 

James,  L.J.  I  tliink  the  judgment  of  the  Exchequer  Division  ought 
to  be  reversed.  The  case  is  not,  in  ni}'  opinion,  in  any  way  governed 
"by  Paice  v.  Walker,  for  whatever  the  decision  was  in  that  case  upon 
the  words  "  as  agents,"  the  words  in  the  present  case  "  on  account  of," 
are  not  at  all  ambiguous,  and  it  would  be  impossible  to  make  them 
words  of  description.  The  ratio  decidendi  in  Paice  y.  Walker  was  that, 
having  regard  to  the  contract  and  all  the  circumstances  of  the  case, 
the  woi'ds  "as  agents"  must  be  considered  as  merelj'  describing  or 
intimating  the  fact  that  the  defendants  were  agents,  and  did  not 
amount  to  a  statement  that  the}'  were  making  a  bargain  "  on  account 
of"  another  person.  Those  are  the  ver}'  words  used  in  the  present 
case.  When  a  man  says  that  he  is  making  a  contract  "on  account  of" 
some  one  else,  it  seems  to  me  that  he  uses  the  verj'  strongest  terms 
the  English  language  affords  to  show  that  he  is  not  binding  himself, 
but  is  binding  his  principal.  As  to  Paice  v.  Walker,  I  cannot  conceive 
that  the  words  "as  agents"  can  be  properly  understood  as  implying 
merel}'  a  description.  The  word  "as"  seems  to  exclude  that  idea.  If 
that  case  were  now  before  us,  I  should  hold  that  the  words  "as  agents  " 
in  that  case  had  the  same  effect  as  the  words  "  on  account  of"  in  the 
present  case,  and  that  the  decision  in  that  case  ought  not  to  stand.  I 
do  not  dissent  from  the  principle  that  a  man  does  not  relieve  himself 
from  liabilit}'  upon  a  contract  b}'  using  words  which  are  intended  to  be 
merely  words  of  description,  but  I  do  not  think  the  words  "  as  agents" 
were  words  of  description. 


580  GADD    V.    HOUGHTON.  [CHAP.  IV. 

Mellish,  L.  J.  I  am  of  the  same  opinion.  The  question  is  whether 
on  the  true  construction  of  this  contract,  Houghton  &  Co.  sold  the 
goods  themselves  or  entered  into  a  contract  on  behalf  of  Morand  & 
Co.  The  language  used  must  be  interpreted  according  to  its  plain  and 
natural  meaning.  As  is  said  in  the  note  to  Thomson  v.  Davenport,  2 
Sm.  L.  C.  6th  ed.  344,  when  a  man  signs  a  contract  in  his  own  name 
he  is  prima  facie  a  contracting  party  and  liable,  and  there  must  be 
something  very  strong  on  the  face  of  the  instrument  to  show  that  the 
liability  does  not  attach  to  him.  But  if  there  are  plain  words  to  show 
that  he  is  contracting  on  behalf  of  somebody  else,  why  are  we  not  to 
give  effect  to  them  ?  I  can  see  no  difference  between  a  man  writing 
"I,  A.  B.,  as  agent  for  C.  D.,  have  sold  to  you,"  and  signing  "A.  B. ;" 
and  his  writing,  "  I  have  sold  to  you,"  and  signing  "  A.  B.  for  C.  D. 
the  seller."  When  the  signature  comes  at  the  end  you  apply  it  to 
everything  which  occurs  throughout  the  contract.  If  all  that  appears 
is  that  the  agent  has  been  making  a  contract  on  behalf  of  some  other 
person,  it  seems  to  me  to  follow  of  necessity  that  that  other  person  is 
the  person  liable.  This  is  one  of  the  simplest  possible  cases.  How 
can  the  words  "on  account  of  Morand  &  Co."  be  inserted  merely  as 
a  description?  The  words  mean  that  Morand  &  Co.  are  the  people 
who  have  sold.  It  follows  that  the  persons  who  have  signed  are 
merely  the  brokers  and  are  not  liable.  I  agree  also  that  the  circum- 
stances of  Paice  v.  Walker  are  to  be  distinguished  from  the  present, 
and  that  the  judgment  of  the  Exchequer  Division  ought  to  be  reversed. 

Baggallay,  J.  A.,  concurred. 

QuAiN,  J.  The  ease  appears  to  me  plain.  It  seems  extraordinary 
that  there  should  be  any  doubt  whether  this  binds  the  principal  or  the 
agent.  It  is  said  that  in  order  to  relieve  the  agent  from  liability,  he 
must  sign  "  as  agent"  or  "  on  account  of"  Morand  &  Co.  I  cannot 
see  the  necessity  for  adding  those  words  to  the  signature  if  you  can 
gather  from  the  contract  that  he  makes  it  on  account  of  Morand  &  Co. 
Those  words  at  the  end  of  the  signature  would  add  nothing  to  what 
has  been  stated  in  the  body  of  the  contract.  The  agent,  therefore, 
does  not  render  himself  personally  liable  by  not  adding  them. 

Archibald,  J.  I  am  of  the  same  opinion.  The  usual  way  in  which 
an  agent  contracts  so  as  not  to  render  himself  personally  liable  is  by 
signing  as  agent.  That,  however,  is  not  the  only  way,  because,  if  it 
is  clear  from  the  body  of  the  contract  that  he  contracted  only  as  agent, 
he  would  save  his  liability.  No  words  could  be  plainer  than  the  words 
"  on  account  of  Morand  &,  Co."  to  show  that  the  defendants  contracted 
only  as  agents. 

I  also  agree  that  Paice  v.  Walker  is  to  be  distinguished  from  this 
case.  Jxuhjtnent  reversed  and  rule  discharged.^ 

1  See  Hoogh  v.  Manzanos,  4  Ex.  D.  104  (1879),  s.  c.  48  L.  J.  n.  s.  Ex.  398.  —  Ed. 


SECT.  I.]  BYINGTON    V.    SIMPSON.  581 


BYINGTON  AND  ANOTHER  V.  LUCY  SIMPSON. 
Supreme  Judicial  Court  of  Massacuusetts.     1883. 

[134  Mass.  169.] 

Holmes,  J.  This  is  a  suit  to  recover  a  balance  due  uuder  a  building 
contract.  The  contract  was  in  writing,  and  purported  on  its  face  to  be 
made  by  the  plaintiffs  with  J.  B.  Simpson.  It  provided  that  the  work 
should  be  done  under  the  direction  of  J.  B.  Simpson,  agent,  and  was 
signed  "J.  B.  Simpson,  agent."  J.  B.  Simpson  was  in  fact  contract- 
ing as  agent  for  the  defendant,  his  wife,  and  this  was  known  to  the 
plaintiffs  at  the  time  the  contract  was  made. 

The  defendant  contends  that  she  was  not  bound  b}-  this  contract 
under  the  foregoing  circumstances.  The  fact  that  the  contract  pur- 
ports to  be  tuider  seal,  although  not  sealed,  has  not  been  relied  on  as 
affecting  the  case,  which,  especially  in  view  of  the  inartificial  nature  of 
the  instrument,  it  ought  not  to  do  ;  but  the  argument  is,  that,  inasmuch 
as  tiie  plaintiffs  knew  of  the  existence  of  a  principal  before  the  con- 
tract was  made,  and  then  were  contented  to  accept  a  written  agree- 
ment which  on  its  face  bound  the  agent,  they  must  be  taken  to  have 
dealt  with,  and  to  have  given  credit  to,  the  agent  alone  ;  just  as,  upon 
a  subsequent  discover^'  of  the  undisclosed  principal,  they  might  have 
determined  their  right  to  charge  him  b^'  a  sufficient  election  to  reh- 
upon  the  credit  of  the  agent. 

We  are  of  opinion  that  the  plaintiffs'  knowledge  does  not  make  their 
case  an}'  weaker  than  it  would  have  been  without  it.  Whatever  the 
original  merits  of  the  rule,  that  a  partv  not  mentioned  in  a  simple 
contract  in  writing  may  be  charged  as  a  principal  upon  oral  evidence, 
even  where  the  writing  gives  no  indication  of  an  intent  to  bind  anj' 
other  person  than  the  signer,  we  cannot  reopen  it,  for  it  is  as  well 
settled  as  any  part  of  the  law  of  agenc}'.  Huntington  v.  Knox,  7  Cush. 
371,  374;  Eastern  Railroad  v.  Benedict,  5  Gray,  561;  Lerned  v. 
Johns,  9  Allen,  419  ;  Hunter  r.  Giddings,  97  Mass.  41 ;  Exchange 
Bank  v.  Rice,  107  Mass.  37,  41  ;  National  Ins.  Co.  v.  Allen,  116  Mass. 
398  ;  Higgins  r.  Senior,  8  M.  &  W.  834,  844.  And  it  is  evident  that 
words  which  are  sufficient  on  their  face,  b}-  established  law,  to  bind  a 
principal,  if  one  exists,  cannot  be  deprived  of  their  force  bj-  the  cir- 
cumstance that  the  other  party  relied  upon  their  sufficiencv  for  that 
purpose.  Yet  that  is  what  the  defendant's  argument  comes  to.  For 
the  same  parol  evidence  that  shows  the  plaintiffs'  knowledge  of  the 
agency  ma}-  warrant  the  inference  that  the  plaintiffs  meant  to  have 
the  benefit  of  it,  and  to  bind  the  principal. 

The  only  reasons  which  have  been  offered  for  the  admissibility  of 
oral  evidence  to  charge  the  alleged  principal  confirm  this  conclusion. 
That  suggested  in  Higgins  v.  vSenior,  ubi  si/pra,  is  the  same  which  is 
usual!}-  given  for  the  liability  of  a  master  for  his  servant's  torts,  that 


582  BYINGTON   V.    SIMPSON.  [CHAP.  IV. 

the  act  of  the  agent  is  the  act  of  the  principal  (see  1  Bl.  Com.  432  ; 
Laugher  v.  Pointer,  5  B.  &,  C.  547,  553  ;  WilUams  v.  Jones,  3  H.  &,  C. 
602,  609)  ;  the  meaning  of  which,  in  its  latter  application  at  least,  is, 
as  was  stated  long  ago,  that  master  and  servant  are  "  fained  to  be  all 
one  person."  West's  Symboleograph}-,  Part  I.  sec.  3,  "  Of  the  Fact  of 
Man."  The  most  plausible  explanation  which  has  been  attempted  pur- 
sues the  same  thought  more  clearl}'.  It  is  said  that  the  principal  is 
liable  ''  because  he  is  taken  to  have  adopted  the  name  of  the  [agent]  as 
his  own,  for  the  purpose  of  [the]  contract."  2  Smith  Lead.  Cas.  (8th 
ed.)  408,  note  to  Thomson  v.  Davenport;  Trueman  v.  Loder,  11  Ad.  & 
El.  589,  595  ;  S.  C.  3  P.  &  Dav.  267,  271.  If  this  is  to  be  accepted, 
there  is  obviously  the  strongest  ground  for  saying  that  the  principal 
has  adopted  the  agent's  name  for  the  purposes  of  a  given  contract  when 
it  is  shown  that  both  parties  have  acted  on  tliat  footing. 

The  most  that  could  fairly  be  argued  in  any  case  would  be,  that, 
under  some  circumstances,  proof  that  the  other  party  knew  of  the 
agenc}',  and  yet  accepted  a  writing  which  did  not  refer  to  it,  and  which 
in  its  natural  sense  bound  the  agent  alone,  might  tend  to  show  that  the 
contract  was  not  xnade  with  an}'  one  but  the  part}-  whose  name  was 
signed  ;  that  the  agent  did  not  sign  as  agent,  and  was  not  understood 
to  do  so,  but  was  himself  the  principal.  But  these  are  questions  of 
fact,  and,  as  a  matter  of  fact,  it  is  obvious,  ami  it  is  found,  that  the  de- 
fendant was  the  principal,  and  that  the  contract  was  made  with  her. 

The  objection  that  two  persons  cannot  be  bound  by  the  same  signa- 
ture to  a  contract,  if  sound,  would  be  equally  fatal  when  the  principal 
was  not  known.  There  is  a  double  obligation,  although  there  can  be 
but  one  satisfaction. 

Our  decision  is  in  accordance  with  a  thoroughl}'  discussed  English 
case  which  went  to  the  Exchequer  Chamber,  and  with  the  statement  of 
the  law  by  Mr.  Justice  Story  there  cited.  Calder  v.  Dobell,  L.  R.  6 
G.  P.  486  ;  Story  Agency,  §  160  a. 

Judgment  for  the  plaintiffs  affirmed. 

J.  H.  Benton.,  Jr.,  for  the  defendant. 

S.  L,  Poicers  (  G.  W.  Sanderson  with  him) ,  for  the  plaintiffs. 


SECT.  II.J  WILKS  V.   BACK.  583 

SECTION   II. 

Sealed  Instruments. 

WILKS    AND    ANOTHKR    V.    BACK. 

King's  Bench.     1802. 

[2  East,  \r2.] 

The  defendant  being  indebted  upon  an  account  to  the  plaintiffs 
Wilks  and  Browne,  who  were  formerly  in  partnersliip  as  millers,  it 
was  agreed  to  refer  the  matter  to  arbitration  ;  and  accordingly  bonds  of 
submission  were  entered  into  by  the  parties  as  after  mentioned ;  and 
the  arbitrators  by  their  award  dated  14th  August,  1801,  reciting  that  b}' 
two  several  bonds  dated  loth  June,  1801,  under  the  respective  hands 
and  seals  of  M.  Wilks  and  J.  Browne,  millers,  and  late  partners,  and  of 
W.  Back,  the  parties  became  mutually  bound  to  abide  the  award,  &c., 
proceeded  to  award  the  sum  of  £407  9*'.  Id.  to  be  due  on  the  balance  of 
accounts  from  the  defendant  to  the  plaintiffs,  &.Q. 

Upon  a  motion  to  set  aside  the  award,  the  question  was  at  last 
resolved  into  this,  whether  Wilks  had  competent  authorit}'  to  bind 
Browne,  his  late  partner,  by  executing  the  bond  of  submission  for  him. 
As  to  which  it  appeared  that  by  an  indenture  dated  28th  August,  1799, 
between  Wilks  and  Browne,  the  latter  for  the  considerations  therein 
mentioned  did  constitute  and  appoint  Wilks  to  be  his  attorney  irrevocable 
to  ask,  demand,  sue  for,  compound,  and  receive  all  the  debts  and 
effects  of  the  said  partnership  ;  with  full  power  for  Wilks  to  sign,  seal, 
and  deliver  in  the  name  of  Browne  an}-  deed,  &c.,  whatsoever  necessary 
for  the  purposes  therein  mentioned,  &c.  By  virtue  of  this  authority 
Wilks  executed  the  bond  of  submission  in  question  in  this  form  : 
"Mathias  Wilks"  (L.  S.).  "For  James  Browne,  Mathias  Wilks" 
(L.  S.),  and  it  was  sealed  and  delivered  by  Wilks  for  himself,  and  also 
for  his  late  partner  Browne  ;  but  the  latter  was  not  present  at  the 
time. 

Garroic  and  Parnther^  in  showing  cause  against  the  rule,  did  not  dis- 
pute that  according  to  Combe's  case,  9  Rep.  76  b.,  where  any  has 
authority,  as  attorney,  to  do  an  act,  he  cannot  do  it  in  his  own  name, 
but  in  the  name  of  him  who  gave  the  authority.  But  they  con- 
tended that  here  the  sealing  and  delivery  was  done  by  Wilks  in  the 
name  of  Browne  as  well  as  of  himself,  which  he  had  authorit}-  to  do  by 
virtue  of  the  power  of  attorney-  of  August,  1799,  and  that  the  signing  of 
his  own  name  twice  was  not  material,  as  he  also  signed  the  name  of 
Browne,  and  declared  that  it  was  done  for  him.  The  form  of  words 
used  cannot  invalidate  the  act  where  the  authorit}'  is  sufficient  to 
warrant  the  act  done.     If  there  had  been  onl}-  one  seal,  3'et  if  the 


584  WILKS   V.    BACK.  [chap.  IV. 

iustrument  were  sealed  and  delivered  for  himself  and  his  partner,  he 
having  authorit}'  so  to  do,  it  would  have  been  sufficient,  aceording  to 
the  case  of  Ball  v.  Duusterville,  4  T.  R.  313.  It  is  true  that  was  done 
in  the  presence  of  the  other  partner;  but  that  was  only  material  in  that 
ease,  as  showing  that  it  was  done  bv  his  particular  authority,  and  here 
was  a  special  authority  by  deed  to  do  the  act. 

J^rskine  and  Comyn,  contra.  It  is  clear  from  Harrison  v.  Jackson, 
7  T.  R.  207,  that  one  partner  cannot  as  such  bind  another  by  deed. 
Then  if  the  authorit\-  be  derived  from  tlie  power  of  attorne}-,  Wilks 
ought  to  have  executed  it  in  the  name  of  Browne  the  principal,  and  not 
in  his  own,  according  to  what  was  said  in  Combe's  case,  and  confnined 
b}'  Lord  C.  B.  Gilbert  in  4  Bac.  Abr.  140,  and  by  Lord  Kenyon  in 
White  V.  CuN'ler,  6  T.  R.  177.  So  in  Frontin  v.  Small,  2  Lord  Raym. 
1418,  s.  c.  1  Str.  705,  a  lease  made  by  an  attorney  in  her  own  name, 
though  stated  to  be  made  "for  and  in  tiie  name  of"  the  principal,  was 
holden  void,  and  that  no  action  of  covenant  lay  thereon.  Now  here  it 
was  signed  by  Wilks  "  for  Browne;"  whereas  the  signature  ought  to 
have  been  in  the  name  of  Browne,  though  made  by  Wilks.  Therefore 
as  Browne  would  not  be  bound  bj-  the  award,  it  is  void  for  want  of 
mutuality. 

Grose,  J.  No  doubt  the  award  must  be  mutual,  and  for  this  pur- 
pose the  bond  must  be  executed  b}'  Browne  as  well  as  bj-  Wilks  ;  but 
this  is  a  sufficient  execution  b}'  both.  I  accede  to  the  doctrine  in  all 
the  cases  cited,  that  an  attornej'  must  execute  his  power  in  the  name 
of  his  principal,  and  not  in  his  own  name  ;  but  here  it  was  so  done,  for 
where  is  the  difference  between  signing  J.  B.  by  M.  W.  his  attorney 
(which  must  be  admitted  to  be  good),  and  M.  W.  for  J.  B.  ;  in  either 
case  the  act  of  sealing  and  delivering  is  done  in  the  name  of  the  princi- 
pal and  b}'  his  authority.  Whether  the  attorney  put  his  name  first  or 
last  cannot  affect  the  validity  of  the  act  done. 

Lawrence,  J.  No  doubt,  in  point  of  law,  the  act  done  must  be  the 
act  of  the  principal,  and  not  of  the  attorney  who  is  authorized  to  do  it. 
The  whole  argument  has  turned  upon  an  assumption  of  fact  that  this 
was  the  act  of  tlie  attorney,  which  is  not  well  founded.  This  is  not  like 
the  case  in  Lord  Raymond's  Reports  where  the  attorney  had  demised  to 
the  defendant  in  her  own  name,  which  she  could  not  do  ;  for  no  estate 
could  pass  from  her,  but  onl}-  from  her  principal.  But  here  the  bond 
was  executed  b\'  Wilks  for  and  in  the  name  of  his  principal ;  and  this 
is  distinctl}'  shown  b}*  the  manner  of  making  the  signature.  Not  that  even 
this  was  necessary  to  be  shown  ;  for  if  Wilks  had  sealed  and  delivered 
it  in  the  name  of  Browne,  that  would  have  been  enough  without  stating 
that  he  had  so  done.  However,  he  first  signs  his  own  name  alone 
opposite  to  one  seal  to  denote  the  sealing  and  deliver}'  on  his  own 
account,  and  then  opposite  the  other  seal  he  denotes  that  the  sealing 
and  delivery  was  for  James  Browne.  There  is  no  particular  form  of 
words  required  to  be  nsed,  provided  the  act  be  done  in  the  name  of  the 
principal. 


SECT.  II.]  TAFT   V.    BREWSTER.  585 

Lie  Blanc,  J.  Wilks  first  signed  it  in  his  own  name,  as  for  himself, 
and  then  to  denote  that  the  act  was  also  done  in  the  name  of  Browne, 
he  signed  it  again  for  James  Browne.  I  cannot  see  what  difference  it 
can  make  as  to  the  order  in  which  the  names  stand. 

Hule  discharged} 


TAFT    /•.    BREWSTER   and   others. 
Supreme  Court  of  New  York.     1812. 

[9  Johns.  334.] 

This  was  an  action  brought  against  the  defendant  and  Thaddeus 
Loomis  and  Joseph  Coats,  on  a  bond  dated  the  16th  of  April,  1810, 
by  which  the  defendants,  "  by  the  name  and  description  of  Jacob 
Brewster,  Thaddeus  Loomis,  and  Joseph  Coats,  trustees  of  the  Baptist 
Society  of  the  town  of  Richfield,"  acknowledged  themselves  bound  to 
the  plaintiff  in  the  sum  of  |>3,600,  to  be  paid,  &c.,  conditioned,  that  if 
the  defendants,  as  trustees  of  the  Baptist  Society  of  the  town  of  Rich- 
field, their  heirs,  &c.,  should  pay  the  plaintiff  the  sum  of  $1,800,  with 
interest,  at  the  several  times  therein  mentioned,  &c.  The  bond  was 
signed  "  Jacob  Brewster,  Thaddeus  Loomis,  and  Joseph  Coats,  trus- 
tees of  the  Baptist  Society  of  the  town  of  Richfield,"  and  sealed  by 
them  respective!}-. 

The  plaintiff  assigned  two  breaches:  1.  That  after  the  making  the 
bond,  &c. ,  a  large  sum  of  money,  to  wit,  $126,  being  the  interest  for 
one  year  then  elapsed,  was  then  due  and  owing;  and,  2.  That  another 
large  sum  of  money,  to  wit,  the  sum  of  $1,100,  became  due,  and  was 
owing,  to  the  defendants  on  the  1st  of  June,  1811,  which,  with  the  $126, 
was  still  in  arrear  and  unpaid. 

The  defendants,  after  craving  oyer  of  the  bond  and  condition,  de- 
murred, and  assigned  for  causes  of  demurrer:  1.  That  the  bond  was 
executed  by  the  defendants  in  a  corporate  and  not  in  their  individual 
capacity  ;  2.  That  the  declaration  was  double,  in  assigning  two  distinct 
breaches  of  the  condition  of  the  bond ;  and,  3.  That  in  assigning  the 
breaches,  it  is  not  said  "  according  to  the  statute,"  &c. 

The  plaintifT  joined  in  demurrer,  and  the  same  was  submitted  to  the 
court  without  argument. 

Per  Curiam.  The  bond  must  be  considered  as  given  by  the  defend- 
ants in  their  individual  capacities.  It  is  not  the  bond  of  the  Baptist 
Church  ;  and  if  the  defendants  are  not  bound,  the  church  certainly  is 
not,  for  the  church  has  not  contracted  either  in  its  corporate  name  or 
by  its  seal.  The  addition  of  trustees  to  the  names  of  the  defendants 
is,  in  this  case,  a  mere  descriptio personarum.     But  there  is  one  special 

1  Ace. :  Mussey  v.  Scott,  7  Cash.  215  (1851).  — Ed. 


586  STINCHFIELD   V.    LITTLE.  [OIIAP.  IV. 

cause  of  demurrer  well  taken,  and  that  is,  that  the  declaration  is  double, 
in  assigning  two  distinct  breaches.^  .  .  .  Judgment  must,  therefore, 
be  given  for  the  defendants,  with  leave,  nevertheless,  to  the  plaintiff  to 
amend  on  the  usual  terms. 


STINCHFIELD   v.   LITTLE. 
Supreme  Court  of  Maine.     1821. 

[1  Me.  231.] 

In  an  action  of  covenant  upon  the  issue  of  7ion  est  factum,  the  plain- 
tiff offered  iu  evidence  the  deed  declared  on,  m  hich  was  in  these  words : 
"Know  all  men  by  these  presents,  that  I,  Josiah  Little  of,  &c.,  b}'  vir- 
tue of  a  vote  of  the  Pejepscot  Proprietors,  passed  on  the  first  da}'  of 
September,  1784,  authorizing  and  appointing  me  to  give  and  execute 
deeds  for  and  in  behalf  of  said  proprietors,  for  and  in  consideration  of 
the  sum  of  thirty-seven  pounds  to  me  in  hand  paid  by  Thomas  Stinch- 
field  of,  &c.,  the  receipt  whereof  I  do  hereby  acknowledge,  have  given, 
granted,  released,  conve^'ed,  and  confirmed  unto  him  the  said  T.  S.,  his 
heirs  and  assigns  forever,  two  hundred  acres,  &c.  To  have  and  to 
hold  the  above  granted  and  bargained  premises  with  all  the  privileges 
and  appurtenances  thereof  to  him  the  said  T.  S.  his  heirs  and  assigns 
forever,  as  an  absolute  estate  of  inheritance  in  fee  simple  forever : 
hereby  covenanting  in  behalf  of  said  proprietors,  their  respective  heirs, 
executors,  and  administrators  to  and  with  the  said  T.  S.  his  heirs  and 
assigns  to  warrant,  confirm,  and  defend  him  and  them  in  the  possession 
of  the  said  granted  premises,  against  the  lawful  claims  of  all  persons 
whatsoever.  In  testimon}'  that  this  instrument  shall  be  forever  here- 
after acknowledged  by  the  said  proprietors  as  their  act  and  deed,  and 
be  held  good  and  valid  by  them,  I,  the  said  Josiah  Little,  by  virtue  of 
the  aforesaid  vote,  do  hereunto  set  m}'  hand  and  seal  this  nineteenth 
da}-  of  February,"  &c.,  with  the  defendant's  name,  and  a  seal.  To 
this  the  defendant  objected  that  the  deed  and  the  covenants  therein 
were  the  deed  and  covenants  of  the  Pejepscot  Proprietors,  and  not  of 
the  defendant ;  and  so  not  proving  tlie  declai'ation.  And  Thacher,  J., 
before  whom  the  cause  was  tried,  thereupon  directed  a  nonsuit,  with 
leave  for  the  plaintiff  to  move  that  the  nonsuit  should  be  set  aside 
and  the  action  proceed  to  trial,  if  the  Court  should  be  of  opinion  that 
the  deed  and  covenants  therein  were  the  deed  and  covenants  of  the 
defendant. 

Belcher  and  H.  Williams.,  for  the  plaintiff. 

Little  and  Longfelloio,  for  the  defendant.  Proprietors  of  lands,  in- 
corporated b}'  the  provisions  of  our  statutes,  have  no  common  seal,  and 

1  The  omitted  passage  deaLs  witli  duplicity  only.  —  Ed. 


SF.CT.  II.]  STINCHFIELD   V.    LITTLE.  587 

must  always  grant  by  vote,  or  convej-  by  deed,  executed  b}-  agent  or 
attorney  authorized  for  that  purpose.  .  .  . 

Preble,  J.  In  this  case  two  questions  are  presented  for  the  con- 
sideration of  the  Court.  1.  Is  the  deed  dechired  on  the  deed  of  the 
Pejepscot  proprietors?  2.  Admitting  it  not  to  be  deed  of  the  Pejep- 
Bcot  proprietors,  is  it  the  deed  of  Josiah  Little,  the  defendant? 

Where  a  contract  is  entered  into  or  a  deed  executed  in  behalf  of  the 
government  by  a  duly  authorized  public  agent,  and  the  fact  so  appears, 
notwithstanding  the  agent  may  have  affixed  his  own  name  and  seal,  it 
is  the  contract  or  deed  of  the  government,  who  alone  is  responsible, 
and  not  of  the  agent.  Unwin  v.  Wolseley,  1  D.  «&;  E.  G74  ;  Mabeath  v. 
Haldimand,  id.  172;  Hodgson  v.  Dexter,  1  Cranch.  345;  Dawes  v. 
Jackson,  9  Mass.  490;  Sheffield  v.  Watson,  3  Caines,  69.  But  the 
same  rule  does  not  obtain  in  relation  to  the  agent  or  attorney'  of  a  pri- 
vate person  or  corporation.  It  seems  to  have  been  settled  or  recognized 
as  law  in  courts  of  justice  b}' judges,  distinguished  for  their  wisdom  and 
learning,  in  successive  generations  and  under  different  governments, 
that  in  order  to  bind  the  principal  or  constituent  and  make  the  instru- 
ment his  deed,  the  agent  or  attorney  must  set  to  it  tiie  name  and  seal 
of  the  princii)al  or  constituent,  and  not  merely  his  own.  In  the  year 
1614  it  was  resolved  in  Combes'  Case,  9  Co.  76,  that  "when  any  has 
authorit}-  as  an  attorney  to  do  any  act,  he  ought  to  do  it  in  his  name 
who  gives  the  authority,  —  and  the  attorney  cannot  do  it  in  his  own 
name,  nor  as  his  proper  act,  but  in  the  name,  and  as  the  act,  of  him 
who  gives  the  authority."  There,  however,  the  act  done  by  attor- 
ney was  the  surrender  in  court  of  certain  copyhold  lands,  in  doing 
which,  as  is  well  known,  neither  signing  nor  sealing  constituted  an}' 
part  of  the  ceremony.  A  case  where  a  question,  relating  to  the  receiv- 
ing of  such  a  surrender  was  agitated,  came  before  the  Court  of  K.  B. 
in  1701,  —  Parker  v.  Kett,  1  Ld.  Raym.  658,  —  in  which  Ld.  C.J.  Holt 
seems  to  be  dissatisfied  with  the  rule  in  Combes'  Case,  and  expresses 
an  opinion  that,  though  the  act  were  done  in  the  attorney's  own  name, 
provided  he  had  sufficient  authority,  it  would  be  good  without  reciting 
his  authority',  though  not  so  regular  and  formal.  The  rule,  however,  as 
laid  down  in  Combes'  Case,  is  cited  by  Ld.  Ch.  Baron  Comyn,  as  good 
law.  Com.  Dig.  Attorney  (c.  14)  and  1  Rol.  330,  I  35,  is  quoted  as 
supporting  it.  Upon  the  same  authority  it  is  stated,  that  if  an  attorney 
has  a  power  b}'  writing  to  make  leases,  if  he  makes  a  lease  in  his  own 
name,  it  will  be  void.  This  latter  principle  was  recognized  as  law  in 
1726  in  Frontin  v.  Small,  2  Ld.  Raym.  1418.  In  that  case  also  the 
attorney  in  the  body  of  the  instrument  for,  and  in  the  name,  and  as 
attorney  of  the  principal,  demised,  &c.  ;  but  the  court  held,  that  a  per- 
son empowered  by  warrant  of  attorney'  to  execute  a  deed  for  another, 
must  execute  it  in  the  name  of  the  principal.  In  conformity  with  this 
decision  is  the  language  of  Ld.  C.  J.  Kenyon  in  1795,  in  White  v.  Cuy- 
ler,  6  D.  &  E.  176.  "In  executing  a  deed  for  the  principal  under  a 
power  of  attorney,  the  proper  way  is  to  sign  in  the  name  of  the  prin- 


588  STINCHFIELD   V.    LITTLE.  [CHAP.  IV. 

cipal."  And  at  a  still  later  period,  in  1802,  in  Wilkes  v.  Back,  2  East, 
142,  the  doctrine,  that  an  attorney  must  execute  his  power  in  the  name 
of  his  principal,  and  not  in  his  own  name,  was  recognized  by  the  whole 
Court  as  sound  law.  The  same  rule  seems  to  obtain  also  in  the  courts 
of  law  in  this  country.  Thus  in  Simond  v.  Catlin,  2  Caines,  66,  C.  J. 
Kent  not  only  admits  the  authority  of  Frontin  v.  Small,  but  adds, 
*'  when  a  man  acts  in  contemplation  of  law  by  the  authority  and  in 
the  name  of  another,  if  he  does  an  act  in  his  own  name,  although 
alleged  to  be  done  by  him  as  attorney,  it  is  void."  So  also  in  Fowler 
V.  Shearer,  7  Mass.  14,  C.  J.  Parsons,  in  delivering  the  opinion  of  tlie 
Court,  says:  "If  an  attorney  has  authority  to  convey  lands,  he  must 
do  it  in  the  name  of  the  principal.  The  conveyance  must  be  the  act  of 
the  principal,  and  not  of  the  attorne}' ;  otherwise  the  conveyance  is 
void.  And  it  is  not  enough  for  the  attorney  in  the  form  of  the  convey- 
ance, to  declare  that  he  does  it  as  attorney,  for,  he  being  in  the  place 
of  the  principal,  it  must  be  the  act  and  deed  of  the  principal,  done  and 
executed  by  the  attorney  in  his  name."  This,  it  is  manifest,  is  only  a 
combination  of  the  principles  of  the  two  cases  of  Combes  and  Frontin 
V.  Small,  and  as  such,  is  a  recognition  on  the  part  of  the  Court  of  the 
law  as  laid  down  in  those  cases.  But  in  the  case  of  Elwell  v.  Shaw,  16 
Mass.  42,  this  subject  was  again  brought  in  review  before  the  Court. 
There  the  deed  in  question  commenced  with  a  recital  at  full  length  of 
the  power  of  attorney  from  Jonathan  to  Joshua  Elwell ;  and  the  attor- 
ney, professing  to  act  only  in  virtue  of  that  power,  proceeds  to  convey, 
&c.,  and  then  concludes,  "In  testimony  whereof,  I  have  hereunto  set 
the  name  and  seal  of  the  said  Jonathan,"  &c.,  but  affixes  his  own  name 
and  a  seal.  In  delivering  their  opinion  the  Court  say,  it  is  impossible 
that  any  one  should  doubt  the  intention  of  the  parties,  but,  yielding  to 
the  weight  of  the  authorities,  they  held  the  deed  not  to  be  the  deed  of 
Jonathan.  Now,  when  we  advert  to  the  deed  under  consideration,  we 
find  the  case  of  Elwell  v.  Shaw  a  much  stronger  one  than  the  present. 
There  the  attorney  professing  to  set  the  name  and  seal  of  the  principal, 
set  a  seal,  but  signed  his  own  name.  Here  the  attorney  did  not  even 
profess  to  set  the  name  or  seal  of  the  principal,  but  professedly  as  well 
as  actually,  set  his  own.  It  has  indeed  been  intimated  in  argument 
that  the  case  of  Elwell  v.  Shaw  is  an  extreme  one,  bordering  at  least 
exceedingly  near  on  the  line.  Be  it  so.  All  cases  bordering  exceed- 
ingly near  on  the  line  are  extreme  cases.  We  do  not  rest  the  decision 
of  this  cause  upon  that  case  merely,  however  safely  we  might  do  so,  but 
upon  well-settled  and  established  principles  in  other  cases  which  have 
been  too  long  and  too  often  recognized  to  be  now  called  in  question. 
Applying  those  principles  to  the  case  at  bar  we  are  of  opinion  that  the 
deed  in  question  is  not  the  deed  of  the  Pejepscot  proprietors. 

This  is  not  the  case  of  a  deed  good  in  point  of  form  but  void  for 
want  of  power  in  the  person  assuming  to  act  as  attorney.  In  such  a 
case,  whether  the  attorney  is  bound  by  the  instrument  itself,  or  only 
responsible  in  an  action  on  the  case,  it  is  not  necessary  for  us  now  to 


SECT.  II.]  STINCHFIELD   V.    LITTLE.  589 

consider.  For  the  purpose  of  this  inquiry,  and  in  the  form  in  which 
the  question  is  presented  for  consideration,  it  is  granted  that  Little  had 
suflicient  authority-  to  bind  the  Pejepscot  proprietors.  If  he  had,  prop- 
erly exercised  the  powers  confided  to  him,  it  will  be  readily  admitted 
he  could  not  have  been  made  personally  responsible  whatever  injury  the 
plaintiff  might  have  suffered  for  any  breach  of  the  covenants  contained 
in  the  deed.  It  would  then  have  been  the  deed  of  the  Pejepscot  pro- 
prietors and  not  Little's ;  whereas  as  the  case  now  stands,  it  is  not 
their  deed,  but  his  own.  Thus  C.  J.  Parker,  in  Stackpole  v.  Arnold, 
11  Mass.  27,  "  It  is  also  held  that,  whatever  authority  the  signer  may 
have  to  bind  another,  if  he  does  not  sign  as  agent  or  attorney,  he  binds 
himself  and  no  other  person."  See  also  Mahew  v.  Prince,  id.  54. 
So  in  Afridson  v.  Ladd,  12  Mass.  173.  "It  is  not  sufficient  that  a  per- 
son, in  order  to  discharge  himself  from  a  promise  in  writing,  should 
show  that  he  was  in  fact  the  agent  of  another,  but  it  should  be  made  to 
appear  that  he  treated  as  agent,  and  actually  bound  his  principal  by  the 
contract."  Nor  is  it  sufficient  that  the  agent  describe  himself  in  the 
deed  or  contract,  as  acting  for,  and  in  behalf,  or  as  attorney  of  the  prin- 
cipal, or  as  a  committee  to  contract  for,  or  trustees  of  a  corporation, 
&c. ;  for  if  he  do  not  bind  his  principal,  but  set  his  own  name  and  seal, 
such  expressions  are  but  designatio  personce^  —  it  is  his  own  act  and 
deed,  and  he  is  bound  personally'.  Fowler  ?'.  Shearer,  supra;  Appleton 
V.  Binks,  5  East,  148  ;  Tippets  v.  Walker,  4  Mass.  595  ;  Tucker  v. 
Bass,  5  Mass.  164  ;  Taft  r.  Brewster,  9  Johns.  334.  See  also  Thacher 
V  Dinsmore,  5  Mass.  299  ;  Barry  v.  Rush,  1  D.  &  E.  691  ;  Sumner  i\ 
Williams,  8  Mass.  162;  Long  v.  Colburn,  11  Mass.  97.  Besides,  since 
the  deed  cannot  propria  rigor e  operate  as  the  deed  of  the  Pejepscot 
proprietors,  the  last  clause  of  it  might  well  be  considered,  perhaps,  as 
is  contended  by  the  plaintiffs  counsel,  under  a  fair  construction  of  it, 
the  personal  covenant  of  the  defendant  that  the  Pejepscot  proprietors 
should  acknowledge  that  instrument  to  be  good  and  valid,  and  equally 
obligator}'  on  them,  as  though  it  were  their  own  act  and  deed.  See 
Mann  v.  Chandler,  8  Mass.  335  ;  Appleton  '•.  Binks,  and  Tippets  v. 
Walker,  $up>ra.  But  without  resorting  to  such  construction,  we  are  of 
opinion  that  the  deed  is  the  deed  of  Josiah  Little  the  defendant ;  and 
accordingl}'  the  nonsuit  is  set  aside,  and  a 

Neic  trial  granted} 

*  Ace:  Stone  i;.  Wood,  7  Cow.  453  (1827).  — Ed. 


590  HOPKINS    V.    MEHAFFY.  [CHAF.  IV 


HOPKINS  V.  MEHAFFY. 

Supreme  Court  of  Pennsylvania,  1824. 

[11  5.  <^  R.  126.] 

This  was  a  writ  of  error  to  the  District  Court  for  the  cit}-  and  county 
of  Lancaster,  in  an  action  brought  by  Joseph  Hopkins  against  Jolin 
Mehaffy,  upon  the  following  sealed  instrument :  — 

"  Articles  of  agreement,  made  and  agreed  upon  this  nineteentli  day 
of  October,  a.  d.,  one  thousand  eight  hundred  and  thirteen,  between  the 
president,  managers,  and  company'  of  the  Manchester  turnpike  road  of 
the  one  part,  and  Joseph  Hopkins,  of  the  borough  of  Marietta,  Lancas- 
ter count}',  and  state  of  Pennsylvania,  of  the  other  part,  witnessoth  ; 
that  the  said  Joseph  Hopkins,  for  and  in  consideration  of  the  covenants 
hereafter  mentioned,  on  the  part  of  the  president,  managers,  and  com- 
pany of  the  said  road,  doth  by  these  presents  for  himself,  his  heirs, 
executors,  and  administrators,  covenant  and  agree,  to  and  with  the  said 
president,  managers,  and  compan}',  their  successors  and  assigns,  that 
he,  the  said  Joseph  Hopkins,  will  at  or  before  the  first  day  of  March 
next  ensuing,  make  and  finish,  in  a  complete,  substantial,  and  workman- 
like manner,  the  mason  work  of  the  bridge  across  the  Conowago  gut  on 
said  road,  at  such  place  as  the  said  president,  managers,  and  company 
ma}'  direct,  and  agreeably  to  the  plan  laid  down  for  the  same  ;  and  find 
all  the  materials  requisite  for  building  the  same  ;  all  the  stone  work  to 
be  done  without  mortar ;  and  have  the  two  piers  done  on  or  before  the 
first  day  of  February  next.  And  the  said  president,  managers,  and 
company  of  the  Manchester  turnpike  road,  covenant  and  agree,  to  and 
with  the  said  Joseph.  Hopkins,  his  executors  and  administrators,  that 
the  said  president,  managers,  and  company  will  pay,  or  cause  to  be 
paid,  to  the  said  Joseph  Hopkins,  his  executors  and  administrators,  for 
and  in  consideration  that  he  shall  make  the  mason  work  of  said 
bridge  complete,  and  in  a  workmanlike  manner,  agreeably  to  the  plan 
laid  down  for  the  same,  at  or  before  the  time  above-mentioned  and 
agreed  upon,  the  sum  of  one  dollar  and  seventy-five  cents  for  every 
perch  of  mason  work  done,  of  mason  measurement,  as  follows  ;  viz., 
five  hundred  dollars  thereof  as  soon  as  the  two  piers  are  finished,  and 
the  remainder  as  soon  as  he  has  the  work  completed  as  aforesaid.  And 
for  the  true  and  faithful  performance  of  all  and  singular  the  covenants, 
agreements,  and  stipulations  in  these  presents  contained,  the  parties 
hereto  bind  themselves,  each  to  the  other,  in  the  penal  sum  of  two 
thousand  dollars,  lawful  money  of  Pennsylvania.  In  witness  whereof, 
the  said  parties  to  these  presents  have  hereunto  interchangeably  set 
their  hands,  and  aflSxed  their  seals,  the  day  and  year  first  within 
written. 

"  .James  Mehafft.       (seal.) 
"  Joseph  Hopkins,      (seal.) 


SECT.  II. J  HOPKINS   V.    MEHAFFY.  591 

"  Signed  by  the  president,  in  behalf  of  the  president  and  managers  of 
the  Manchester  turnpiiie  roud,  and  by  Joseph  Hopkins,  on  his  part,  in 
presence  of  William  Child." 

The  defendant  pleaded  payment,  with  leave,  &c.  ;  but  on  the  trial 
altered  his  plea  to  non  est  factum^  by  the  leave  of  the  court,  and 
against  the  consent  of  the  plaintiff's  counsel. 

The  errors  assigned,  on  the  return  of  the  record  to  this  court,  were  :  — 

1.  Tliat  the  court  permitted  the  plea  to  be  altered  on  the  trial,  which 
Hopkins,  for  the  plaintiff  in  error,  denied  their  right  to  do. 

2.  That  the  court  instructed  tlie  jury  that  a  suit  could  not  be  supported 
against  the  defendant  on  the  agreement  above  stated. 

Gibson,  J.  I  cannot  acquiesce  in  the  law  as  laid  down  in  some  of  the 
cases  which  have  been  cited.  In  general,  it  is  true  that  there  is  a  dis- 
tinction between  contracts  that  are  entered  into  on  the  part  of  govern- 
ment, b}^  its  agents,  and  those  which  are  entered  into  on  the  part  of 
individuals  or  corporations  by  those  who  represent  them.  In  respect  of 
the  first  it  may  safely  be  asserted  that  whether  tlie  contract  be  by  parol 
or  by  deed,  the  public  faith  is  exclusively  relied  on,  whenever  the  agent 
does  not  specially  render  himself  liable.  In  respect  of  the  second, 
where  the  contract  is  by  parol,  the  agent  is  liable  only  where  he  had  no 
authority  to  bind  his  principal ;  but  the  agent  of  an  individual  or 
corporation,  covenanting  under  his  seal,  for  the  act  of  his  principal, 
although  he  describe  himself  as  contracting  for  and  on  behalf  of  his 
principal,  is  liable  on  his  express  covenant,  whether  he  had  the  authority' 
of  the  person  whom  he  thus  professes  to  bind  or  not.  The  law  is  thus 
broadly  laid  down  by  Mr.  Chitty,  in  his  treatise  on  pleading,  page  24, 
and  the  autliorities  which  be  cites  full}-  bear  him  out ;  to  which  ma}'  be 
added  Tippets  v.  Walker,  4  Mass.  Rep.  595.  It  is  somewhat  remark- 
able that  the  distinction  between  a  parol  and  a  sealed  contract  was  not 
taken  in  Randal  v.  Vanvechten,  19  Johns.  60,  and  that  the  authorities 
cited  to  prove  that  an  agent  who  personally  covenants  in  behalf  of  his 
principal,  is  liable  onl}'  in  the  event  of  there  being  no  recourse  to  the 
principal,  directl}'  prove  the  reverse.  There  is  a  class  of  cases  referred 
to  which  have  nothing  to  do  with  the  question.  I  mean  those  cases 
where  the  defendant  undertakes  to  covenant  for  others,  as  well  as  him- 
self; and  there  it  is  settled,  that  if  he  has  no  authority  to  bind  the 
others,  he  is  nevertheless  bound  himself;  not  that  he  incurs  an  eventual 
liability  in  consequence  of  the  others  being  discharged,  but  he  remains 
bound  as  he  was  originally,  the  instrument  being  his  several  deed.  It 
is  unnecessary,  therefore,  to  inquire  whether  the  plaintiff  might  have  an 
action  of  assumpsit  against  the  principal,  in  consequence  of  the  existence 
of  a  parol  authority  to  the  agent  to  enter  into  the  contract,  because, 
whether  he  may  or  not,  the  agent  is  liable  on  his  express  covenant. 
But  there  is  a  striking  and  substantial  difference  between  the  covenant 
of  an  agent  who  describes  himself  as  contracting  for  his  principal,  and 
the  covenant  of  a  principal,  through  the  means,  and  by  the  instrumen- 
tality, of  an  agent.     The  first  is  the  individual  covenant  of  the  agent, 


592  HOPKINS    v.    MEHAFFY.  [CHAP.  IV. 

the  second  is  the  individual  covenant  of  the  principal ;  and  in  this 
respect  the  case  at  bar  differs  from  Randal  v.  Vanvechten,  in  which  the 
distinction  seems  not  to  have  been  adverted  to.  No  decision  can  be 
found  in  support  of  the  position  that  what  appears  on  the  face  of  the 
deed  to  be  the  proper  covenant  of  the  principal,  but  entered  into 
through  the  agency  of  an  attorney  (which,  by-the-bye,  is  the  legitimate 
form  of  the  instrument  where  the  attorney'  is  not  to  be  bound),  shall  be 
taken  to  be  the  proper  covenant  of  the  attorne}",  wherever  he  had  not 
authoiity  to  execute  the  deed.  How  could  he  be  declared  against?  If 
in  the  usual  and  proper  manner  of  pleading  it  were  alleged  that  the 
agent  had  covenanted,  it  would  appear  bj'  the  production  of  the  instru- 
ment that  he  had  not,  but  that  his  principal  had  covenanted  through  his 
means  ;  which,  on  non  est  factum  being  pleaded,  would  be  fatal.  This 
is  precisely  the  case  before  us,  except  that  it  is  not  quite  so  strong.  In 
the  body  of  the  instrument  the  covenants  are  stated  as  if  the3'  were 
made  b}'  the  corporation  directly  with  the  plaintiff,  without  the  agenc}' 
of  any  one,  the  defendant  not  being  named,  but  merely'  signing  and 
sealing  it  with  his  own  seal  as  the  deed  of  the  corporation,  which  I 
readily  admit  it  is  not.  Now  to  avoid  the  difficulty  which  I  have  just 
mentioned,  the  plaintiff,  in  declaring,  does  not  in  the  usual  way  set 
forth  the  substance  of  the  covenants,  but  alleges  that,  by  certain  articles 
of  agreement  between  the  parties,  it  was  covenanted  "as  follows;" 
and  then  sets  out  the  articles  according  to  their  tenor,  assigning  for 
breach  that  the  defendant  had  not  paid,  &c.  A  demurrer  would  un- 
questionabl}'  have  answered  the  purpose  as  well  as  the  plea  of  non  est 
factum,  for  the  declaration  sets  forth  no  covenant  of  the  defendant,  and 
consequently  no  cause  of  action.  But  the  paper  is  not  the  defendant's 
deed.  He  sealed  and  delivered  it  undoubtedly  ;  but  there  is  something 
more  than  sealing  and  delivering  necessary  to  a  deed.  It  ought  to 
contain  the  proper  parts  of  a  contract ;  and  in  this  instrument  there  are 
no  obligatory  words  applicable  to  the  person  of  the  defendant.  Even 
the  sealing  and  delivery  were  as  the  president,  and  in  behalf  of  the 
corporation.  If  the  defendant  had  authority  to  contract  for  the  corpora- 
tion, although  he  has  done  so  informally,  there  cannot  be  a  doubt,  that 
as  the  work  has  been  done,  the  plaintiff  may  have  an  action  of  some 
sort  against  it.  But  he  never  treated  on  the  basis  of  the  defendant 
being  personally  answerable  ;  and  to  permit  him  to  maintain  this  action 
would  permit  him  to  have,  what  was  not  in  the  contemplation  of  either 
party,  recourse  to  the  person  of  the  agent.  I  am  therefore  of  opinion 
that  the  judge  who  tried  the  cause  was  right  in  directing  the  jury  that 
the  paper  given  in  evidence  was  not  the  deed  of  the  defendant.  In 
regard  of  the  other  error  assigned,  little  need  be  said.  Under  the  act 
of  assembly,  a  defendant  may  change  his  defence  after  the  jur3'  has 
been  impanelled,  as  a  matter,  not  of  indulgence,  but  of  right,  and  in 
this  also  there  is  no  error.  Judgment  affirmed.'^ 

1  Ace. :  Abbey  v.  Chase,  6  Cush.  54  (1850),  where,  at  p.  56,  Metcalf,  J.,  said :  "  In 
deciding  whether  the  defendant  has  or  has  not  bound  himself,  we  need  not  decide 


SECT.  II.]  BRINLEY    V.    MANN.  593 


BRINLEY    AND   ANOTHER  V.    MANN. 

Supreme  Judicial  Court  of  Massachusetts.     1848. 

[2  Cash.  337.] 

This  was  a  writ  of  entry,  for  the  recovery  of  certain  real  estate  in 
Dedliam,  which  was  tried,  on  the  general  issue,  before  Forbes,  J.,  to 
whose  rulings  and  instruction  —  a  verdict  being  rendered  for  the  de- 
mandants—  the  tenant  excepted. 

The  demandants  gave  in  evidence  a  judgment  rendered  in  their 
favor,  in  the  Court  of  Common  Pleas  for  this  county,  against  tlie  New 
England  Silk  Company,  a  corporation  legally  established  ;  an  execution 
issued  in  pursuance  thereof  dated  September  2,  1845  ;  and  a  levy, 
appraisement,  and  other  proceedings  returned  thereon  ;  from  which  it 
appeared,  that  the  officer,  by  whom  the  execution  was  served,  on  the 
11th  of  September,  1845,  seized  thereon  seven  thirty-second  parts  of 
the  demanded  premises  ;  that  further  proceedings  in  the  lev}*  were  sus- 
pended until  the  10th  of  October,  1845,  when  the  lev^'  was  completed, 
and  seven  thirty-second  undivided  parts  of  the  demanded  premises  were 
assigned  to  the  demandants,  in  part  satisfaction  of  their  judgment. 

The  tenant  objected,  that  it  did  not  appear,  that  the  levy  of  the 
execution  was  completed  in  due  season,  after  it  was  commenced ; 
whereupon  the  demandants  gave  evidence  showing  that  the  same 
premises  were  attached  on  the  17th  of  June,  1845,  on  a  writ  in  favor  of 
other  creditors,  on  which  judgment  was  subsequently  obtained,  and  an 
execution  issued,  which  was  levied  on  an  undivided  part  of  the  premises, 
on  the  1st  of  October,  1845. 

The  demandants  also  gave  in  evidence  a  judgment  recovered  by 
them  against  the  New  England  Silk  Company,  in  the  Court  of  Common 
Pleas  for  the  county  of  Suffolk,  and  an  execution  issued  thereon,  upon 
which  seven  one  hundred  and  fiftieth  parts  of  the  demanded  premises 
were  seized  and  assigned  to  the  demandants,  December  17,  1845,  in 
part  satisfaction  of  such  execution. 

In  both  these  levies,  the  appraisers  certified  (their  certificates  were 
made  part  of  the  return)  that,  finding  the  premises  incapable  of  division, 
they  had  appraised  the  undivided  parts  set  off  by  them,  in  each  case,  at 
the  several  sums  at  which  they  were  so  assigned,  but  they  did  not 
otherwise  report  the  entire  value  of  the  whole  estate.     The  tenant 

whether  he  has  or  has  not  bound  the  company.  For  it  does  not  necessarily  follow  that  a 
contract,  made  by  an  autliorized  agent,  which  does  not  bind  the  principal,  becomes  the 
agent's  contract,  and  makes  him  answerable  if  it  is  not  performed.  This  depends  upon 
the  legal  effect  of  the  terms  of  the  contract.  If  the  agent  employs  such  terms  as  legally 
import  an  undertaking  by  the  principal  only,  the  contract  is  the  principal's,  and  he 
alone  is  bound  by  it.  But  if  the  terms  of  the  contract  legally  import  a  per.-<onal  under- 
taking of  the  agent,  and  not  of  the  principal,  then  it  is  the  contract  of  the  agent,  and  he 
alone  is  answerable  for  a  breach  of  it."  —  Ed. 

38 


594  BRINLEY   V.    MANN.  [CHAP.  IV. 

objected  to  the  levies,  because  the  appraisers  did  not  report  the  entire 
value  ;  but  the  objection  was  overruled. 

The  tenant  thereupon  produced  the  evidence,  upon  which  he  relied  to 
show  his  title  in  the  demanded  premises,  from  which  it  appeared  that 
Christopher  Colt,  Jr.,  treasurer  of  the  New  England  Silk  Company, 
acting  under  the  supposed  authority  of  certain  votes  of  the  compau}', 
conveyed  the  demanded  premises,  before  the  seizure  thereof  on  execu- 
tion as  above  mentioned,  by  deeds  of  mortgage  and  quitclaim,  to  James 
B.  Colt,  from  whom,  by  intermediate  conveyances,  the  estate  came  to 
the  tenant. 

The  demandants,  among  other  objections  to  the  evidence  on  the  part 
of  the  tenant,  not  necessary  to  be  stated,  objected  to  the  validity  of  the 
deeds  to  James  B.  Colt. 

The  formal  parts  of  one  of  the  deeds,  to  which  the  objection  referred, 
are  as  follows  :  — 

"Know  all  men  b}'  these  presents,  that  tlie  New  England  Silk  Com- 
pany, a  corporation  legally  established,  b}'  Christopher  Colt,  Jr., 
their  treasurer,  of  Dedham,  &c.,  in  consideration,  «&;c.,  do  hereb}'  give, 
grant,  sell,  and  convey,"  &c. 

"  In  witness  whereof,  I,  the  said  Christopher  Colt,  Jr.,  in  behalf  of 
said  compan}',  and  as  their  treasurer,  have  hereunto  set  m}'  hand  and 
seal,  this,"  &c.  [Signed  and  sealed]  "Christopher  Colt,  Jr.,  Treasurer 
of  New  England  Silk  Company." 

The  certificate  of  acknowledgment  stated  that  "  Christopher  Colt, 
Jr.,  treasurer,  &c.,  acknowledged  the  above  instrument  to  be  his  free 
act  and  deed." 

In  the  other  deed  Christopher  Colt,  Jr.,  describes  himself,  in  the 
concluding  recital,  as  "treasurer  of  the  New  England  Silk  Company, 
and  duly  authorized  for  that  purpose;"  and,  in  the  certificate  of 
acknowledgment  it  is  stated  that,  "  in  his  said  capacity,"  he  acknowl- 
edged the  instrument  to  be  his  free  act  and  deed. 
D.  A.  Simmons,  for  the  tenant. 
J.  J.  Clarke,  for  the  demandants. 

Metcalf.  J.  The  demanded  premises  were  formerly  the  property 
of  the  New  England  Silk  Company,  a  body  corporate,  and  the  demand- 
ants claim  title  thereto  under  levies  of  two  executions  against  that 
company.  We  see  no  valid  objection  to  either  of  those  levies.  The 
delay  in  completing  the  levy  of  the  first  execution  was  warranted  by  the 
Rev.  Sts.  c.  97.  The  appraisement  of  the  undivided  fractional  part  of 
the  estate,  which  was  set  off  on  the  second  execution,  was  all  that  the 
law  required  of  the  appraisers.  The  objections  to  these  levies  were 
therefore  rightly  overruled  by  the  judge  at  the  trial,  and  he  rightly 
instructed  the  jury  that  the  demandants  had  a  prima  facie  title  to  the 
premises  demanded  in  this  suit. 

The  tenant  also  claims  title  under  the  Silk  Company,  through  two 
deeds  made  to  James  B.  Colt  before  the  demandants  levied  upon  or 
attached  the  demanded  premises,  and  a  deed  from  Colt  to  Humi)hrey, 


SECT,    ri]  RHIXLEY   V.    MANN.  595 

wlio  was  the  tenant's  immediate  grantor.  On  examining  the  deeds  to 
Colt,  we  are  of  opinion  that  they  conveyed  no  title  to  him.  It  is  a  rule 
of  conveyancing,  long  established,  that  deeds  which  are  executed  b}'  an 
attorney  or  agent,  must  be  executed  in  the  name  of  the  constituent  or 
principal.  In  Combes'  Case,  9  Co.  76  b.,  it  was  resolved  ''  that  when 
any  lias  autliority,  as  attorney,  to  do  any  act,  he  ought  to  do  it  in  his 
name  who  gives  the  authorit}" ;  for  he  appoints  the  attorney  to  be  in 
his  place,  and  to  represent  his  person  ;  and  therefore  the  attorney  can- 
not do  it  in  his  own  name,  nor  as  his  proper  act,  but  in  tlie  name  and 
as  the  act  of  him  who  gives  the  authorit}-."  And  in  Fowler  v.  Sliearer, 
7  Mass.  19,  Parsons,  C.  J.,  says,  "  It  is  not  enough  for  the  attorney, 
in  the  form  of  the  conveyance,  to  declare  that  he  does  it  as  attorney ; 
for  he  being  in  the  place  of  the  principal,  it  must  be  the  act  and  deed  of 
the  princii)ul,  done  and  executed  by  the  attorney  in  his  name."  This 
doctrine,  which  was  applied  in  Elwell  v.  Shaw,  IG  Mass.  42,  and  in 
other  cases  cited  b}*  the  demandants'  counsel,  and  also  in  Berkele}-  v. 
Hardy,  8  Dowl.  &  Ryl.  102,  must  be  applied  to  tlie  deeds  now  before 
us.  Both  of  these  deeds  were  executed  b}-  C.  Colt,  Jr.,  in  his  own 
name,  were  sealed  with  his  seal,  and  were  aclvnowledged  b}-  him  as  his 
acts  and  deeds.  In  one  of  them,  it  is  true,  he  declared  that  he  acted  in 
behalf  of  the  company,  and  as  their  treasurer ;  and  in  the  other  he 
declared  himself  to  be  their  treasurer  and  to  be  duly  authorized  for  the 
purpose  of  executing  it.  But  this,  as  we  have  seen,  was  "  not  enough." 
He  should  have  executed  the  deeds  in  the  name  of  the  company.  He 
should  also  have  affixed  to  them  the  seal  of  the  compan}-,  and  have 
acknowledged  them  to  be  the  deeds  of  the  compan}'.  1  Crabb  on  Real 
Property,  §§  703,  705  ;  4  Kent  Com.  (3d  ed.)  451  ;  Stinchfield  v.  Little, 
1  Greenl.  231  ;  Savings  Bank  v.  Davis,  8  Connect.  191  ;  3  Stewart  on 
Conveyancing,  189.  If  the  deeds  had  been  rightly  executed  in  other 
respects,  the  seal  which  C.  Colt,  Jr.,  affixed  to  each  of  them  (namel3', 
a  wafer  and  a  paper,  without  any  stamp  or  impression)  might  have 
been  regarded  as  the  seal  of  the  compan}',  according  to  the  decisions 
in  Mill  Dam  Foundery  v.  Hovey,  21  Pick.  417,  and  Reynolds  v.  Glasgow 
Academy,  6  Dana.  37. 

The  case  of  Warner  v.  Mower,  11  Vt.  385,  cited  by  the  tenant's 
counsel,  was  decided  upon  a  statute  of  Vermont,  which  authorizes  cer- 
tain corporations  to  convey  real  estate  by  a  deed  of  their  president^ 
sealed  with  his  seal.  The  court,  in  that  case,  admitted  that  "•  the  form 
of  the  deed,  at  common  law,  would  not,  probably,  be  considered  good." 

As  nothing  passed  to  James  B.  Colt  by  the  deeds  of  October,  1844^ 
and  June,  1845,  he  could  not  convey  any  title  to  Humphrey,  nor 
Humphrey  to  the  tenant.  We  therefore  need  not  examine  the  other 
objections  to  the  tenant's  title,  which  were  raised  and  argued  by  the 
counsel  for  the  demandants. 

Judgment  on  the  verdict* 


596  THE    NORTHWESTERN    DISTILLING   CO.    V.    BRANT.        [cHAP.  IV. 


THE   NORTHWESTERN  DISTILLING  COMPANY  v.  BRANT. 
Supreme  Court  of  Illinois.     1873. 

[69  ///.  658-1 

Appeal  from  the  Circuit  Court  of  Cook  county ;  the  Hon.  John  G. 
Rogers,  Judge,  presiding. 

Messrs.  Upton,  BouteU  &  Watermayi,  for  tlie  appellant. 

Messrs.  Brinulf  ct  Hoffman,  for  the  appellee. 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  Court:  — 

This  was  an  action  of  covenant  brought  by  Brant  against  The  North- 
western Distilling  Company',  to  recover  for  not  restoring  certain  prem- 
ises in  as  good  order  as  when  it  received  them  ;  the  action  being  founded 
upon  a  lease  commencing  as  follows  :  '•'  This  indenture,  made  this  17th 
da}'  of  April,  a.  d.  1869,  between  Daniel  R.  Brant,  of  the  cit}'  of 
Chicago,  party  of  the  first  part,  and  Edward  F.  Lawrence,  president  of 
the  Northwestern  Distilling  Company,  of  the  same  place,  party  of  the 
second  part."  Throughout,  the  parties  are  mentioned  as  of  the  first  or 
second  part,  and  the  pronouns  he,  his,  or  him  are  everywhere  used  in 
referruig  to  the  party  of  the  second  part. 

The  covenant  to  restore  the  premises  in  good  condition,  for  the 
alleged  breach  of  which  the  action  is  brought,  is :  "  And  the  said  party 
of  the  second  part  further  covenants  with  the  said  part}-  of  the  first 
part,  that,  at  the  expiration  of  the  term,  he  will  yield  up  the  demised 
premises  to  the  said  party  of  the  first  part  in  as  good  condition  as  when 
the  same  were  entered  upon  by  the  said  party  of  the  second  part,"  &c. 
It  concludes,  "  In  testimony  whereof  the  said  parties  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written,"  and  is 
signed  and  sealed : 

"D.  R.  Brant,  [seal.] 

"  Northwestern  Distilling  Co.,     [seal.] 

"  By  Edward  Lawrence,  President." 

The  plaintiff  recovered  in  the  court  below,  and  the  defendant  ap- 
pealed. 

The  sole  question  presented  by  the  record  is,  whether  an  action  of 
covenant  lies  against  the  company  on  this  lease.  The  whole  argument 
for  the  appellant  turns  upon  an  assumption  of  fact,  that  the  covenant 
was  made  by  Lawrence,  which  we  do  not  consider  was  well  founded. 
And  on  that  assumption,  it  is  insisted,  that  it  cannot  be  shown,  as  has 
been  done  by  the  declaration  and  proof,  that  the  company  intended  to 
make  the  covenant ;  that  that  can  only  be  done  upon  an  application  to 
a  court  of  equity  to  reform  the  contract.  The  only  circumstance  which 
raises  any  difficulty  is,  that  in  the  commencement  of  the  lease,  Law- 
rence, president  of  the  company,  is  described  as  the  party  of  the  second 
part,  and  the  covenant  is  by  "  the  said  party  of  the  second  part."  The 
contract,  as  claimed,  is  one  made  by  a  corporation,  which  can  act  only 


SECT.  II.]       THE    NORTHWESTERN    DISTILLING   CO.    V.    BRANT.  597 

by  its  agents  ;  and  it  is  apparent  upon  the  face  of  the  instrument,  that 
Lawrence  does  not  act  individually,  but  as  president  of  the  company 
for  the  company. 

Had  he  executed  the  instrument  in  his  own  name  for  the  company, 
it  would  have  been  a  good  execution  by  the  company.  Wilks  et  <d.  v. 
Back,  2  East,  142;  Mussey  v.  Scott,  7  Cush.  21G.  The  conclusion  of 
a  lease,  as  well  as  its  commencement,  may  be  looked  to  for  the  descrip- 
tion of  the  parties  ;  the  conclusion  describes  them  to  be  those  persons 
who  have  sot  their  hands  and  seals  to  tlie  instrument,  and  it  is  the  sig- 
nature and  seal  of  the  Northwestern  Distilling  Company  which  are  set 
thereto,  not  those  of  Lawrence.  In  action  on  a  sealed  instrument 
which,  in  its  commencement  described  Sebre  Howard  and  Hiram 
Howard  as  party  of  the  first  part,  but  which  was  signed  by  Sebre 
Howard  alone,  and  suit  was  brought  thereon  by  him  alone,  and  objec- 
tion made  that  Hiram  should  have  joined  in  the  action,  the  Supreme 
Court  of  the  United  States  say  :  "  The  descriptive  words  in  the  prem- 
ises of  the  deed  declare  Sebre  and  Hiram  Howard  to  be  the  party  of 
the  first  part;  but  inasmuch  as  Hiram  did  not  seal  the  deed,  he  never 
in  truth  became  a  party  to  the  instrument.  He  entered  into  no  cove- 
nant contained  in  it.  The  truth  is,  the  descriptive  words  are  controlled 
by  the  decisive  fact  that  Hiram  did  not  seal  the  deed."  Phil.,  Wilm. 
and  Bait.  R.  R.  v.  Howard,  13  How.  337. 

The  last  observation  applies  with  force  to  the  present  case.  Where 
a  deed  is  made  to  a  corporation  by  a  name  varying  from  the  true 
name,  the  plaintiffs  may  sue  in  their  true  name,  and  aver  in  the  declara- 
tion that  the  defendant  made  the  deed  to  them  by  the  name  mentioned 
in  the  deed.  The  New  York  African  Society,  etc.  v.  Varick  et  al.,  13 
Johns.  39.  This  court  has  frequently  held,  that  where  a  person  exe- 
cuting an  instrument  under  seal  is  described  therein  b}-  a  different  name, 
an  action  may  be  maintained  against  him  upon  the  instrument,  upon 
averring  in  the  declaration  and  making  proof  that  he  executed  the 
instrument,  but  was  described  therein  by  the  name  there  appearing. 
O'Brien  v.  The  People,  41  111.  456  ;  Garrison  v.  The  People,  21  id.  535  ; 
Graves  v.  The  People,  11  id.  542.  The  averments  and  proof  here 
sufBcientl}'  meet  the  requirements  in  those  respects,  and  full}'  show 
that  the  lease  was  actually  made  to  the  distilling  company. 

In  the  case  of  Douglass  et  al.  v.  The  Branch  Bank  at  Mobile,  19  Ala. 
659,  a  lease  in  the  bod}'  of  it  purported  to  be  made  by  Henry  B.  Hol- 
combe,  assistant  commissioner  of  the  Branch  Bank  of  the  State  of 
Alabama,  at  Mobile,  and  was  signed  by  the  corporation,  as  in  this 
case ;  an  action  on  the  lease  in  the  name  of  the  corporation  was  sus- 
tained ;  and  see  Eastern  R.  R.  Co.  v.  Benedict  et  al.,  5  Gra}',  561,  as  to 
the  rule  in  respect  to  unsealed  instruments. 

We  are  of  opinion  that  the  action  in  the  present  case  was  well 
brought  against  the  Northwestern  Distilling  Company,  and  the  judg- 
ment is  affirmed.  Judgment  affirmed. 


598  BKADSTKEET   V.    BAKER.  [CHAP.  IV. 


BRADSTREET  et   al.  v.  BAKER  et  al. 

Supreme  Court  of  Rhode  Island.     1884. 

[14  R.  I.  546.] 

Covenant.     On  demurrer  to  the  pleas. 

Jul}'  12,  1884.  Durfee,  C.  J.  This  is  an  action  of  covenant  broken. 
The  covenant,  if  valid,  is  a  covenant  by  which  the  defendants  bound 
themselves  to  receive  from  the  plaintiffs,  dealers  in  ice,  and  copartners 
under  the  firm  of  the  Centennial  Ice  Company,  at  Pittston,  Maine,  be- 
tween June  1,  1878,  and  Oct.  1,  1878,  five  thousand  tons  of  ice,  and 
to  pay  them  for  it  at  the  rate  of  one  and  one  half  dollars  per  ton,  and 
to  paj-  in  full  in  cash  at  said  rate  for  all  the  ice  remaining  unshipped 
Oct.  1,  1878,  the  ice  so  remaining  to  be  the  propert}'  of  the  plaintiffs. 
The  defendants  made  default  by  not  receiving,  though  the  plaintiffs 
were  read}'  to  deliver,  the  ice  according  to  tlie  contract.  The  plaintiffs 
sue  for  damages,  claiming  the  stipulated  price  of  the  five  thousand  tons 
as  liquidated  damages.  The  defence  is  :  first,  that  the  defendants  are 
not  bound  because  the  plaintiffs  were  not  bound  by  the  covenant,  the 
obligations  thereof  being  mutual  or  dependent ;  and  second,  that  the 
plaintiffs  can  recover  only  their  actual  damages,  the  stipulated  damages 
being  manifestly  designed  as  a  penalty. 

The  first  question  is  :  Did  the  plaintifl^s  bind  themselves  b}'  the  cov- 
enant? The  contract  was  not  executed  by  the  plaintiffs  in  person,  but 
it  was  negotiated  for  them  and  signed  by  their  agent,  J.  S.  Bradstreet, 
who  had  a  sufficient  power  of  attorney  under  seal.  The  contract  begins 
thus  :  "  Agreement  made  this  fifteenth  day  of  Februaiy,  1878,  between 
the  Centennial  Ice  Company,  of  Pittston,  Me.,  party  of  the  first  part, 
by  J.  S.  Bradstreet,  agent,  and  Joseph  K.  Baker,  of  Dennisport,  Mass., 
and  E.  C.  Baker,  of  Providence,  R.  I.,  parties  of  the  second  part,  wit- 
nesseth."  The  stipulations  contained  in  the  body  of  the  instrument 
purport  to  be  stipulations  between  "the  said  party  of  the  first  part" 
and  "  the  said  parties  of  the  second  part,"  no  names  being  given.  It 
concluded  as  follows,  to  wit :  — 

"In  witness  whereof  the  parties  have  hereunto  aflSxed  their  hands 
and  seals  the  year  and  day  first  above  written. 

(Signed)  "  J.  S.  Bradstreet,  ^^m^,      [l.  s.] 

"J.  K.  Baker,  [u.  s.] 

"E.G.Baker,  [l.  s.]" 

The  defendants  contend  that  the  execution  was  ineffectual  because 
the  instrument  does  not  contain  the  signatures  of  tlie  party  of  the  first 
part  by  their  agent,  but  only  the  signature  of  the  agent  himself  Un- 
doubtedly in  the  execution  of  a  deed  by  an  agent  the  most  approved 
form  is  for  the  agent  to  sign  the  name  of  liis  principal,  writing  his  own 
name  below,  with  the  word  "agent"  following,  and  the  preposition 
"by"  preceding  it.     See  Citv  of  Providence  v.  Miller,  11  R.  I.  272, 


SECT.  II.]  BRADSTREET   V.    BAKER.  599 

277,  and  cases  there  eited.  But  the  form  is  not  material  provided  it 
appears  on  the  face  of  the  instrument  that  the  deed  was  executed  b^' 
the  principal  acting  through  his  agent  and  not  by  the  agent  himself. 
In  Wilks  V.  Back,  2  East,  142,  an  arbitration  bond  was  given  by 
Mathias  Wilks  for  himself,  and  under  a  power,  for  his  copartner  James 
Browne.  The  signatures  were  affixed  as  follows,  to  wit:  "Mathias 
Wilks,  [l.  s.]."  "For  James  Browne,  Mathias  Wilks,  [l.  s.]."  The 
Court  of  King's  Bench  decided  that  the  execution  was  good.  "  Here 
the  bond  was  executed,"  say  the  Court,  "  by  Wilks  for  and  in  the  name 
of  his  principal ;  and  this  is  distinctlj'  shown  by  the  manner  of  making 
the  signatures.  Not  even  this  was  necessary  to  be  shown,  for  if  Wilks 
had  sealed  and  delivered  it  in  the  name  of  Browne,  that  would  be 
enough  without  stating  that  he  had  so  done."  The  case  was  followed 
with  approval  in  Musse^'  v.  Scott,  7  Cush.  215,  where  the  form  of  the 
signature  was  "  B.  for  A."  It  was  also  followed  b\'  the  Supreme  Court 
of  Vermont  in  McDaniels  v.  Flower  Brook  Manuf.  Co.,  22  Vt.  274. 
There  the  operative  clauses  were  in  the  name  of  the  corporation  "  by 
William  Wallace,  their  agent ;  "  the  covenants  were  in  the  name  of  the 
corporation.  The  deed  concluded,  "  In  witness  whereof  we  have  here- 
unto set  our  hand  and  seal,"  and  the  signature  was,  "  William  Wallace, 
Agent  for  the  Flower  Brook  Manufacturing  Company."  The  court  said 
that  the  execution,  in  connection  with  what  preceded  it,  must  be  under- 
stood to  be  an  execution  in  the  name  of  the  compan}'.  And  see  to  the 
same  effect  Martin  v.  Almond,  25  Mo.  313.  It  seems  to  us  that  there 
is  no  material  distinction  between  these  cases  and  the  case  at  bar.  The 
case  at  bar  would  be  identical  with  them  if  the  words,  "■  for  the  Centen- 
nial Ice  Compau}-,"  had  been  added  to  the  signature.  But  those  words 
if  added  would  express  nothing  which  is  not  expressed  without  them 
b}-  the  signature,  taken  in  connection  with  the  testimonium  clause  and 
covenant  which  precede  it.  The  seal  is  stated  in  said  clause  to  be  the 
seal  of  the  principals,  and  the  hand  to  be  their  hand,  evidently  because 
the  agent  signed  for  them.  In  Abbe^^  v.  Chase,  6  Cush.  54,  and  in  Ellis 
V.  Pulsifer  et  al.,  4  Allen,  165,  the  Supreme  Judicial  Court  of  Massa- 
chusetts decided  that  such  an  execution  did  not  bind  the  agents,  the 
action  being  against  the  agents,  but  expressly  refrained  from  saying 
that  it  did  not  in  their  opinion  bind  the  principals.  See  also  Varnum, 
Fuller,  &  Co.  v.  Evans,  2  McMullan,  409  ;  Hunter's  Admr's  v.  Miller's 
Exec'rs,  6  B.  Mon.  612;  Bryan  v.  Stump,  8  Gratt.  241;  M'Ardle  v. 
The  Irish  Iodine  Company,  15  Ir.  C.  L.  Rep.  146.  It  is  true  that  some 
of  the  text-books  say,  and  some  of  the  cases  seem  to  impl}',  that  the 
name  of  the  principal  must  necessarily  appear  in  the  signature.  But 
we  do  not  see  the  necessity.  When  A.,  being  agent  for  B.,  signs  the 
deed,  ""  A.  for  B.,"  or  "  A.,  agent  for  B.,"  his  own  name  is  the  signa- 
ture, the  other  words  being  used  to  denote  that  he  makes  the  signature 
not  for  himself  but  for  his  principal.  And  surely  if  this  be  so,  it  is 
unnecessary  to  use  those  words,  if  the  thing  which  is  denoted  by  them 
be  otherwise  apparent. 


600  BRADSTREET   V.    BAKER.  [CHAP.  IV. 

The  defendants  cite  and  rel}-  on  Townsend  v.  Corning,  23  Wend.  435  ; 
Townsend  v.  Hubbard,  4  Hill  (N.  Y.),  351  ;  Brinley  c.  Mann.  2  Cash. 
337;  Lessee  of  Clarke  v.  Courtne}-,  5  Pet.  319,  350;  but  in  each  of 
these  cases  the  deed  was  not  onl}'  signed  in  the  name  of  the  agent,  but 
the  seal  was  stated  in  the  testimonium  clause  to  be  his  seal.  Of  course 
the  deed  could  not  be  the  deed  of  the  principal  unless  the  seal  was  his 
seal.  Indeed,  in  Townsend  v.  Hubbard,  supra.  Chancellor  Walworth 
declared  that  no  particular  form  of  words  is  necessary  to  make  the  deed 
the  deed  of  the  principal,  "provided  it  appears  upon  the  face  of  the 
instrument  that  it  was  intended  to  be  executed  as  the  deed  of  the  prin- 
cipal, and  that  the  seal  affixed  to  the  instrument  is  his  seal,  and  not  the 
seal  of  the  attorney'  or  agent  merely."  In  Bellas  v.  Hays,  5  Serg.  &  R. 
427,  likewise  cited  for  the  defendants,  it  did  not  appear  that  the  seal 
was  the  seal  of  the  principal,  there  being  no  ttstimoniwm  clause,  and  it 
was  assumed  to  be  the  seal  of  the  agent.  The  agent,  moreover,  signed 
his  own  name  simply,  without  the  word  "agent"  appended.  The 
counsel  for  the  defendants  quotes  the  words  of  Judge  Stor\-  in  Lessee  of 
Clarke  v.  Courtnej-,  supra,  that  "the  law  looks  not  to  intent  alone, 
but  to  the  fact  whether  that  intent  has  been  executed  in  such  maimer 
as  to  possess  a  legal  validity."  Undoubtedly.  But,  in  his  work  on 
Agency,  Judge  Stor}-,  treating  of  this  matter,  says:  "In  all  cases 
where  the  instrument  purports  on  its  face  to  be  intended  to  be  the  deed 
of  the  principal,  and  the  mode  of  execution  of  it  by  the  agent,  however 
irregular  and  informal,  is  not  repugnant  to  that  purport,  it  would  prob- 
ably be  construed  to  be  the  deed  of  the  principal,  especially  where  the 
in  testimonizim,  clause  is  that  the  principal  has  thereto  affixed  his  seal." 
Story  on  Agency,  §  153,  cited  in  Martin  v.  Almond,  supra.  Our  con- 
clusion is  that  the  plaintiffs  were  bound  by  the  contract,  and  therefore, 
that  the  action  can  be  maintained.^  .  .  . 

Judgment  will  therefore  be  given  for  the  plaintiffs  for  the  amount 
stipulated  in  the  covenant,  and  the  case  will  stand  for  chancerization 
under  Pub.  Stat.  R.  I.  cap.  216,  §§  2,  3. 

Edward  D.  Bassett  and  Frederic  Hayes,  for  plaintiffs. 

James  G.  Markland,  for  defendants. 

1  A  passage  holding  the  stipulation  a  penalty  is  omitted.  —  Ed. 


SECT.  III.]  LONG   V.   COLBURN.  601 

SECTION  III. 

Negotiable  Instruments.   ■ 

LONG  V.    COLBURN. 
Supreme  Judicial  Coukt  of  Massachusetts.     1814. 

[II  Mass.  97.] 

Assumpsit  on  the  following  promissory  note,  viz. :  "No.  273,  $301. 
Boston,  17th  March,  1812.  For  value  received,  I  promise  to  pay 
Mr.  Edward  J.  Long,  or  order,  on  demand,  three  hundred  and  one 
dollars,  with  interest  after  four  months.  Pro  William  Gill, — J.  8. 
Colburn." 

The  action  came  on  for  trial  upon  the  general  issue,  at  the  last 
November  term  in  this  county,  before  Pakkek,  J. ;  when,  it  appear- 
ing in  evidence  that  the  defendant  had  a  letter  of  attorney  from 
William  Gill,  who  was  in  Europe  when  the  note  was  given,  and 
when  the  action  was  commenced  ;  and  that  the  note  was  for  a  premium 
on  a  policy  of  insurance  effected  for  Gill  and  on  Gill's  property;  and 
the  note  being,  in  the  opinion  of  the  judge,  signed  by  the  defendant  for 
Gill,  —  a  nonsuit  was  directed,  with  libert}'  to  move  the  Court  to  set  it 
aside  ;  the  defendant  agreeing,  in  case  the  nonsuit  should  be  set  aside, 
to  be  defai\Jtod. 

Sullivan,  for  the  plaintiff. 

Crane,  for  the  defendant. 

Parker,  J.,  delivered  the  opinion  of  the  Court. 

In  this  case,  Colburn,  the  defendant,  is  declared  against  upon  a 
promissory  note  made  b}'  him  ;  and  when  the  note  was  offered  in  evi- 
dence to  support  the  declaration,  it  appearing  to  be,  as  construed  by 
the  judge,  a  promise  in  behalf  of  William  Gill,  a  nonsuit  was  directed, 
on  the  ground  that  the  evidence  offered  did  not  support  the  declaration. 
If  the  note  warranted  a  verdict  against  the  defendant  in  the  present 
action,  the  nonsuit  must  be  set  aside,  and  judgment  be  rendered  for  the 
plaintiff  upon  the  default  of  the  defendant. 

But  we  are  all  very  clear  that  the  nonsuit  was  properly  ordered  ;  it 
being  certain  that  a  verdict  could  not  have  passed  for  the  plaintiff  upon 
this  evidence,  if  the  cause  had  gone  on  to  trial.  It  appears  upon  the 
face  of  the  note  itself,  that  the  present  defendant  was  not  to  be  consid- 
ered as  the  promisor.  He  signed  his  own  name.  Pro  William  Gill ; 
and  the  plaintiff's  remedy  is  against  Gill,  if  Colburn  had  authority  to 
make  the  promise  for  him  ;  and  if  he  had  not,  a  special  action  of  the 
case  might  make  Colburn  answerable. 

This  authority  may  be  by  parol,  by  letter,  by  verbal  directions,  or 
maj'  even  be  implied  from  certain  relations  proved  to  exist  between  the 
actual  maker  of  the  note  and  him  for  whom  he  undertakes  to  act ;  and 


602  LEADBITTER   V.   FARROW.  [CHAP.  IV. 

it  ma}'  sometimes  be  inferred  from  the  subsequent  assent  or  ratification 
of  the  party  wlio  is  charged  by  the  writing.  But  in  all  cases,  the  name 
of  the  party  intended  to  be  chaiged  must  appear  upon  the  instrument 
itself 

But  in  the  case  at  bar,  the  evidence  exhibited  by  the  defendant, 
altliough  unnecessary  for  the  purpose  of  discharging  himself,  abun- 
dantly shows  that  he  had  authority  to  promise  for  Gill,  and  that  Gill  is 
accountable  for  the  contents  of  this  note. 

The  counsel  for  the  plaintiff  has  ingeniously  endeavored  to  construe 
this  note  into  a  promise  of  Colburn  to  pay  this  money  for  W.  Gill. 
But  the  obvious  and  true  construction  of  the  instrument  is  a  promise  of 
Gill  by  Colburn,  his  agent  or  attorney.  And,  indeed,  if  the  construc- 
tion given  by  the  plaintiff's  counsel  were  correct,  he  could  not  recover 
in  the  present  action  ;  for  he  should  have  set  forth  that,  Gill  being 
indebted,  Colburn,  the  defendant,  for  forbearance,  or  some  othei-  legal 
consideration,  promised  to  pay.  There  is,  however,  no  reason  to  sup- 
pose this  the  nature  of  the  transaction  ;  and  there  seems  to  be  no  diffi- 
culty in  the  plaintiffs  pursuing  his  proper  remedy  against  Gill.  The 
nonsuit  must  remain.  Costs  for  the  defendant.^ 


LEADBITTER  v.   FARROW.  # 

King's  Bench.     1816. 
[5  M.  S-  S.  345] 

Assumpsit  upon  a  bill  of  exchange  and  the  money  counts.  Plea, 
non-assumpsit.  At  the  trial  before  Lord  Ellenborough,  C.  J.,  at 
the  London  Sittings  after  last  Hilary  term,  there  was  a  verdict  for  the 
plaintiff,  damages  £50,  subject  to  the  opinion  of  the  Court  upon  the 
following  case  :  — 

The  plaintiff  and  defendant,  at  the  time  of  drawing  the  bill  in  ques- 
tion, resided  at  Hexham.  The  defendant,  who  was  a  tanner,  was  also 
agent  of  the  Durham  bank,  in  which  capacity  he  acted  from  July,  1812, 
to  July,  1815,  when  the  bank  failed.  On  the  8th  of  June,  1815,  the 
plaintiff  sent  £50  to  the  house  of  the  defendant,  in  order  to  procure 

1  Ace:  Rice  r.  Gove,  22  Pick.  158  (18.39);  Alexander  v.  Sizer,  L.  R.  4  Ex.  102 
(1869). 

In  2  M.  &  G.  721,  n.  (a),  the  reporters,  commenting  upon  the  signature  "Robert 
Blundell,  by  procuration  of  Thomas  S.  M.  Stanley  "  (Blundell  being  the  agent  and 
Stanley  the"  principal),  say :  "  This  is  the  ordinary  commercial  form  of  signing  by  pro- 
curation. It  is  incorrect,  as,  in  strictness,  the  words  used  would  import  that  Blundell 
was  the  drawer  &c.  of  the  bills  through  the  procuration,  interposition,  or  agency  of 
Stanley.  The  proper  mode  of  signing  by  procuration  is,  either  to  use  the  name  of  the 
principal  only,  or  to  sign,  'A.  B.  (the  principal)  by,  or  by  the  procuration  of,  C.  D.' 
(the  agents"  —  Ed. 


SECT.  III.]  LEADBITTER   V.   FARROW.  603 

a  bill  upon  London  for  the  amount,  and  the  defendant  filled  up  and 
signed  the  bill  in  question  upon  one  of  the  printed  forms  of  the  Dur- 
ham bank,  and  sent  it  to  the  plaintiff.  The  following  is  a  copy  of  the 
bill :  — 

"  N.  G.  205. 

"  £50.  Hexham,  June  8th,  1815. 

"  Forty  days  after  date,  pay  to  the  order  of  Mr.  Thomas  Leadbitter 
fifty  pounds,  value  received,  which  place  to  the  account  of  the  Durham 
bank  as  advised. 

"Messrs.    Wetherell,    Stokes,    Mowbray,    Ilollings worth,  and  Co., 
bankers,  London. 

(Signed)  "  Christr.  Farrow." 

The  persons  who  constitute  the  firm  upon  which  the  bill  was  drawn 
are  the  same  who  constitute  the  firm  of  the  Durham  bank,  that  bank 
having  a  house  in  London,  upon  which  they  were  in  the  habit  of  draw- 
ing bills,  which  they  wished  to  make  payable  there. 

The  bill  in  question  was  drawn  in  the  same  form  as  had  been  used 
by  the  defendant  since  June,  1813,  before  which  time  he  had  been  in 
the  course  of  issuing  bills,  drawn  in  the  name  of  one  of  the  partners 
of  tlie  Durham  bank.  He  did  not  draw  bills  on  his  own  account  in 
this  form,  nor  upon  the  same  parties.  The  plaintiff,  when  he  sent  the 
£50,  and  obtained  the  bill,  knew  that  the  defendant  was  agent  of  the 
Durham  bank  at  Hexham,  and  that  the  Durham  bank  drew  upon  a 
house  in  London,  and  he  supposed  that  the  bill  was  given  b\'  the  de- 
fendant, as  agent,  and  on  account  of  the  Durham  bank,  to  which  the 
defendant  paid  over  the  £50.  The  bill,  when  due,  was  presented  to 
the  drawees,  and  payment  refused,  and  due  notice  was  given  to  the 
defendant. 

The  question  for  the  opinion  of  the  Court  was,  whether  the  plaintiff 
was  entitled  to  recover. 

Tindal  for  the  plaintiff. 

Scarlett,  contra. 

Lord  Ellenborough,  C.  J.  Is  it  not  a  universal  rule  that  a  man 
who  puts  his  name  to  a  bill  of  exchange  thereby  makes  himself  per- 
sonall}'  liable,  unless  he  states  upon  the  face  of  the  bill  that  he  sub- 
scribes it /or  another,  or  by  procuration  of  another,  which  are  words 
of  exclusion?  Unless  he  says  plainly,  "I  am  the  mere  scribe,"  he 
becomes  liable.  Now,  in  the  present  case,  although  the  plaintiff  knew 
the  defendant  to  be  agent  to  the  Durham  bank,  he  might  not  know  but 
that  he  meant  to  offer  his  own  responsibility.  Every  person,  it  is  to 
be  presumed,  who  takes  a  bill  of  the  drawer,  expects  that  his  respon- 
sibility is  to  be  pledged  to  its  being  accepted.  Giving  full  effect  to  the 
circumstance  that  the  plaintiff  knew  the  defendant  to  be  agent,  still 
the  defendant  is  liable,  like  any  other  drawer  who  puts  his  name  to 
a  bill  without  denoting  that  he  does  it  in  the  character  of  procurator. 
The  defendant  has  not  so  done,  and  therefore,  has  made  himself  liable. 


604  PRICE   V.   TAYLOR.  [CIIAP.  IV. 

I  do  not  say  whether  an  action  would  lie  against  the  Durham  bank, 
because,  considering  it  in  eitlier  way,  it  would  not,  as  it  seems  to  me, 
affect  the  liability'  of  the  defendant. 

Bayley,  J.  1  am  entirely  of  the  same  opinion.  The  drawer,  by  the 
act  of  drawing,  pledges  his  name  to  the  bill's  being  duly  honored ;  and 
though  the  plaintiff  in  this  case  knew  that  the  defendant  was  an  agent, 
he  might  also  know  that  he  had  given  this  pledge. 

Abbott,  J.  I  am  also  of  the  same  opinion.  The  party  does  not 
show  that  the  bill  was  not  taken  according  to  the  effect  which  it  bears 
on  the  face  of  it. 

HoLROYD,  J.  I  apprehend  that  no  action  would  lie  on  the  bill, 
except  against  those  who  are  the  parties  to  it. 

Judgment  for  the  plaintiff. 


PRICE  V.  TAYLOR  and  FISHER. 

Exchequer.     1860. 

[5  E.  ^-  N.  540.] 

Declaration.  That  the  defendants,  together  with  one  W.  R.  Heath, 
on  the  12th  of  March,  1858,  made  their  promissory  note  in  writing  now 
overdue,  which  note  is  in  the  words  and  figures  following,  that  is  to 
say  :  — 

"  Midland  Counties  Building  Society,  No.  3. 
"Birmingham.  March  12,  1858. 

"  Two  months  after  demand  in  writing  we  promise  to  pa}-  to  Mr. 
Thomas  Price  the  sura  of  one  hundred  pounds,  with  interest  after  the 
rate  of  six  pounds  per  centum  per  annum,  for  value  received. 

"  W.  R.  Heath, 
"£100.  John  Taylor,  Trustees. 

"  W.  D.  Fisher,  Secretary.''^ 

Averments :  that  the  signatures  John  Taj-lor  and  W.  D.  Fisher  at- 
tached to  the  said  note  are  those  of  the  defendants,  respectively' ;  that, 
after  the  making  of  the  said  promissory  note,  the  plaintiff  duly  de- 
manded in  writing  of  the  defendants  the  payment  of  the  said  sum  of 
£100  with  interest  for  the  same  after  the  rate  aforesaid  ;  that  two  months 
after  the  making  of  the  demand  had  elapsed  before  suit ;  yet  that  the 
defendants  have  not  nor  hath  either  of  them  paid,  «&;c.  Second  count, 
for  money  due  in  respect  of  moneys  lent,  for  interest,  and  on  an  account 
stated. 

Plea,  by  the  defendant  Taylor:  That  the  several  contracts  in  the 
declaration  mentioned,  and  each  and  every  of  them,  were  made  and 
entered  into  b}'  a  certain  building  society,  whereof  the  defendants  and 
divers  other  persons,  at  the  time  of  the  making  of  the  said  contracts, 


SECT.  III. J  PRICE    V.    TAYLOR.  605 

were  and  are  members,  that  is  to  sa}-,  the  No.  3,  Midland  Counties 
Building  Society',  duly  established  under  and  by  virtue  of  the  provisions 
of  an  Act  (6  &  7  Wm.  IV.  c.  32),  for  the  regulation  of  building  societies, 
and  all  other  statutes  in  that  behalf,  the  rules  of  which  said  society 
were  dul}'  certified  and  allowed,  and  all  other  matters  and  things 
required  by  the  statutes  dul}'  performed  in  pursuance  of  the  said  stat- 
utes, to  constitute  the  said  societj-  a  building  society,  within  and 
subject  in  all  respects  to  the  provisions  of  the  said  Acts ;  and  the  said 
contracts  were  not,  nor  was  any  or  either  of  them,  made  with  the  de- 
fendants otherwise  than  as  members  of  the  said  societ}',  together  with 
the  said  other  members  ;  and  that  at  time  of  the  commencement  of 
this  suit  divers  persons,  of  whom  the  defendant  W.  D.  Fisher  was  not 
one,  were  trustees  of  the  society,  duly  appointed  in  all  respects  as 
required  by  the  Acts  by  the  rules  of  the  society,  and  liable  by  virtue  of 
the  said  Acts  to  be  sued  as  such  upon  all  the  contracts  of  the  society. 

To  this  plea  the  plaintiff  demurred. 

Quain,  in  support  of  the  demurrer. 

Gray^  in  support  of  the  plea. 

Pollock,  C.  B.  I  am  of  opinion  that  the  plaintiff  is  entitled  to 
judgment.  The  note  is  nothing  more  than  what  it  purports  to  be,  viz., 
the  promise  of  the  defendants,  not  of  the  societ}-.  The  plea  does  not 
deny  that  the  form  of  the  contract  is  that  set  out  in  the  declaration,  but 
says  it  means  something  else.  I  think,  however,  that  it  is  not  compe- 
tent to  a  defendant  to  plead  that  a  written  contract  means  something 
different  from  that  which  it  purports.  A  party  cannot  sa}',  "  I  executed 
that  contract,  but  j'ou  know  I  meant  something  else." 

Martin,  B.  The  meaning  of  a  written  document  is  to  be  collected 
from  the  terms  in  which  it  is  expressed.  In  Bayley  on  Bills,  ch.  2, 
sec.  8,  it  is  said  :  "Where  a  bill  or  note  is  drawn  b}'  an  agent,  executor, 
or  trustee,  he  should  take  care,  if  he  mean  to  exempt  himself  from  per- 
sonal responsibilit}',  to  use  clear  and  explicit  words  to  show  that  inten- 
tion." This  is  the  correct  rule  of  construction.  Does  the  note  in  the 
present  case  show  an  intention  on  the  part  of  the  defendants  to  exempt 
themselves  from  personal  responsibility  ?  I  think  not.  "  Midland 
Counties  Building  Societ}-,  No.  3,"  may  be  the  name  of  the  place  from 
which  the  note  is  dated ;  the  promise  is  not  qualified.  If  the  plea 
admits  that  the  note  was  the  note  of  the  defendants  it  shows  no  answer 
to  the  action  ;  if  it  be  meant  to  contradict  the  terms  of  the  note,  it 
is  bad. 

Bramwell,  B.  I  am  of  the  same  opinion  ;  though  I  cannot  sa}'  I 
think  the  matter  verj'  clear.  First,  what  is  the  natural  meaning  of  the 
language  of  the  note  ?  There  is  no  difficulty  about  that,  for  on  reading 
it,  it  does  not  appear  that  the  defendants  undertake  for  anybody  but 
themselves.  If  there  was  anything  to  show  that  the  note  wouM  be 
binding  on  the  building  society,  we  might  hold  that  the  note  was  the 
note  of  the  society,  and  not  of  the  defendants  alone,  as  in  Aggs  v. 
Nicholson,  1  H.  &  N.  165.     If  tlie  note  had  been  made  bv  the  defend- 


606  BANK    OF    NEW    YORK   V.    BANK    OF   OHIO.  [CHAP.  IV. 

ants  in  such  a  form  as  not  to  bind  thein  personally,  possibly  the  plea 
might  have  been  good.  But  I  concur  in  saying  that  the  plaintiff  must 
have  judgment.  I  do  not  think  that  the  defendants  contend  that  this 
is  a  uo;e  binding  upon  the  society.  I  doubt  if  they  could  have  said  so. 
1  know  of  no  means  by  which  such  a  note  could  be  enforced  except  as 
against  the  individual  members  of  the  society. 

Wilde,  B.  I  am  of  the  same  opinion.  The  note  on  the  face  of  it 
merely  professes  to  bind  the  persons  who  signed  it.  They  add  the 
word  "  trustees  "  to  their  signature.  The  defence  is,  that  the}'  signed 
as  agents.  But  an  agent  who  signs  a  note  in  his  own  name  makes 
himself  personally  liable  upon  it.  If  there  are  any  circumstances  to 
show  that  the  trustees  were  not  to  be  personal!}'  liable,  that  may  be  a 
matter  of  equitable  defence.  Judgment  for  the  plaintiff.^ 


THE  BANK  OF  THE  STATE  OF  NEW  YORK  v.  THE 
MUSKINGUM  BRANCH  OF  THE  BANK  OF  THE 
STATE  OF  OHIO. 

Court  of  Appeals  of  New  York.     1864. 

[29  N.  Y.  619.] 

Appeal  from  a  judgment  of  the  Supreme  Court. 
The  action  was  brought  against  the  defendants  as  endorsers  of  a  bill 
of  exchange  as  follows :  — 
"No.  1  305.  Zanesville,  0.,  July  21,  1857. 

"Sixty  days  after  date,  pay  to  the  order  of  D.  C.  Converse,  Esq., 
cashier,  twenty-two  hundred  and  forty  dollars,  as  advised,  and  charge 
the  same  to  account  of 

"  Your  obedient  servants, 

"  Beaumont  &  Hollings worth. 

"To  W.  R.  EcKART,  118  Broad  St.,  New  York.  $2,240." 

(Written  across  face. )     "  W.  R.  Eckart." 

(Endorsement.)    "  Pay  to  the  order  of  Edwin  Ludlow,  cashier." 

"  D.  C.  Converse,  Cr. 

"  Edwin  Ludlow,  Cr." 

The  complaint  averred  that  D.  C.  Converse  was  and  is  the  cashier  of 
the  defendants,  and  their  officer  authorized  to  deal  with  their  funds  and 
negotiable  paper;  that  the  bill  was  actually  drawn  to  the  defendants, 
and  endorsed  by  the  defendants  to  the  Ohio  Life  Insurance  and  Trust 
Company,  and  by  the  Ohio  Life  Insurance  and  Trust  Company  endorsed 

1  Ace. :  Casco  Natioual  Bank  v.  Clark,  139  N.  Y.  307  (1893).  — Ed. 


SECT.  III.]  BANK    OF    NEW    YORK   V.    BANK    OF   OHIO.  607 

in  blank,  and  that  before  maturity  the  bill  was  delivered  to  the  plaintiff, 
for  value. 

The  defendants,  in  their  answer,  denied  that  D.  C.  Converse  was  or 
is  authorized  to  deal  with  the  negotiable  paper  in  an}'  other  manner 
than  as  their  cashier  and  special  agent.  As  a  furllier  defence  it  was 
averred  and  stated  that  the  defendants  were  the  sole  and  absolute 
owners  of  the  bill ;  that  after  becotning  sucii  owners  they  transmitted  it 
to  the  Ohio  Life  Insurance  and  Trust  Company,  to  its  office  in  the  city 
of  New  York,  for  collection  for  tlieir  account,  and  for  no  other  purpose, 
and  upon  no  other  account  wliatsoever.  That  said  company  failed,  on 
or  about  the  24th  August,  1857,  having  been  insolvent  and  embarrassed 
for  four  montlis  previous  thereto  ;  and  that  the  alleged  tiansfer  of  said  bill 
to  the  plaintiff  was  made  fraudulently,  coniiptl}-,  usuriously,  and  in  bad 
faith,  and  without  any  authority,  and  in  contemplation  of  tlie  insolvency  of 
the  said  Ohio  Life  Lisurance  and  Trust  Company  ;  and  that  the  plaintiff 
did  not  receive  the  same  in  the  usual  course  of  business,  but  with  notice  of 
the  premises  as  aforesaid,  or  under  circumstances  to  put  said  plaintiff 
upon  iuquir}'  as  to  the  right  of  said  trust  companv  and  its  cashier  to 
endorse  or  transfer  the  same,  and  as  to  the  right  of  the  defendants  thereto. 
And  it  is  averred  that  the  plaintiff  was  chargeable  with  notice  that  the 
said  acceptance  was  not  the  propert}'  of  the  Ohio  Life  Insurance  and 
Trust  Compan}',  but  the  property  of  the  defendants.  The  case  was 
referred  to  William  Kent,  Esq.,  who  gave  judgment  for  the  plaintiffs. 
The  referee  found  as  facts  that  the  defendants  and  the  Ohio  Life 
Insurance  and  Trust  Compan}-  were  corporations  incorporated  by  the 
State  of  Ohio.  That  at  the  time  the  bill  was  endorsed  and  sent  to  the 
Ohio  Life  Insurance  and  Trust  Compan}-,  D.  C.  Converse  was  the  cashier 
of  the  defendants  and  Edwin  Ludlow  was  the  cashier  of  the  trust  company. 
That  the  bill  was  discounted  b}'  the  Muskingum  Branch  Bank,  in  the  regu- 
lar course  of  business,  and  was  afterwards  endorsed  b}-  said  Converse, 
the  cashier  thereof,  and  transmitted  to  the  Ohio  Life  Insurance  and  Trust 
Company,  in  the  city  of  New  York,  for  collection  only.  That  the  defend- 
ants did  not  part  with  their  property  in  the  bill  to  the  Ohio  Life  Insurance 
and  Trust  Company  ;  but  that  compan}'  received  it  as  the  agents  of  the 
defendants, ''  for  collection,  and  for  no  other  purpose."  That  it  was  trans- 
ferred by  the  Ohio  Life  Insurance  and  Trust  Company  to  the  plaintiff 
as  collateral  security  ;  that  the  plaintiff  had  not,  at  the  time  of  such  trans- 
fer, actual  notice  of  the  ownership  of  said  bill  b}-  the  Muskingum  Branch 
Bank,  but  received  the  same  bona  fide,  and  in  the  usual  course  of  business. 

As  conclusions  of  law,  the  referee  decided  that  the  plaintiff  acquired 
a  title  to  the  bill  of  exchange  by  virtue  of  the  transfer  to  it  aforesaid; 
and  that  the  Muskingum  Branch  Bank  had  become  liable  to  pa}'  the 
amount  thereof,  with  interest,  to  the  plaintiff,  by  reason  of  the  said 
endorsement  thereof  by  D.  C.  Converse,  cashier  of  said  Branch  Bank, 
and  the  transfer  by  the  Ohio  Life  Insurance  and  Trust  Company. 

At  the  close  of  the  evidence  the  point  was  taken  by  the  defendants' 
counsel,  and  overruled  by  the  referee,  that  the  Muskingum  Branch 


608  BANK  OF  NEW  YORK  V.   BANK  OF  OHIO.    [CHAP.  IV. 

Bank  could  not  be  made  liable  on  the  endorsement,  "  D.  C.  Converse, 
cashier,"  said  bank  nowhere  appearing  on  the  said  bills,  and  the  said 
Converse  having  no  authority  to  bind  the  bank. 

Judgment  being  entered  for  the  plaintiffs  on  the  report  of  tlie  referee, 
the  defendants  appealed  to  the  Supreme  Court,  where  the  judgment  was 
aflflrmed.     The  defendants  brought  the  present  appeal. 
G.  C  Goddard,  for  the  appellant. 
A.  W.  Clason,  for  the  respondent. 

Wright,  J.  The  question  in  the  case,  on  the  facts,  is  a  narrow  one. 
The  defendants  discounted  a  bill  of  exchange  in  the  regular  course  of 
buBiness,  which  was  endorsed  h\  one  Converse,  their  cashier,  and  trans- 
mitted to  the  Ohio  Life  Insurance  and  Trust  Company,  in  the  city  of 
New  York,  for  collection  only.  Before  the  bill  matured,  the  trust  company 
transferred  it  to  the  plaintiffs  as  collateral  security  for  borrowed  money. 
The  plaintiffs,  at  the  time  of  such  transfer,  had  no  actual  notice  of  the 
ownership  of  the  bill  by  the  defendants,  but  received  the  same  bona  fide, 
and  in  the  usual  course  of  business.  The  bill  vras  made  payable  to  the 
order  of  D.  C.  Converse,  cashier,  and  endorsed,  "  Pa}'  to  the  order  of 
Edwin  Ludlow,  cashier,  D.  C.  Converse,  Cr."  The  only  question  is, 
■whether  this  was  the  endorsement  of  the  Muskingum  Branch  Bank,  or 
of  Converse  individuallj'.  If  it  was  an  official  and  not  the  private  act  of 
Converse,  in  fact  done  on  behalf  of  the  bank,  as  the  bill  was  negotiated 
to  the  plaintiffs,  "who  are  bo7ia  fide  holders,  the  endorsement  would 
conclude  the  bank  in  favor  of  them,  though  the  Ohio  Life  Insurance  and 
Trust  Company,  its  agent,  acted  in  bad  faith,  and  disobeyed  its  instruc- 
tions, by  negotiating  the  bill  for  its  own  benefit  instead  of  collecting  it. 

It  seems  to  me,  on  tlie  facts,  that  but  one  interpretation  can  be  given 
to  Converse's  acts.  Converse  was  the  defendant's  cashier.  A  bill 
drawn  to  "  D.  C.  Converse,  cashier,"  was  discounted  by  the  defendants. 
The  facts  are  found,  and  it  is  not  controverted,  that  the  Muskingum 
Bank  owned  the  draft,  and  that  it  was  sent  to  the  Ohio  Life  Insurance 
and  Trust  Company  for  collection.  The  trust  company  received  it  from 
the  bank  with  the  endorsement,  "  D.  C.  Converse,  Cr."  Now,  how  can 
it  be  pretended  that  this  was  the  individual  and  not  the  official  act  of 
Converse?  Although  "  D.  C.  Converse,  cashier,"  was  the  payee  of  the 
draft,  the  bank  claimed  it  as  its  propert}-,  and  to  deal  with  it  as  such. 
Indeed,  a  bill  drawn  to  "  D.  C.  Converse,  cashier,"  is,  in  judgment 
of  law,  payable  to  the  bank  of  which  he  is  the  officer.  Being  the  prop- 
erty of  the  bank,  the  endorsement,  "  D.  C.  Converse,  Cr.,"  was  made 
by  the  proper  officer,  for  a  proper  purpose.  It  was,  therefore,  an  official 
endorsement.  Had  there  been  nothing  in  the  case  to  connect  the  bill 
with  the  defendant's  bank,  Converse  would  have  been  regarded  as  the 
pa3'ee  and  the  endorser  individualh',  and  the  abbreviation  affixed  to  his 
name  considered  as  a  descriptio  personce;  but  when  his  official  position 
is  shown,  connected  with  the  facts  that  the  bill  was  the  property  of  the 
bank,  and  in  the  regular  course  of  business  was  transmitted  to  its  agent 
for  collection,  it  is  then  shown  that  the  endorsement  is  an  official  one. 


SECT.  III.]  BARLOW   V.   CONGREGATIONAL    SOCIETY.  609 

The  case  of  the  £ank  of  Ge^iesee  v.  Patchin  Bank  (19  N.  Y.  R.  312) 
is,  on  this  question,  a  controlling  authorit}'.  In  that  ease,  S.  B.  Stokes, 
the  cashier  of  the  Patcliin  Bunk,  sent  to  the  Bank  of  Genesee,  to  be 
discounted,  a  bill  of  exchange  payable  to  the  order  of  "S,  B.  Stokes, 
Cas.,"  endorsed  by  him  with  the  same  addition  to  his  signature,  and 
enclosed  in  a  letter  dated  at  the  banking  house,  and  signed  "  S.  B. 
Stokes,  Cas."  It  was  held  that  these  circumstances  imi)orted  that  the 
endorsement  was  that  of  the  Patchin  Bank,  in  the  regular  course  of 
business,  and  not  that  of  S.  B.  Stokes  individiudl}-.  There  is  this 
difference  onl}'  in  the  cases.  In  the  one  cited  the  bill  was  sent  for 
discount,  in  this  for  collection  ;  but  plainly'  that  could  not  affect  the 
question.  The  intention  in  each  case  to  make  the  bank  a  party  to  the 
paper  is  equally  carried  out. 

I  think,  therefore,  the  endorsement  in  this  case  was  that  of  the 
Muskingum  Bank,  and  bound  it  as  such  to  a  bona  Jidt  holder  of  the  bill. 
Its  liability  as  endorser  certainly  cannot  be  qualified  by  the  consideration 
that  the  bill  was  sent  to  its  agent  not  to  be  negotiated,  but  for  collection 
only.  The  object  of  the  endorsement  was  to  create  a  privity  between 
any  holder  and  the  parties  to  the  paper,  and  it  accomplished  it.  There 
was  nothing  on  the  face  of  the  endorsement  to  convey  to  third  parties 
knowledge  of  the  single  purpose  for  which  it  was  made,  nor  were  they 
even  bound  to  ascertain  that  extrinsic  fact.  The  bank  reposed  confi- 
dence in  the  caution  of  its  cashier,  and  in  the  honest}-  of  its  agent.  The 
cashier  neglected  to  add  the  restrictive  words  which  would  have  limited 
the  negotiability  of  the  bill,  and  the  agent  abused  the  trust.  I  do  not 
think  that  the  plaintiff,  who  became  a  holder  in  good  faith,  and  in  the 
regular  course  of  business,  should  bear  a  loss  occasioned  b}'  the  negli- 
gence of  the  one  and  the  bad  faith  of  the  other  agent. 

The  judgment  of  the  Supreme  Court  should  be  Affirmed} 


BARLOW  V.  CONGREGATIONAL   SOCIETY. 
Supreme  Judicial  Court  of  Massachusetts.     1864. 

[8  Allen,  460.] 

Contract  brought  b}'  the  administrator  of  the  estate  of  Reuben 
Barlow  against  the  Congregational  Society  in  Lee,  upon  the  following 
promissor}'  note :  — 

''  $23.00.  Lee,  April  26,  1858.  On  demand,  I,  as  treasurer  of  the 
Congregational  Society,  or  my  successors  in  office,  promise  to  pay 

1  All  the  judges  concurred.     The  opinion  of  Ingraham,  J.,  has  been  omitted. 
See  Phelps  v.  Livingston,  2  Root,  495  (1797);  Baldwin  v.  Bank  of  Newbury,  1 
Wall.  234  (1863).  — Ed. 

39 


610  BARLOW   V.    CONGREGATIONAL    SOCIETY.  [CIIAI*.  IV. 

Erastus  Hall  or  order  twenty-three  dollars,  value  received,  with  interest. 
Samuel  S.  Rogers,  Treasurer." 

The  declaration  alleged  that  the  defendants,  for  value  received  by 
them,  made  the  note  by  Samuel  S.  liogers,  their  treasurer  and  agent, 
duly  authorized  ;  and  that  it  was  duly  indorsed  to  the  plaintilf  s  intes- 
tate. The  defendants  filed  a  general  demurrer,  which  was  overruled  in 
the  Superior  Court,  and  judgment  rendered  for  the  plaintiff ;  and  the 
defendants  appealed  to  this  court. 

31.  Wilcox,  for  the  defendants. 

J.  Hi'ditning,  for  the  i)luuititf. 

Gray,  J.  It  is  well  settled  in  this  Commonwealth  that  the  question 
whether  a  principal  or  his  agent  is  the  party  liable  upon  a  negotiable 
note  or  bill  of  exchange  must  be  ascertained  from  the  instrument  itself, 
at  least  when  both  are  in  law  capable  of  contracting,  and  it  is  not  pre- 
tended that  either  has  adopted  the  name  of  the  other  as  his  own  for  the 
purpose  of  transacting  business.  This  exception  to  the  general  rule 
which  governs  other  parol  (or  unsealed)  agreements  is  derived  from 
the  nature  of  negotiable  paper,  which,  being  made  for  the  very  purpose 
of  being  transferred  from  hand  to  hand,  and  of  giving  to  every  succes- 
sive holder  as  strong  a  claim  upon  the  maker  as  the  original  payee  had, 
must  indicate  on  its  face  who  the  maker  is  ;  for  any  additional  liability 
of  the  principal,  not  expressed  in  the  form  of  such  a  note  or  bill, 
would  not  be  negotiable  ;  and  any  ambiguit}-,  arising  upon  the  face  or 
the  writing,  in  determining  whether  it  is  the  promise  of  the  principal  or 
of  the  agent,  must,  on  the  ordinary-  principles  of  the  law  of  evidence, 
be  solved  without  the  aid  of  extrinsic  testimony'.  Bank  of  British 
North  American.  Hooper,  5  Gray,  570,  571,  and  cases  cited  ;  Williams 
V.  Bobbins,  16  Gray,  77 ;  Draper  v.  Massachusetts  Steam  Heating  Co., 
5  Allen,  339  ;  Slawson  v.  Loring,  Id.  342. 

The  plaintiff  has  mainly  relied  upon  the  case  of  Mann  v.  Chandler, 
9  Mass.  335,  in  which  it  was  held  that  promissory  notes  expressed  to 
be  made  by  "I,  the  subscriber,  treasurer  of  the  Dorchester  Turnpike 
Corporation,"  and  signed  "  Gardner  L.  Chandler,  Treasurer  of  Dor- 
chester Turnpike  Corporation,"  were  the  notes  of  the  corporation,  and 
not  of  the  treasurer.  That  case,  although  it  has  never  been  in  terms 
overruled,  has  never  been  followed  in  this  Commonwealth,  can  hardly 
be  reconciled  with  the  later  decisions,  and  must  be  maintained,  if  at 
all,  upon  the  ground  that  the  treasurer  of  a  corporation  is  by  virtue  of 
his  office  the  hand  by  which  the  corporation  conducts  all  its  pecuniary 
affairs,  signs  all  its  commercial  paper,  and  pays  all  its  debts.  Eastern 
Railroad  v.  Benedict,  5  Gray,  565;  Fiske  v.  Eldridge,  12  Gray,  474; 
Draper  v.  Massachusetts  Steam  Heating  Co.,  5  Allen,  339. 

In  that  view,  the  notes  of  the  treasurer  of  a  corporation  would  be 
assimilated  to  those  of  the  cashier  of  a  bank,  which  the  American 
courts,  in  accordance  with  mercantile  usage,  have  often  shown  the 
strongest  inclination  to  treat  as  contracts  of  the  bank.  INIechanics' 
Bank  of  Alexandria  v.  Bank  of  Columbia,  5  Wheat.  3S5,  336  ;  Hartford 


SECT.  III.]  BAKLOW   V.    CONGREGATIONAL    SOCIETY.  611 

Bank  v.  Barry,  17  Mass.  94;  Folger  v.  Chase,  18  Pick.  63;  Bank  of 
Utica  V.  Magber,  18  Johns.  346  ;  Watervliet  Bank  v.  White,  1  Denio, 
613;  Farmers'  &  Mechanics' Bank  of  Michigan  v.  Troy  City  Bank, 
1  Doug.  (Midi.)  470,  472,  473.  It  has  indeed  been  adjudged  by  the 
Supreme  Court  of  tlie  United  States,  as  well  as  by  tliis  court,  that  on 
commercial  paper  payable  to  "A.  B.,  cashier,"  the  bank,  although  not 
named  in  the  instrument,  might  maintain  an  action.  Baine}-  j>.  New- 
comb,  9  Cush.  53  ;  Baldwin  v.  Bank  of  Newbury,  I  Wallace,  234. 
Whetlier  those  decisions  stand  upon  the  peculiar  relation  between  a 
bank  and  its  cashier,  or  (as  the  opinions  imply)  upon  a  general  right  of 
an}'  principal  to  sue  upon  negotiable  paper  made  to  his  agent,  we  need 
not  here  inquire.  See  West  B03  Iston  Manuf.  Co.  v.  Searle,  15  Pick. 
230  ;  Commercial  Bank  v.  French,  21  Pick.  486  ;  Fuller  v.  Hooper, 
3  Grny,  341  ;  Eastern  Railroad  v.  Benedict,  5  Gra}',  563,  564,  and 
cases  cited  ;  Williams  v.  Bobbins,  16  Gray,  77  ;  Bank  of  United  States 
V.  Lyman,  20  Vt.  673-677,  and  cases  cited;  S.  C.  12  How.  (U.  S.) 
243. 

But  a  draft  pa3'able  to  "  A.  B ,  Treasurer  of  the  Hampshire  Manu- 
facturing Company,"  has  been  held  to  be  well  indorsed  by  tlie  signature 
of  "  A.  B.,  Treasurer;"  Chief  Justice  Shaw  saying,  "This  mode  of 
naming  the  payee,  for  aught  tliat  appears  on  the  draft,  was  a  descriptio 
pei'sonce."  Shaw  v.  Stone,  1  Cush.  253,  254.  Still  more  directly  op- 
posed to  the  case  of  IMann  ik  Chandler  is  that  of  Seaver  v.  Coburn, 
10  Cush.  324,  in  wliich  it  was  Iield  tliat  a  lease  to  Nathan  P.  Coburn, 
"Treasurer  of  the  P^agle  Lodge,  No.  114,  I.  O.  O.  F.,"  and  signed 
"  N.  P.  Coburn,  Treas.,"  bound  Coburn  personally.  The  files  of  that 
case  show  that  the  lease  was  under  seal,  and  it  is  common  learning 
that  a  sealed  instrument  takes  effect  more  according  to  its  form,  in  pro- 
portion to  the  apparent  intention,  than  a  simple  contract  ;  but  it  does 
not  appear  b}'  the  report  or  opinion  that  anj'  stress  was  laid  upon  that 
distinction,  or  upon  its  not  being  shown  that  an  Odd  Fellows'  Lodge 
was  a  corporation  capable  of  contracting. 

All  the  decisions  of  this  court  upon  unsealed  instruments  since  the 
case  of  Mann  v.  Chandler  have  required  something  more  than  a  mere 
description  of  the  general  relation  between  the  agent  and  the  principal, 
in  order  to  make  them  the  contracts  of  the  latter.  Thus  an  agreement 
which  declares  the  signers  to  be  a  committee  of  a  certain  town,  or 
trustees  of  a  particular  meeting-house,  and  is  signed  with  their  own 
names,  without  addition,  is  their  individual  contract.  Simonds  v. 
Heard,  23  Pick.  120  ;  Packard  ik  Nye,  2  Met.  47  ;  and  see  Crew  v. 
Petit,  3  Nev.  &  Man.  450  ;  s.  c.  7iom.  Rew  v.  Pettet,  1  Ad.  &  El.  196. 
So  a  promissory  note,  in  the  body  of  which  the  principal  is  not  named, 
and  which  is  signed  by  the  agent  in  his  own  name,  does  not,  b^y  the 
mere  addition  to  his  signature  of  the  words  "  trustee"  or  "president" 
of  a  particular  railroad  corporation,  become  the  note  of  the  corpora- 
tion. Fiske  V.  Eldridge,  12  Gray,  474 ;  Haverhill  Ins.  Co.  v.  Newhall, 
1  Allen,  130.     To  the  same  effect  are  Fogg  v.  Virgin,  19   Me.  352; 


612  BARLOW  V.   CONGREGATIONAL   SOCIETY.  [CHAP.  IV. 

Hills  V.  Bannister,  8  Cow.  31 ;  Barker  v.  Mechanics'  Ins.  Co.,  3  Wend. 
98  ;  Moss  v.  Livingston,  4  Comst.  208.  We  are  therefore  unwilling  to 
rest  our  judgment  in  this  case  upon  the  authority  of  Mann  v.  Chandler. 
Nor  can  our  decision  be  governed  by  tlie  case,  next  cited  by  the 
plaintiff,  of  Dawes  v.  Jacl^son,  9  Mass.  490,  in  which  an  indenture 
made  by  the  defendant,  "  as  superintendent  or  agent  of  the  Massachu- 
setts State  Prison,"  he  having  authority  by  virtue  of  his  office  to  bind 
the  Commonwealth  in  the  matter  of  that  contract,  was  held  not  to  bind 
him  personally  ;  for  that  case  may  have  been  decided  u[)on  the  ground 
that  the  defendant  was  a  public  agent.  Hodgson  v.  Dexter,  1  Cranch, 
345  ;  Parks  v.  Ross,  11  How.  (U.  S.)  374. 

Upon  the  question  what  words  in  a  simple  contract,  made  hy  the 
hand  of  an  agent  of  an  individual  or  private  corporation,  will  bind  the 
principal,  the  line  of  distinction  between  the  cases,  even  in  the  same 
court,  is  very  narrow.  Thus  it  is  well  settled  that  a  promissory  note 
made  b}'  an  agent,  without  naming  his  principal  in  the  body  of  it,  but 
signed  "  For  C.  D.,  A.  B.,"  or  "  A.  B.,  agent  for  C.  D.,"  or  "  A.  B.,  for 
C.  D.,"  is  the  note  of  C.  D.,  the  principal.  Long  v.  Colburn,  11  Mass. 
97;  Emerson  'v.  Providence  Hat  Manuf.  Co.,  12  Mass.  237;  Ballon  v. 
Talbot,  16  Mass  461  ;  Rice  v.  Gove,  22  Pick.  158  ;  Paige  v.  Stone, 
10  Met.  160  ;  Ex  parte  Buckley,  14  M.  &  W.  469.  But  it  seems  to 
be  equally  well  settled  in  this  court,  and  supported  by  English  au- 
thority, that  the  mere  insertion  of  "  for,"  or  "  for  and  in  behalf  of" 
the  principal,  in  the  body  of  the  note,  does  not  make  it  the  contract  of 
the  principal,  if  signed  by  the  mere  name  of  the  agent,  without  addi- 
tion. Bradlee  v.  Boston  Glass  Manufactory,  16  Pick.  347  ;  Morell  v. 
Codding,  4  Allen,  403  ;  Penkivil  v.  Council,  5  Exch.  381  ;  Tanner  v. 
Christian,  4  El.  &  Bl.  591.  So  a  direction  in  a  bill  of  exchange  drawn 
by  an  agent  to  place  the  amount  "  to  the  account"  of  his  principal, 
has  been  held  not  to  exempt  an  agent  signing  his  own  name  without 
addition,  Mayhew  v.  Prince,  11  Mass.  54,  and  papers  on  file  in  Suffolk, 
March  terra,  1814;  but  to  bind  the  principal,  when  the  word  "agent" 
was  added  to  the  signature.  Tripp  v.  Swanzey  Manuf.  Co.  13  Pick. 
292,  293  ;  Fuller  v.  Hooper,  3  Gray,  334. 

Even  the  insertion  in  a  promissory  note  of  the  word  "as"  between 
the  name  of  the  signer  and  the  description  of  his  relation  to  another 
person,  has  been  held  not  sufficient  to  exempt  him  from  personal  lia- 
bility, where  the  note  showed  upon  its  face  that  no  other  person  was 
legally  bound ;  as  in  the  case  of  a  promissory  note  made  by  a  guardian 
"  as  guardian,"  and  repeating  the  word  "  guardian  "  after  his  signature, 
when  he  had  no  authority  in  law  to  bind  the  person  or  estate  of  his 
ward  by  such  a  note.  Thacher  v.  Dinsmore,  5  Mass.  299  ;  Forster  v. 
Fuller,  6  Mass.  58.  On  like  considerations  it  has  been  held  in  England 
that  a  promise  to  pay  money  made  by  solicitors  "  as  solicitors,"  bound 
them  and  not  their  client.  Burrell  v.  Jones,  3  B.  &  Aid.  47.  See  also 
Eaton  V.  Bell,  5  B.  &  Aid.  34. 

But  wherever  it  appears  upon  the  face  of  a  simple  contract  made  by 


SECT.  III.]  BARLOW    V.   CONGREGATIONAL    SOCIETY.  613 

the  agent  of  one  named  therein,  and  whom  he  can  legally  bind  thereby, 
that  he  acts  as  agent  and  intends  to  bind  his  principal,  the  law  will 
give  effect  to  the  intention,  in  whatever  form  expressed.  Thus  it 
seems  to  be  well  settled  in  England  that  an  authorized  agent  making  a 
written  agreement  "  by  procuration  of"  his  principal,  binds  his  princi- 
pal only.  Lord  EUenborough,  in  Leadbitter  v.  Farrow,  5  M.  &  S.  345 ; 
Wightman  and  Crompton,  JJ.,  in  Mare  v.  Charles,  5  El.  &  Bl.  980.  So 
this  court,  in  what  has  long  since  become  a  leading  case,  held  that  an 
agreement  written  upon  the  back  of  a  negotiable  promissory  note  in 
these  words  :  ''  B}'  authority  from  J.  De  Wolf,  Jr.,  I  hereby  guaranty 
the  payment  of  this  note.  Isaac  Clap,"  was  the  contract  of  De  Wolf. 
New  England  Marine  Ins.  Co.  v.  De  Wolf,  8  Pick.  56.  And  an  agree- 
ment in  which  "  the  undersigned,  committee  for  the  First  School  Dis- 
trict," promise  in  behalf  of  said  district  to  pay  a  certain  sum  for 
building  a  school-house  therein,  signed  by  the  individual  members  of 
the  committee,  with  the  word  '^committee"  opposite  all  their  names, 
has  been  held  by  the  Supreme  Court  of  Maine  not  to  make  them  per- 
sonall}'  liable.  Andrews  v.  Estes,  2  Fairf.  267.  See  also  Abbey  v. 
Chase,  6  Cusli.  56  ;  Tripp  v.  Swanzey  INIanuf.  Co  ,  and  Fuller  r.  Hooper, 
above  cited  ;  Bank  of  Australasia  v.  Breillat,  6  Moore,  P.  C  161,  189  ; 
Lewis  V.  Nicholson,  18  Q.  B.  503 ;  Green  v.  Kopke,  18  C.  B.  549. 

The  case  now  before  the  court  is  stronger  against  the  principal  than 
an}'  of  these.  The  note  is  dated  at  Lee,  and  calls  the  person  who 
affixes  the  signature  "  treasurer  of  the  Congregational  Societ}-,"  thus 
distinctly  naming  the  Congregational  Society  in  Lee,  and  showing  who 
the  principal  is ;  the  promise  contained  in  the  note  is  expressed  to  be 
made  by  the  writer  "  as  treasurer  of"  that  societ}' ;  it  does  not  promise 
a  payment  by  the  present  treasurer  at  all  events,  but  by  him  "  or  his 
successors  in  office,"  which  could  not  be  if  the  note  were  merelj-  his 
personal  act,  and  not  the  act  of  the  corporation  whose  agent  he  was ; 
and  the  designation  of  his  office  is  repeated  after  his  signature.  In 
short,  the  note  not  only  names  the  principal,  describes  the  relation 
between  the  principal  and  the  agent,  and  declares  the  note  to  be 
made  in  execution  of  the  agenc\-,  but  it  cannot  take  effect  according  to 
its  terms,  except  as  the  note  of  the  principal. 

As  the  intention  to  bind  the  defendants  thus  appears  upon  the  face 
of  the  note,  and  it  is  alleged  in  the  declaration  and  admitted  by  the 
demurrer  that  the  agent  had  authorit}'  to  bind  them,  the  judgment 
must  be  Demurrer  overncled.^ 

1  See  Klostermami  v.  Loos,  58  Mo.  290  (1874).  —  Ed. 


614  TUCKER  MANUFACTUKING   CO.   V.   FAIRBANKS.      [CHAP.  IT. 


TUCKER  MANUFACTURING   COMPANY  v.  FAIRBANKS  and 

OTHERS. 

Supreme  Judicial  Court  of  Massachusetts.     1867. 

[98  Mass.  101.] 

Contract  against  David  Fairbanlis  &  Co.  as  drawers  of  the  following 
bill  of  exchange  :  — 

"  $4,469.76.  Boston,  March  23,  18C6. 

"  Two  months  after  date  pay  to  the  order  of  Messrs.  Hiram  Tucker 
&,  Co.,  four  thousand  four  hundred  and  sixty-nine  -{-^^^  dollars,  value 
received,  and  charge  the  same  to  account  of 

"  David  Fairbanks  &  Co., 

"  Agts.  Piscataqua  F.  &  M.  Ins.  Co. 
"  To  Piscataqua  F.  «fe  M.  Insurance  Co.,  So.  Berwick,  Me." 

Across  the  face  of  the  draft  was  written,  "  Accepted  for  the  Treasurer, 
David  Fairbanks,  President;"  and  on  the  back,  "Payable  in  Boston, 
Hiram  Tucker  &  Co." 

Trial  by  jury  was  waived,  and  the  case  heard  by  Foster,  J.,  who 
found  the  following  facts  :  The  signatures  of  all  the  parties  to  the  bill 
were  proved  or  admitted.  It  was  actually  made  and  delivered  to  the 
offlcers  of  the  plaintiff  corporation,  and  accepted  by  them  on  the  3d  of 
April,  1866,  in  payment  and  satisfaction  of  the  amount  of  a  loss  by  fire, 
due  on  a  policy  of  insurance  eflTected  by  Hiram  Tucker  &  Co.  in  the 
Piscataqua  Fire  and  Marine  Insurance  Company,  which  had  been 
ascertained  on  the  23d  of  March,  and  was  payable  sixty  days  after- 
wards, and  had  been  assigned  by  Hiram  Tucker  &  Co.  to  the  plaintiffs 
on  the  26th  of  March.  The  plaintiffs  had  full  knowledge  of  all  the  cir- 
cumstances under  which  the  bill  was  made.  The  insurance  company, 
at  the  time  of  delivering  it,  took  from  the  plaintiffs'  treasurer  this 
receipt : — 

"  Piscataqua  ¥ire  and  Marine  Ins.  Co.,  Treasurer's  Office, 
"  $4,469.76.  So.  Berwick,  Me.,  April  3,  1866. 

♦'  Received  of  the  Piscataqua  Fire  and  Marine  Insurance  Company, 
forty-four  hundred  and  sixt3'-nine  and  -f/vr  dollars,  in  full,  for  loss  and 
damage  to  my  property  by  fire  on  the  19th  of  March,  1866,  insured  by 
policy  No.  16,907  in  said  company. 

"  Tucker  Manufacturing  Co.  R.  S.  Fay,  Treas." 

No  evidence  was  offered  of  an}'  fraud  attending  the  making  of  the 
bill.  The  defendants  offered  parol  evidence  tending  to  show  that  it 
was  not  expected  or  intended  that  they  should  be  liable  on  the  bill,  that 
it  was  given  onlj'  to  settle  the  loss,  and  was  supposed  and  expected  by 
both  parties  to  create  a  debt  against  no  one  but  the  insurance  company. 


SECT.  III.]      TUCKKR   MANUFACTURING   CO.    V.    FAIRBANKS.  615 

But  the  judge  excluded  such  evidence,  and  held  that  the  question  of  the 
defendants'  liability  must  be  deteiruined  by  the  instrument  itself.^  .  .  . 

Upon  these  facts  the  presiding  judge  found  that  due  presentment  and 
notice  had  be^ri  waived  b}-  the  defendants ;  and  reserved  the  questions, 
whether  the  facts  warranted  this  finding,  whether  the  defendants  were 
liable  personally'  as  drawers  on  the  face  of  the  bill,  and  whether  the 
parol  evidence  offered  by  them  should  have  been  received  for  the  con- 
sideration of  the  full  court,  according  to  whose  opinion  judgment  was 
to  be  entered  for  the  plaintiff,  or  for  the  defendant,  or  a  new  trial 
ordered. 

(7.  Ji7-owne,  for  the  plaintiffs. 

JL  A.  /Scudder,  for  the  defendants. 

Gray,  J.^  2.  It  is  equally  clear  that  the  liability  of  the  defendants 
as  drawers  of  a  negotiable  instrument  must  be  determined  from  the 
instrument  itself.  This  is  too  well  settled  to  admit  of  discussion. 
There  is  no  distinction  in  this  respect  between  the  drawer  of  a  bill  of 
exchange  and  the  maker  of  a  promissor}'  note.  Bank  of  British  North 
America  v.  Hooper,  5  Gra^-,  567  ;  Bass  v.  O'Brien,  12  Gra}',  481 ; 
Slawson  v.  Loring,  5  Allen,  342  ;  Barlow  v.  Congregational  Societ}'  in 
Lee,  8  Allen,  460  ;  Arnold  v.  Sprague,  34  Vt.  402  ;  Met.  Con.  108. 

3.  The  question  whether  the  defendants  are  liable  upon  the  face  of 
the  bill  requires  more  consideration.  The  difficulty  is  not  in  ascertaining 
the  general  principles  which  must  govern  cases  of  this  nature,  but  in 
applying  them  to  the  different  forms  and  shades  of  expression  in  par- 
ticular instruments.  In  order  to  exempt  an  agent  from  liability  upon 
an  instrument  executed  by  him  within  the  scope  of  his  agenc}',  he  must 
not  only  name  his  principal,  but  he  must  express  by  some  form  of  words 
that  the  writing  is  the  act  of  the  principal,  though  done  by  the  hand  of 
the  agent.  If  he  expresses  this,  the  principal  is  bound,  and  the  agent 
is  not  But  a  mere  description  of  the  general  relation  or  office  which 
the  person  signing  the  paper  holds  to  another  person  or  to  a  corporation, 
without  indicating  that  the  particular  signature  is  made  in  the  execution 
of  the  office  and  agenc}',  is  not  sufficient  to  charge  the  principal  or  to 
exempt  the  agent  from  personal  liabilit}'.  Amid  the  great  variet}'  of 
language  which  may  be  used  b}'  merchants  in  haste  or  thoughtlessness, 
ignorant  or  unmindful  of  legal  rules,  or  not  anticipating  the  importance 
of  holding  one  part}'  rather  than  the  other  responsible,  it  must  often 
happen  that  cases  fall  ver}'  near  the  dividing  line  ;  and,  in  order  to 
maintain  uniformity  of  decision,  it  is  necessary  for  the  court  to  refer 
to  the  cases  already  adjudicated,  especially  within  its  own  jurisdiction. 

The  authority  which  at  first  sight  seems  most  strongly  to  support  the 
position  of  the  defendants  is  that  of  Ballon  v.  Talbot,  16  Mass.  461,  in 
which  a  note  signed  "  Joseph  Talbot,  agent  for  David  Perr}',"  was  held 
not  to  bind  Talbot  personally.     That  case  has  since  been  recognized 

*  Facts  indicating  waiver  of  presentment  and  notice  have  been  omitted.  —  Ed. 
'  After  discussing  the  waiver  of  presentment  and  notice.  —  Ed. 


616  TUCKER    MANUFACTURING   CO.   V.    FAIRBANKS.       [CHAP.  IV. 

and  followed  in  this  Commonwealth.  Jefts  v.  York,  4  Cush.  372  ;  Page 
V.  Wight,  14  Allen,  182.  But  the  important  and  effective  word  in 
Ballon  V.  Talbot  was  not  the  word  ''agent,"  nor  th^^,  name  of  the 
principal,  but  the  connecting  word  "  for,"  which  might  ibdeed  indicate 
merely  the  relation  which  the  agent  held  to  the  principal ;  but  which 
was  equally  apt  to  express  the  fact  that  the  act  was  done  in  behalf  of 
the  principal,  in  the  same  manner  as  if  the  words  had  been  trans{)Osed 
thus:  "For  David  Perr}',  Josei)h  Talbot,  agent."  See  Deslandes  v. 
Gregory,  2  El.  &  El.  602.  This  is  made  manifest  by  considering  that 
if  the  word  "  agent"  had  been  wholly  omitted,  and  the  form  of  the 
signature  had  been  simply  "  Joseph  Talbot,  for  David  Perry,"  or  "  For 
David  Perrj',  Joseph  Talbot,"  it  would  have  been  well  executed  as  the 
contract  of  the  principal,  even  if  it  had  been  under  seal,  and  of  course 
not  less  so  in  the  case  of  a  simple  contract.  Long  v.  Colburn,  11  Mass. 
97;  Emerson  v.  Providence  Hat  Manufacturing  Co.,  12  Mass.  237; 
Mussey  v.  Scott,  7  Cush.  215;  Met.  Con.  105,  110, 

On  the  other  hand,  in  Hills  v.  Bannister,  8  Cowen,  31,  a  note  signed 
by  two  persons,  with  the  addition  "  Trustees  of  Union  Religious 
Society,  Phelps"  (who  were  a  legal  corporation),  was  held  to  bind  the 
signers  personally  ;  and  in  Barker  v.  Mechanic  Insurance  Co.,  3  Wend. 
94,  a  note  signed  "  John  Franklin,  President  of  the  Mechanic  Fire 
Insurance  Company,"  was  held  on  demurrer  not  to  be  the  note  of  the 
company,  although  alleged  to  have  been  made  within  the  authority  of 
the  president  and  the  scope  of  the  legitimate  business  of  the  corporation  ; 
the  court  saying  :  "In  this  case,  there  is  an  averment  that  the  president 
was  lawfully'  authorized  ;  but  it  does  not  appear  that  he  acted  under 
that  authority  ;  he  does  not  say  that  he  signs  for  the  company  /  he 
describes  himself  as  president  of  the  compan\-,  but  to  conclude  the 
compan}'  by  his  acts  he  should  have  contracted  in  their  name,  or  at 
least  on  their  behalf."  The  variation  between  the  words  "for"  and 
"  of"  seems  at  first  view  slight;  but  in  the  connection  in  which  they 
are  used  in  signatures  of  this  kind  the  difference  is  substantial.  "  Agent 
of"  or  "  president  of"  a  corporation  named  simpl}-  designates  a  personal 
relation  of  the  individual  to  the  corporation.  "  Agent  for  "  a  particular 
person  or  corporation  may  designate  either  the  general  relation  which 
the  person  signing  holds  to  another  part}',  or  that  the  particular  act  in 
question  is  done  in  behalf  of  and  as  the  verj'  contract  of  that  other ; 
and  the  court,  if  such  is  manifestly  the  intention  of  the  parties,  ma}' 
construe  the  words  in  the  latter  sense.  But  even  "  agent  for"  has  been 
held  under  some  circumstances  a  mere  descriptio  personce  of  the  agent, 
as  in  De  Witt  v.  Walton,  5  Selden,  570,  in  which  the  name  following 
these  words  was  not  the  proper  name  of  the  principal,  but  the  name  of 
a  newspaper  which  the  agent  carried  on  in  the  principal's  behalf,  and  a 
note  signed  "  David  Hoyt,  agent  for  The  Churchman,"  was  held  to  be 
the  note  of  Hoyt  and  not  of  his  principal ;  and  in  Shattuck  v.  Eastman, 
12  Allen,  369,  in  which  it  was  held  that  a  paper  in  the  form  of  a 
receipt,  signed  "  Robert  Eastman,  Agent  for  Ward  6,  Lowell,  Mass.," 


SECT.  III.]       TUCKER   MANUFACTURING    CO.    V.    FAIRBANKS.  617 

if  executed  under  such  circumstances  as  to  amount  to  a  contract,  might 
be  binding  on  the  agent  personall}'.  In  Fiske  o.  Eldridge,  12  Gray, 
474,  in  a  careful  review  of  the  cases  by  Mr.  Justice  Dewey,  the  New 
York  decisions  above  mentioned  were  quoted  with  approval,  and  a  note 
signed  "  John  T.  Eldridge,  Trustee  of  Sullivan  Railroad,"  was  held  to 
be  the  personal  note  of  Eldridge.  In  Haverhill  Insurance  Co.  v.  New- 
hall,  1  Allen,  130,  a  note  signed  "  Cheever  Newhall,  President  of  the 
Dorchester  Avenue  Kuilroad  Company,"  was  held  to  bind  Newhall 
personally',  although  given  by  him  to  an  insurance  compan}'  (as  was 
expressed  in  the  note  itself)  in  consideration  of  a  policy  issued  to  the 
railroad  corporation,  which  he  was  in  fact  authorized  to  obtain  and  sign 
the  note  for.  See  also  Fullam  v.  West  Brookfield,  9  Allen,  1  ;  Morell 
V.  Codding,  4  Allen,  403  ;  Tanner  v.  Christian,  4  El.  «&  Bl.  591  ;  Parker 
V.  Winslow,  7  El.  &  Bl.  942;  Price  v.  Taylor,  5  II.  &  N.  540; 
Bottomley  v.  Fisher,  1  11.  &  C.  211. 

This  case  is  not  distinguishable  from  those  just  stated.  It  differs 
from  Ballon  v.  Talbot,  in  omitting  the  word  "  for  "  (the  only  evidence, 
contained  in  the  note  there  sued  on,  that  it  was  made  in  behalf  of  the 
principal),  leaving  the  words  "  Agts.  Piscataqua  F.  &  M.  Ins.  Co."  as 
a  mere  description  of  the  persons  signing  this  bill.  The  cases  of  Mann 
V.  Chandler,  9  Mass.  335  ;  Despatch  Line  of  Packets  v.  Bellamy  Manu- 
facturing Co.,  12  N.  II.  205,  and  Johnson  v.  Smith,  21  Conn.  627,  can- 
not avail  the  defendants  against  the  later  decisions  of  this  court.  See 
12  Gray,  476  ;  8  Allen,  461,  462.  The  name  of  the  principal  does  not 
appear  in  the  body  of  the  bill.  The  address  of  the  bill  to  the  corpora- 
tion and  the  request  to  them  to  charge  the  amount  to  the  account  of  the 
drawers  have  certainly  no  tendency  to  show  that  the  drawers  are  the 
same  as  the  corporation,  the  drawees.  The  fact  that  the  bill  was 
delivered  to  the  plaintiffs  h\  the  insurance  company,  as  shown  b}-  the 
contemporaneous  receipt,  does  not  make  it  the  less  the  promise  of  the 
signers.  The  defendants  must  therefore  be  held  personally  responsible 
as  the  drawers  of  the  bill.  Judgment  for  the  plaintiffs} 

1  Compare  Chipman  v.  Foster,  119  Mass.  189  (1875).  —  Ed. 


618  CARPENTER   V.    FAKNSWORTH.  [CHAP.  IV. 


carpp:nter  v.  farnsworth. 

Supreme  Judicial  Court  of  Massachusetts.     1871. 

[106  Mass.  561]. 

Contract  on  a  bank  check,  of  the  face  of  which  the  following  is  a 
copy  :  — 

The  Boston  National  Bank. 
$19.20.  Boston,  September  9,  18G9. 

Pay  to  L.  W.  Chamberlin  oi"  J.  E.  Carpenter  or  order,  nine- 
teen dollars  fo"^. 

I.  D.  Farnsworth,   Treasurer. 


^tna 
mills. 


The  case  was  submitted  to  the  judgment  of  the  Superior  Court,  and 
on  appeal  of  this  court,  on  facts  agreed  substantially  as  follows  :  The 
iEtna  Mills  owed  Chamberlin  $19.20  for  an  order  accepted  by  them 
payable  to  him  or  order,  and  Chamberlin  indorsed  the  order  to  the 
plaintiff,  who  requested  the  defendant  to  pay  it,  whereupon  the  defend- 
ant, who  was  the  treasurer  of  the  ^tna  Mills  and  authorized  to  sign 
checks  for  them,  gave  the  plaintiff  the  check  declared  on.  The  Boston 
National  Bank  refused  payment  of  the  check,  and  due  notice  thereof 
was  given  to  the  defendant. 

«/]  -K  Carpenter,  pro  se. 

W.  P.   Walley,  for  the  defendant. 

Gray,  J.  The  writing  sued  on,  being  paj-able  in  the  alternative  to 
either  of  the  persons  named  or  order,  would  seem  not  to  be  a  negotiable 
instrument.  Osgood  v.  Pearsons,  4  Gray,  455.  But  it  is  immaterial 
whether  it  is  or  is  not.  If  it  is,  the  question  who  is  liable  thereon  as 
drawer  must  in  all  cases  be  determined  from  the  instrument  itself. 
Tucker  Manufacturing  Co.  v.  Fairbanks,  98  Mass.  101,  104,  and  au- 
thorities there  cited.  If  it  is  not,  there  is  nothing  in  the  circumstances 
under  which  it  was  made  to  show  an  intention  to  charge  the  defendant 
personall}',  for  it  is  admitted  to  have  been  given  in  payment  for  a  debt 
of  the  ^Etna  Mills.  And  accordingly  the  only  ground  upon  which  the 
plaintiff  seeks  to  charge  the  defendant  is  that  he  appears  upon  the  face 
of  the  paper  to  be  the  drawer  thereof. 

But  we  are  of  opinion  that  this  case  does  not  fall  within  that  class, 
to  which  all  those  cited  for  the  plaintiff  belong,  in  which  the  name  of 
the  principal  appears  upon  the  instrument  by  way  of  mere  designation 
of  the  general  relation  which  the  signer  holds  to  a  corporation  ;  and 
that  this  check  manifests  upon  its  face  that  the  writing  is  the  act  of  the 
principal,  though  done  by  the  hand  of  an  agent,  or  in  other  words,  that 
it  is  the  check  of  the  ^tna  Mills,  executed  by  Farnsworth  as  their 
treasurer  and  in  their  behalf. 

The  case  is  not  distinguishable  from  those  in  which  similar  instru- 
ments have  been  held  by  this  court  to  be  the  contracts  of  the  principal 


SECT.  III.]  STURDIVANT   V.    HULL.  619 

only.  The  court  has  always  laid  hold  of  anj-  indication  on  the  face  of 
the  paper,  however  informally  expressed,  to  enable  it  to  carry  out  the 
intentions  of  the  parties.  In  Tripp  v.  Swanzey  Paper  Co.,  13  Pick. 
291,  a  draft  not  naming  the  principal  otherwise  than  by  concluding 
"and  charge  the  same  to  the  Swanzey  Paper  Couipan}",  yours  respect- 
full}',  Joseph  Hooper,  Agent,"  was  held  to  be  the  draft  of  the  company. 
In  Fuller  v.  Hooper,  3  Gray,  334,  a  draft  with  the  words  "  Pompton 
Iron  Works  "  printed  in  tiie  margin,  and  concluding  "  which  place  to 
account  of  Pompton  Iron  Works,  W.  Burtt,  Agent,"  was  held  to  bind 
the  proprietor  of  the  Pompton  Iron  Works  ;  and  in  Bank  of  British 
North  America  v.  Hooper,  5  Gray,  567,  in  which  a  draft  concluding 
"  and  charge  the  same  to  account  of  Proprietors  Pembroke  Iron 
Works,  your  humble  servant,  Joseph  Barrell,"  without  otherwise  nam- 
ing a  principal  or  disclosing  the  signer's  agenc}',  was  held  to  bind  Iiim 
only,  it  was  said  by  the  court  that  in  Fuller  r.  Hooper,  the  words 
"Pompton  Iron  Works  "  in  the  margin  of  the  draft  fully  disclosed  the 
principal,  and  that  the  draft  was  drawn  on  his  behalf.  So  in  Slawson 
V.  Loring,  5  Allen,  340,  343,  in  which  a  draft,  having  the  words  "Office 
of  Portage  Lake  Manufacturing  Company,  Hancock,  Michigan,"  printed 
at  the  top,  was  signed  "  I.  R.  Jackson,  Agent,"  Chief  Justice  Bigelow 
said,  "  No  one  can  doubt  that  on  bills  thus  drawn  the  agent  full}'  dis- 
closes his  principal,  and  that  the  drawer  could  not  be  personally  charge- 
able thereon." 

The  instrument  in  question  therefore  binds  the  corporation,  and  not 
its  treasurer  personall}*;  the  judgment  of  the  Superior  Court  must  be 
reversed,  and  there  must  be  Judgment  for  the  defendant?- 


STURDIVANT  and  another  y.    HULL. 
Supreme  Court  of  Maine.     1871. 
[59  3/e.  172.] 

On  exceptions  to  the  ruling  of  Goddard,  J.,  of  the  Superior  Court 
for  the  county  of  Cumberland,  at  the  November  term,  1870. 

Bakuows,  J.  Assumpsit  by  the  payees  against  the  maker  of  a 
promissor}'  note  of  the  following  tenor :  — 

$•225.00  Portland,  Dec.  20,  1869. 

Four  months  after  date,  I  promise  to  pay  to  the  order  of 
Sturdivant  «fe  Co.,  two  hundred  and  twenty-five  dollars. 
Payable  at  either  bank  in  Portland,  with  interest.  Value 
received. 

John  T.  Hull,  Treas.  St.  Paul's  ParisK 

1  Ace. :  Hitchcock  v.  Biichauan,  103  U.  S.  416  (1881).  — Ed. 


U.S.I.R 

Stamp. 
25  cents. 


620  STURDIVANT  V.   HULL.  [CHAP.  IV. 

The  signature  to  the  note  was  not  denied,  but  the  defendant  offered 
to  prove,  and  if  evidence  dehors  the  note  is  admissible  for  that  purpose 
we  must  consider  it  as  proved,  that  at  the  time  the  note  was  made 
defendant  was  treasurer  of  8t.  Paul's  Parish,  and  made  the  note  in 
suit,  in  behalf  of  said  parish  and  for  their  sole  benefit,  in  renewal  of  a 
former  note  given  by  his  predecessor,  Mood}-,  for  lumber  used  in  build- 
ing their  parish  church,  and  that  defendant  never  received  any  personal 
consideration  or  any  consideration  for  the  note,  other  than  the  fore- 
going. And  that  these  facts  were  known  to  the  plaintiffs  when  the 
note  was  given,  and  that  the  understanding  and  intention  of  both 
parties,  then,  was  that  it  was  the  note  of  the  parish  and  not  of  the 
defendant. 

As  the  suit  is  between  the  original  parties  to  the  note,  it  follows  that 
if  the  proffered  evidence  showed  that  there  was  no  valid  consideration 
for  the  defendant's  promise,  it  should  have  been  admitted.  But  such 
is  not  the  case.  It  is  not  necessary  that  the  consideration  should  have 
enured  to  the  personal  benefit  of  tlie  promisor,  and  the  surrender  of 
the  previous  note,  or  the  extension  of  the  term  of  credit  originally 
given  to  the  parish  for  the  lumber,  would,  either  of  them,  be  a  suf- 
ficient consideration  for  the  defendant's  note. 

The  case  presents  but  two  questions  :  — 

1.  Whether  the  defendant's  liability  must  be  determined  solel}'  by 
the  written  instrument  which  he  has  subscribed,  excluding  the  evidence 
above  offered  to  control  its  construction? 

2.  If  so,  does  the  true  construction  of  it  make  it  his  note,  or  that  of 
the  parish  ? 

I.  Now,  when  parties  are  competent  witnesses,  and  stand  ready  to 
testif}'  (if  allowed)  not  only  to  their  own  intentions,  but  to  those  of  the 
other  part}'  to  the  contract,  the  wisdom  of  the  long  established  rule, 
which  requires  all  parties  to  written  contracts,  at  their  peril,  to  state 
what  they  mean  to  abide  by  in  the  writing  itself,  and  prohibits  them 
from  resorting  to  oral  testimon}'  to  contradict  or  vary  its  terms,  grows 
more  apparent  every  da}-. 

One  of  the  illustrations  of  this  rule,  given  by  Mr.  Greenleaf  in  his 
Treatise  on  Evidence,  Vol.  1,  p.  320,  ed.  of  1842  (citing  Stackpole  v. 
Arnold,  11  Mass.  27),  runs  thus:  "Where  one  signed  a  promissory 
note  in  his  own  name,  parol  evidence  was  held  inadmissible  to  show 
that  he  signed  it  as  the  agent  of  another,  on  whose  property  he  had 
caused  insurance  to  be  effected  by  the  plaintiff,  at  the  owner's 
request." 

When  a  man  has  deliberately  said,  in  writing,  "  I  promise  to  pay," 
and  a  valid  consideration  for  the  promise  is  shown,  right  and  justice 
are  not  very  likely  to  be  the  gainers  by  allowing  him  to  retract  and  to 
undertake  to  prove  that  he  did  not  actually  mean,  "  I  promise,"  but 
that  he  meant,  and  the  other  party  understood  that  he  meant,  that 
some  third  party,  whose  promise  the  writing  does  not  purport  to  be, 
undertook  the  payment. 


SECT.  III.]  STURDIVANT    V.    HTLL.  021 

It  is  better  that  a  careless  or  ignorant  agent  should  somotinies  pay  for 
his  principal,  than  to  subject  the  construction  of  valid  written  contracts 
to  the  manifold  perversions,  misapprehensions,  "and  uncertainties  of 
oral  testimon}'. 

And  upon  this  point  the  decisions  (although,  in  cases  of  like  type 
•with  this,  they  are  soinewJKit  conflicting,  or  at  least,  distinguished  with 
scared}^  a  shade  of  difference,  upon  the  question  of  the  construction 
of  the  instrument  itself)  will  be  found  concurring.  Andrews  v.  Estes, 
1 1  Maine,  270 ;  Hancock  v.  Fairfield,  30  Maine,  299  ;  Slawson  v. 
.Loring,  5  Allen,  342  ;  Draper  v.  Mass.  Steam  Heating  Co.,  5  Allen, 
338  ;  Barlow  v.  Cong.  Soc.  in  Lee,  8  Allen,  400  ;  Tucker  Manuf.  Co. 
V.  Fairbanks,  98  Mass.  104,  and  cases  there  cited.  .  .    .^ 

The  defendant's  liability  must  be  ascertained  by  an  examination  of 
the  note  itself. 

n.  As  has  already  been  suggested,  the  cases  involving  the  construc- 
tion of  similar  instruments  are  more  difficult  to  reconcile  than  those  in 
which  the  point  just  disposed  of  has  been  considered.  Apparently 
slight  changes  in  the  phraseology  have  affected  the  construction  adopted 
by  different  courts,  and  by  the  same  court  in  different  cases.  There  is 
a  necessity  for  a  careful  examination  and  comparison  of  the  numerous 
decisions.  This  we  have  endeavored  to  make,  and  the  result  is,  we 
are  satisfied  that  the  weight  of  reason  and  authorit}'  demonstrates  that 
this  is  the  personal  contract  of  the  defendant  and  not  that  of  the  parish 
of  which  he  was  treasurer. 

There  are  no  appropriate  words  in  it  to  show  that  it  was  the  contract 
of  the  parish,  or  that  it  was  made  by  the  defendant  in  its  behalf.  He 
does  not  sa}'  that  he  promises  as  treasurer,  or  use  an}-  language  signifi- 
cative of  an  intention  to  bind  his  successors  iu  office,  as  in  Barlow  v. 
Cong.  Soc.  in  Lee  ;  iu  which  case  Mann  v.  Chandler,  a  per  curiam 
opinion  reported  9  Mass.  335,  is  disavowed  as  an  authority,  and  it  is 
said  that  "all  the  decisions  of  this  court  upon  unsealed  instruments, 
since  the  case  of  Mann  v.  Chandler,  have  required  something  more  than 
a  mere  description  of  the  general  relation  between  the  agent  and  the 
principal,  iu  order  to  make  them  the  contracts  of  the  latter."  lldt  8 
Allen,  461,  462,  463. 

In  Haverhill  M.  F.  Insurance  Co.  v.  Newhall,  1  Allen,  130.  upon  a 
note  signed,  "  Cheever  Xewhall,  president  of  the  Dorchester  Avenue 
Railroad  Company,"  though  it  was  agreed  that  the  defendant,  at  the 
time  of  signing  the  note,  was  the  president  of  said  company  ;  that  it 
was  given  in  consideration  of  a  policy  of  insurance  issued  b}-  the  plain- 
tiffs to  that  compan}-,  upon  property  owned  by  them,  and  that  the  de- 
fendant was  duly  authorized  b}'  the  companv  to  obtain  the  insurance 
and  sign  the  note,  it  was  held  that  the  form  of  the  note  onh'  was  to  be 
looked  at  upon  the  question  of  charging  the  defendant ;  that  he  had 

1  The  omitted  passages  pointed  out  that  the  general  rule  is  not  abrogated  by  cer- 
tain statutory  provisions.  —  Ed. 


622  STURDIVANT   V.    HULL.  [CHAP.  IV. 

fixed  a  personal  liabilit}' upon  himself  by  the  use  of  the  words,  "I  prom- 
ise to  pa}',"  and  that  this  liabilitj-  was  not  affected  b}'  the  descriptive 
addition  to  his  signature. 

In  Fiske  v.  PLldridge,  12  Gra}-,  474,  the  note  was  signed  "  Jolm  S. 
Eldridge,  Trustee  of  Sullivan  Railroad,"  and  tlie  defendant  was  held 
personally  liable,  though  he  proved  that  he  was  trustee  of  the  railroad 
company,  and  as  such  had  entire  charge  of  its  propertj'  and  business, 
and  gave  the  note  in  suit  to  take  up  a  promissor}-  note  of  the  corpora- 
tion, and  delivered  with  it  bonds  of  the  corporation  as  collateral  security 
for  its  payment. 

The  defendant's  counsel  relies  upon  certain  dicta  intimating  that  the 
case  of  Mann  v.  Chandler  vaay  be  sustained,  because  the  defendant 
there,  as  here,  was  treasurer  of  the  corporation,  and  that  the  signature 
of  that  officer  may  be  thought,  of  itself,  to  import  a  promise  of  the 
party  whose  treasurer  he  is. 

But  we  should  be  unwilling  to  say  that  the  treasurer  of  a  religious 
corporation  has  an}'  authority  b}-  virtue  of  his  office  to  bind  such  cor- 
poration b}'  the  issue  of  negotiable  promissor}-  notes,  or  that  the  official 
signature  of  such  treasurer  could  be  considered  as  indicating  the  asser- 
tion of  such  authority-,  any  more  than  the  signature  of  a  person  describ- 
ing himself  as  president  or  trustee  of  a  business  corporation  asserts 
the  requisite  authority  on  the  part  of  such  president  or  trustee. 

In  Mann  v.  Chandler,  relied  on  by  the  defendant,  the  special  author- 
it}'  conferred  b}'  the  directors  upon  the  treasurer  to  give  the  note  in 
suit  was  shown,  and  in  the  more  recent  cases  above  cited,  from  12  Gray 
and  1  Allen,  such  authority  was  either  admitted  or  proved  without  ob- 
jection. But  the  tendency  of  the  later  decisions,  manifestly,  is  to  hold 
the  man  who  sa^'s,  "  I  promise  to  pay  "  (without  stating  in  the  writing 
itself  that  he  promises  for  or  in  behalf  of  any  other  party),  responsible 
personally.  Why  should  it  not  be  so?  That  is  the  plain  and  direct 
import  of  the  language  he  uses.  "  I  "  is  not  the  language  of  a  corpora- 
tion or  an  association.  It  is  that  of  an  individual  signer.  If  such 
signer  appends  to  his  signature  a  description  of  himself  as  agent,  presi- 
dent, trustee,  or  treasurer  of  a  corporation,  it  may  import  a  declaration 
on  his  part,  that,  having  funds  of  such  corporation  in  his  possession, 
he  is  willing  to  be  responsible,  and  accordingly  makes  himself  respon- 
sible for  a  debt  of  theirs. 

And  this  clescriptio  personoi  may  aid  him  in  the  keeping  and  adjust- 
ment of  his  accounts  with  his  different  principals. 

But  without  some  words  in  the  contract  importing  that  he  promises 
for  or  in  behalf  of  his  principal,  he  cannot  avoid  the  personal  liability 
he  has  thus  assumed. 

In  Seaver  v.  Coburn,  10  Cush.  324,  the  contract  signed  b}'  defendant 
as  "  Treasurer  of  the  Eagle  Lodge,"  etc.,  was  held  binding  upon  him 
personall}'.  And  the  distinction  which  the  defendant  seeks  to  set  up, 
between  treasurers  and  other  officers  and  agents  of  corporations,  was 
io;nored. 


SECT.  III."]  STURDIYANT   V.   HULL.  623 

The  fact  that  it  has  been  suggested  as  a  possible  ground  upon  which 
the  case  of  Mann  o.  Chandler  (so  often  doubted,  and  so  recently'  denied 
to  be  an  authority  in  the  court  which  pronounced  it)  might  be  sustained., 
can  hardl}'  be  expected  to  avail  the  defendant  here. 

This  subject  has  been  elaborately  discussed  in  Tucker  Manuf.  Co.  v. 
Fairbanks,  98  Mass.  101,  and  in  Barlow  v.  Cong.  Soc.  in  Lee,  8  Allen, 
4G0,  and  what  we  have  alread}'  said  may  seem  superfluous. 

It  is  a  satisfaction,  however,  to  know  that  the  view  of  the  law  which 
we  take  comports  well  with  justice  also.  In  the  agreed  statement  of 
facets  which  the  parties  liave  appended  to  the  case,  it  appears  that  in 
Ma}',  1870,  the  parish  mortgaged  their  church  edifice  and  other  prop- 
erty to  Henry  A.  Neel}'  and  the  defendant  and  other  members  of  the 
parish  associated  with  them,  to  secure  them  for  liabilities  assumed  by 
them  for  the  parish,  and  that  in  the  following  month,  before  the  com- 
mencement of  this  suit,  the  equity  of  redemption  from  this  mortgage 
was  sold  on  execution  against  the  parish,  and  purchased  in  by  the 
mortgagees,  so  that  the  api)ropriation  of  the  materials  furnished  by  the 
plaintiffs  for  the  building  of  the  church,  without  compensation,  would 
seem  to  be  a  sort  of  pious  fraud  which  we  should  be  slow  to  sanction 
80  long  as  a  legal  reason  for  avoiding  it  could  be  found. 

In  the  agreed  statement  it  further  appears,  that  there  never  was  any 
vote  of  the  parish  authorizing  defendant,  as  treasurer  or  otherwise,  to 
sign  any  negotiable  or  other  paper  for  the  parish,  but,  that  at  a  meet- 
ing of  the  parish  in  September,  1869,  on  defendant's  motion,  it  was 
voted  that  the  parish  assume  the  payment  of  all  liabilities  thus  contracted 
by  said  Neeh',  the  defendant  and  others,  by  thus  signing  or  indorsing 
any  notes  for  the  parish,  and  that  they  would  "  save  and  hold  harm- 
less, from  any  loss  or  injur}-,  all  persons  whatsoever,  who  may  have  or 
shall  hereafter  assume  or  become  responsible  for  the  payment  of  any 
debts  of  the  parish."  And  on  the  12th  da}-  of  May,  1870,  they  voted 
to  assume  the  payment  of  all  notes  signed  by  defendant  as  treas- 
urer. This  tardy  assumption  might  not  have  availed  the  plaintiffs  in  a 
suit  against  the  parish  on  this  note  ;  for  it  seems  to  have  been  held, 
that,  when  one  signs  as  agent  in  such  a  case,  his  authority  at  the  time 
must  be  shown,  and  that  subsequent  ratification  will  not  make  it  gO(  d 
as  the  act  of  the  principal- 
Tabor  V.  Cannon,  8  Met.  461  ;  Eossiter  y.  Rossiter,  8  Wendell,  499 
But  the  defendant,  who  is  mortgagee  of  all  the  church  property,  and 
co-owner  of  the  equity  of  redemption,  fortified  by  such  a  vote  may 
haply  find  means  to  make  it  available  for  his  protection. 

deceptions  overruled.     Judgment  for  plaintiffs. 

Appleton,  C.  J. ;  Kent,  Walton,  and  Dickerson,  JJ.,  concurred. 
T.  T.  Snow,  for  the  plaintiffs. 
A.  A.  Strout,  for  the  defendant.^ 

1  Ace:  Rendell  v.  Harriman,  7.5  Me.  497  (1883). 
Compare  Kean  v.  Davis,  21  N.J.  L.  683  (1847).  —  Ed. 


624  LIEBSCHER   V.    KRAUS.  [CHAP.  IV. 


LIEBSCHER,  Appellant,  v.  KRAUS,  Impleaded,  Respondent. 
Supreme  Court  of  Wisconsin.     1889. 

[74  Wis.  39,1.'] 

Appeal  from  the  Circuit  Court  for  Milwaukee  County. 

The  ease  is  stated  in  the  opinion. 

For  the  appellant  the  cause  was  submitted  on  the  brief  of  Frank  J. 
Lenicheck,  attorney,  and  J.  G.  McKenney,  of  counsel. 

For  the  respondent  there  was  a  brief  by  Winkler.,  Flanders^  Smith., 
Jiottum  &  Vilas,  and  oral  argument  b}'  F.   C.   Winkler. 

Orton,  J.     This  action  was  brought  on  the   following   promissory 
note :  — 
"  $637.40.  Milwaukee,  January  Ist,  1887. 

' '  Ninety  days  after  date  we  promise  to  pay  to  Leo  Liebscher,  or 
order,  the  sum  of  six  hundred  and  thirty-seven  dollars  and  forty  cents, 
value  received. 

"San  Pedro  Mining  and  Milling  Company. 

"  F.  Kraus,  President." 

The  plaintiff  demands  judgment  on  this  note  against  both  the  cor- 
poration and  Frederick  Kraus,  as  joint  makers.  The  defendant  Kraus 
answered  that  he  signed  the  note  for  the  said  San  Pedro  Mining  & 
Milling  Compan}-,  as  its  president,  and  not  otherwise,  and  that  his 
signature  was  placed  upon  said  note  for  the  purpose  of  showing  who 
executed  the  same  on  behalf  of  said  company,  and  as  a  part  of  the 
corporation  signature  to  the  note,  and  for  no  other  purpose.  The 
plaintiff  offered  to  prove  on  the  trial,  substantially,  that  Kraus  did  not 
sign  the  name  of  the  company,  but  signed  his  own  name  as  a  joint 
maker,  intending  to  bind  himself,  and  that  this  was  according  to  the 
understanding  of  the  parties  at  the  time.  This  ofler  was  rejected,  and 
a  verdict  in  favor  of  Kraus  was  directed  by  the  court.  This  evidence 
is  admissible  only  on  the  ground  that  there  is  an  ambiguity  in  the  signa- 
tures to  the  note.  If,  in  the  law,  this  signing  imports  that  both  the 
company  and  Kraus  are  jointly  bound,  or  that  only  the  company  is 
bound,  there  is  no  ambiguity,  and  parol  evidence  to  alter  or  varj-  this 
effect  is  inadmissible.  But  if,  in  the  law,  such  signing  imports  only  that 
both  are  bound,  or  that  the  company  only  is  bound  according  to  the 
facts  and  circumstances  in  explanation  of  it  and  the  intention  or  under- 
standing of  the  parties,  then  there  is  an  ambiguity  and  the  evidence 
was  proper. 

The  contention  of  the  learned  counsel  of  the  appellant  that  this  sign- 
ing imports  that  both  are  bound  is  inconsistent  with  the  offer  of  such 
evidence.  The  learned  counsel  of  the  appellant  has  expressed,  in  his 
brief,  the  true  principle  as  follows:  "As  to  the  question  of  parol  evi- 


SECT.  III.]  LIEBSCHER   V.    KEAUS.  625 

dence,  Ihe  rule  of  law  is  that  such  evidence  cannot  be  admitted  to  vary 
the  terms  of  a  contract,  or  to  show  contrary  intention  than  that  dis- 
closed by  the  instrument,  unless  there  is  an  ambiguity."  This  has  been 
often  decided  to  be  the  law  by  this  court.  Foster  v.  Clifford,  44  Wis, 
5G9  ;  Cooper  /'.  Cleghorn,  50  Wis.  113;  Hubbard  v.  Marshall,  oO  Wis. 
322;  GiUman  v.  Henry,  53  Wis.  470. 

TJjcre  appears  to  be  an  inconsistency  in  cases  where  it  is  first  held 
that  such  a  note  ipso  facto  binds  the  person  who  signed  it  with  his 
ofTicial  name,  and  yet  that  parol  evidence  might  be  given  to  make  it 
certain.  lietfner  v.  Brownell,  70  Iowa,  51)1.  This  case  is  mentioned 
as  the  only  one  in  which  it  has  been  decided  that  such  signing  binds 
the  person  as  well  as  the  corporation  ;  but  there  would  seem  to  be 
somewhat  of  an  ambiguity  in  the  opinion.  In  Bean  v.  Pioneer  Mining 
Co.,  66  Cal.  451,  it  seems  to  have  been  decided  that  a  similar  note 
bound  the  company  alone,  but  that  parol  evidence  was  proper  to  ex- 
plain it.  No  case  is  cited,  and  I  can  find  none,  where  it  has  been 
decided  squarely  that  such  a  note  bound  both  the  company  and  the  per- 
son whose  name  appears  below  with  the  name  of  his  office  or  agenc\', 
or  bound  the  company  alone,  except  the  case  of  Chase  v.  Pattberg, 
12  Daly,  171,  where  the  note  was:  "We  promise  to  pa}-,"  etc. 
"  [Signed]  P^nglish  S.  M.  Co.  H.  Pattberg,  Manager;  "  and  it  was 
decided  that  the  company'  was  not  bound,  but  that  Pattberg  was.  The 
authorities  are  generalh^  the  other  way.  In  Draper  v.  Massachusetts 
Steam-Heating  Co.,  5  Allen,  338,  the  note  was:  "We  promise  to 
pay,"  etc.  "  [Signed]  Massachusetts  Steam-Heating  Company.  L.  S. 
Fuller,  Treasurer."  In  Castle  v.  Belfast  Foundry'  Co.,  72  Me.  167,  it 
was  :  "  We  promise  to  pay,"  etc.,  "  at  office  Belfast  Foundry-  Company. 
[Signed]  Belfast  Foundry  Company.  W.  W.  Castle,  President." 
In  Falk  v.  Moebs,  127  U.  S.  597,  it  was  :  "  We  promise  to  pay,"  etc., 
"to  the  order  of  Geo.  Moebs,  Sec.  &  Treas.,  at,"  etc.  "  [Signed] 
Peninsular  Cigar  Co.  Geo.  Moebs,  Sec.  &  Treas.,"  and  indorsed 
"Geo.  Moebs,  Sec.  &  Treas."  These  notes  were  held  to  be  unambig- 
uous, and  not  explainable  by  parol  evidence,  and  the  notes  of  the 
companies  alone. 

Many  other  cases  of  similar  signing  are  found  in  the  above  cases  and 
in  the  text-books.  See,  also,  Mechem,  Ag.  §  439 ;  1  Rand.  Com. 
Paper,  188;  1  Daniel,  Neg.  Inst.  §§  299-305;  Gillet  v.  New  Market 
Savings  Bank,  7  Bradw.  499  ;  Scanlan  v.  Keith,  102  111.  634  ;  Latliam 
V.  Houston  Flour-Mills,  68  Tex.  137;  Story,  Ag.  §  154;  Pars.  Notes  & 
B.  312.  The  question  comes  very  near,  if  not  quite,  having  been 
decided  by  this  court  in  Houghton  v.  First  Nat.  Bank,  26  Wis.  663, 
where  it  is  held  that  an  indorsement  on  a  note  not  belonging  to  the 
bank,  by  "  Geo.  Buckley,  Cas.,"  he  being  cashier  of  the  bank,  bound 
the  bank  and  not  himself.  In  Ballston  Spa  Bank  v.  Marine  Bank,  16 
Wis.  120,  it  is  held  that  a  note  signed  by  "J.  H.  Sidmore,  Cash.," 
bound  the  l)ank  alone.  In  Rockwell  v.  Elkhorn  Bank,  13  Wis.  653, 
where  the  bank  promises  to  paj'  in  the  body  of  the  note,  and  it  is  signed 

40 


fjZQ  LIEBSCHER   V.    KRAUS.  [ClIAP.  IV. 

onl}'  bj'  "  D.  D.  Spenceu,  Cashier,"  it  was  held  tliat  the  bank  oiilj-  was 
bound. 

The  principle  of  these  authorities  seems  to  be  ''  that  if  the  agent  sign 
the  note  with  his  own  name  alone,  and  there  is  nothing  on  the  face  of 
the  note  to  show  that  he  was  acting  as  agent,  he  will  be  personall}' 
liable  :  but  if  his  agency  appears  with  his  signature,  then  his  principal 
only  is  bound."  Here  the  corporation  could  not  sign  its  own  name, 
and  it  is  not  otherwise  shown  on  the  face  of  the  note  than  that  Kraus 
signed  the  corporate  name,  and  by  adding  the  word  "  President,"  to 
his  own  name  he  shows  conclusively  that  as  president  of  the  corpora- 
tion he  signed  the  note,  and  not  otherwise.  Such  is  the  natural  and 
reasonable  construction  of  these  signatures,  and  so  it  would  be  gener- 
ally understood.  The  affix,  cashier,  secretary,  president,  or  agent,  to 
the  name  of  the  person  sufficiently  indicates  and  shows  that  such  per- 
son signed  the  bank  or  corporate  name,  and  in  that  character  and  capa- 
city alone.  The  use  of  the  word  "by"  or  "per"  or  "pro"  would 
not  add  to  the  certaint}-  of  what  is  thus  expressed.  It  is  not  common 
to  use  these  words  in  commercial  business.  It  is  sufficiently  under- 
stood that  the  paper  is  signed  b}-  the  officer  or  agent  named,  and  for 
the  corporation.  But  it  is  useless  to  prolong  this  discussion.  It  is 
almost  too  plain  for  argument.  The  note  was  that  of  the  corporation 
alone,  signed  by  Kraus  as  its  president.  The  Circuit  Court  properly 
rejected  the  offer  of  parol  proof,  and  correctly  instructed  the  jury  to 
find  a  verdict  in  favor  of  Kraus. 

By  the  Court.  —  T/ie  Judgment  of  the  Circuit  Court  is  affirmed} 

1  Ace. :  Reeve  v.  First  National  Bank,  54  N.  J.  L.  208  (1891). 
See  Miller  v.  Roach,  150  Mass.  140  (1889). 

For  additional  cases  on  the  topic  dealt  with  in  this  section,  see  1  Ames'  Cases  on 
Bills  and  Notes,  204,  2  id.  216,  221,  224,  550  et  seq.— Ed. 


SECT.  I.J  SCRIMSHIRE   V.    ALDEKTON.  627 


CHAPTER  V. 
UNDISCLOSED  PRINCIPAL. 


SECTION   I. 
Whether  the  Principal  can  hold  the  Third  Party. 

SCRIMSHIRE  V.  ALDERTON. 
Nisi  Prius,  Lee,  C.  J.     1742-43. 

[2  Sir.  1182.] 

The  plaintiff,  who  was  a  farmer  in  the  Isle  of  Ely,  sent  up  oats  to 
Bear-Key,  consigned  to  one  Hunt  as  his  factor.  The  custom  of  the 
trade  appeared  to  be,  that  formerly  the  factor  had  4f?.  per  quarter  for 
selling  them,  and  they  gave  immediate  notice  to  the  farmer  of  the 
name  of  the  buyer,  and  the  price :  but  this  being  inconvenient  to  farm- 
ers at  a  distance,  it  had  for  many  years  past  been  customar\-  for  the 
farmer  to  allow  '2d.  per  quarter  more,  upon  the  factor's  taking  the  risk 
of  the  debts :  since  which  they  had  ceased  to  inform  the  farmers  of  the 
buyers.  The  goods  in  the  present  case  were  sold  ;  but  the  factor  fail- 
ing, the  plaintiff  (before  actual  payment)  gave  notice  to  the  defendant 
(the  buyer)  not  to  pay  the  factor,  which  he  did,  notwithstanding :  and 
thereupon  this  action  was  brought. 

The  Chief  Justice  was  of  opinion,  that  this  new  method  had  not 
deprived  the  farmer  of  his  remedy  against  the  buyer,  provided  there 
was  no  payment  to  tha  factor.  And  the  onh'  reason  of  advancing 
2d.  per  quarter  was,  to  have  both  at  stake  :  and  here  being  notice 
before  actual  payment,  there  could  be  no  harm  done.  And  therefore 
he  directed  the  jury  in  favor  of  the  plaintiff.  They  went  out  and  found 
for  the  defendant;  were  sent  out  a  second  and  a  third  time  to  recon- 
sider it,  and  still  adhered  to  their  verdict ;  and  being  asked  man  by 
man,  tliey  separately  declared  the}-  found  for  the  defendant.  Upon 
this  a  new  trial  was  moved  for,  and  no  cause  being  shown  was  accord- 
ingly granted.  And  at  the  sittings  after  this  term  it  came  on  again 
before  a  special  jury  ;  when  the  Chief  Justice  declared,  that  a  factor's 
sale  does  b^-  the  general  rule  of  law  create  a  contract  between  the 


628  COTHAY  V.   FENNELL.  [CHAP.  V. 

owner  and  bu^'er.  But  notwithstanding  this,  the  jur}'  found  for  the  de- 
fendant ;  and  being  asked  their  reason,  declared,  that  tliey  thought 
from  the  circumstances  no  credit  was  given  as  between  the  owner  and 
buyer,  and  that  the  latter  was  answerable  to  the  factor  only,  and  he 
only  to  the  owner.  ^ 


COTHAY  AND   OTHERS  V.    FENNELL  and  others. 
King's  Bench.     1830. 

IIOB.^  C.  671.] 

Assumpsit  on  a  contract  for  the  sale  by  defendants  of  a  quantitj'  of 
Barbary  gum  to  the  plaintiffs.  Plea,  the  general  issue.  On  the 
trial  before  Lord  Tenterden,  C.  J.,  at  the  London  sittings  after  last 
Hilar}'  term,  it  appeared  that  Cothay  carried  on  business  in  London, 
others  of  the  plaintiffs  at  Glasgow,  and  the  rest  at  Manchester.  These 
three  firms  had  agreed  to  be  interested  in  the  purchase,  but  that  Cothay 
should  be  the  actual  purchaser ;  and  he  gave  the  order,  and  the  broker 
knew  him  only.  Upon  this  it  was  contended,  that  Cotha}'  alone  could 
sue  upon  the  contract  so  made.  Lord  Tenterden  overruled  the  objec- 
tion, and  the  plaintiffs  had  a  verdict,  the  defendants  having  leave  to 
move  to  entei'  a  nonsuit. 

Gurney  now  moved  accordingl}-,  and  contended,  that  the  private 
agreement  between  the  three  houses  did  not  give  them  a  joint  right  of 
action  against  the  vendors.  They  were  not  all  parties  to  the  contract, 
and  if  the  vendors  had  been  obliged  to  bring  an  action  on  the  contract, 
it  must  have  been  against  Cotha}'  alone.  [Littledale,  J.  Cannot  a 
dormant  partner  sue  on  a  contract  made  by  the  ostensible  partners?] 
Yes  ;  but  there  he  is  a  party  to  the  contract. 

1  In  Scott  V.  Surman,  Willes,  400,  405-406  (1742-43),  Willes,  C.  J.,  stated  thus 
the  case  of  Gurratt  r.  Cullum,  (K.  B.,  1710) :  — 

"  The  plaintiff  being  in  Ireland  employed  Bartwell  and  Mason  as  his  factors  in 
London  to  sell  goods  for  hira,  which  he  had  sent  to  them.  They  sell  a  parcel  to  J.  S. 
for  £20,  the  plaintiff  not  knowing  to  whom  they  were  sold,  nor  J.  S.  whose  goods 
they  were ;  but  they  were  delivered  to  him  as  the  goods  of  B.  and  M.  by  a  bill  of  par- 
cels and  charged  to  their  account  in  their  books  mutually.  B.  and  M.  before  pay- 
ment became  bankrupts,  and  their  debts  are  assigned  by  the  commissioners  to  the 
defendant,  who  afterwards  receives  the  £20  of  J.  S.  The  plaintiff  brought  an  action 
for  money  had  and  received  to  his  use  ;  and  this  matter  being  referred  by  Holt  for  the 
opinion  of  the  King's  Bench,  judgment  was  given  on  argument  for  the  plaintiff.  After- 
wards at  Guildhall  before  Lord  Chief  Justice  Parker,  this  case  was  cited  and  allowed  to 
be  law,  because  though  it  was  agreed  that  pay  ment  by  J.  S.  to  Bartwell  and  Mason  with 
whom  the  contract  was  made  would  be  a  discharge  to  J.  S.  against  the  principal,  yet 
the  debt  was  not  in  law  due  to  them,  but  to  the  person  whose  goods  they  were,  and 
therefore  it  was  not  assigned  to  the  defendant  by  a  general  assignment  of  their  debts, 
but  remained  due  to  the  plaintiff  as  before ;  and  being  paid  to  the  defendant  who  had 
no  right  to  have  it,  it  must  be  considered  in  law  as  paid  for  the  use  of  him  to  whom  it 
was  due,  and  so  an  action  will  lie  for  money  had  and  received  to  his  use."  —  Ed. 


SECT.  I.]  HUMBLE    V.    HUNTER.  629 

Per  Curiam.  If  an  agent  makes  a  contract  in  bis  own  name,  the 
principal  may  sue  and  be  sued  upon  it ;  for  it  is  a  general  rule,  that 
whenever  an  express  contract  is  made,  an  action  is  maintainable  upcJn 
it,  either  in  the  name  of  the  person  with  whom  it  was  actually  made,  or 
in  the  name  of  the  person  with  whom,  in  point  of  law,  it  was  made. 
In  Young  v.  Hunter,  4  Taunt.  582,  Gibbs,  C.  J.,  puts  one  special 
instance  to  the  contrary  ;  but  that  does  not  govern  the  present  case. 
Plere,  Cothay  may  be  considered  as  agent  for  the  Glasgow  and  Man- 
chester houses,  or  they  may  be  treated  as  dormant  partners  in  this 
transaction  ;  and  a  dormant  partner  in  one  instance  may  sue  as  well 
as  a  dormant  partner  in  the  general  business  of  a  mercantile  house. 

Mule  refused 


GRACE   HUMBLE  v.   HUNTER. 

Queen's  Bench.    1848. 

[12  Q.  B.  310.] 

Assumpsit,  on  a  charter-party,  for  freight,  demurrage,  &c.  The 
declaration  stated  the  instrument  as  "a  certain  charter-party  of 
affreightment,  then  made  between  the  plaintiff,  then  and  still  being 
the  owner  of  the  good  ship  or  vessel  called  Ann"  and  the  defendant. 
Pleas:  Non  assumpsit ;  and  others  which  it  is  unnecessary  to  state. 

On  the  trial,  before  Wightman,  J.,  at  the  Durham  Summer  assizes, 
1847,  the  charter-party  was  put  in,  signed,  not  b}-  the  plaintiff,  but  by 
her  son  :  and  the  words  of  agreement  were  :  "  It  is  "  "  mutualh'  agreed 
between  C.  J.  Humble,  Esq."  (the  son),  "  owner  of  the  good  ship  or 
vessel  called  The  Ann"  "  and  Jameson  Hunter,"  the  defendant. 
Humble  the  son  was  called  as  a  witness  on  behalf  of  the  plaintiff,  to 
prove  that  she  was  the  real  owner  of  the  vessel,  and  that  he  had  signed 
the  charter-part}^  as  her  agent,  and  not  as  principal.  This  line  of 
examination  was  objected  to  on  the  ground  that  a  person  who  has 
signed  a  contract  expressly  as  principal  cannot  be  admitted  to  prove, 
in  contradiction  to  the  written  instrument,  that  he  was  merely  an 
agent.  The  evidence  was  received,  and  a  verdict  found  for  the 
plaintiff.  Watson,  in  Michaelmas  term,  1847,  moved  for  a  new 
trial  on  account  of  the  reception  of  this  evidence,  and  on  other 
grounds.     The  court   granted    a  rule  nisi,   on  this   point  onl}'. 

Knowles  and  F.  Hobinsoii  showed  cause. 

Watson  and  PasMey,  contra. 

Lord  Denman,  C.  J.  "We  were  rather  inclined  at  first  to  think  that 
this  case  came  within  the  doctrine  that  a  principal  may  come  in  and 
take  the  benefit  of  a  contract  made  by  his  agent.  But  that  doctrine 
cannot  be  applied  where  the  agent  contracts  as  principal ;  and  he  has 
done  so  here  by  describing  himself  as  "owner"  of  the  ship.     The 


630  HUMBLE    V.    HUNTER.  [CHAP.  T. 

language  of  Lord  Ellenborough  in  Lucas  v.  De  la  Cour,  1  M.  &  S. 
249,  ''  If  one  partner  makes  a  contract  in  his  individual  capacit}',  and 
the  other  partners  are  willing  to  take  the  benefit  of  it,  the}-  must  be 
content  to  do  so  according  to  the  mode  in  which  the  contract  was 
made,"  is  verj'  apposite  to  the  present  case. 

Patteson,  J.  The  question  in  this  case  turns  on  the  form  of  the 
contract.  If  the  contract  bad  been  made  in  the  son's  name  merel}', 
without  more,  it  might  have  been  shown  that  he  was  agent  onh",  and 
that  the  plaintiff  was  the  principal.  But,  as  the  document  itself  repre- 
sents that  the  son  contracted  as  "  owner,"  Lucas  v.  De  La  Cour 
applies.  There  the  partner  who  made  the  contract  represented  that 
the  propert}-  which  was  the  subject  of  it  belonged  to  him  alone.  The 
plaintiff  here  must  be  taken  to  have  allowed  her  son  to  contract  in  this 
form,  and  must  be  bound  b}'  his  act.  In  Robson  v.  Drummond,  2 
B.  &  Ad.  303,  where  Sharpe,  a  coachraaker,  with  whom  Robson  was  a 
dormant  partner,  had  agreed  to  furnish  the  defendant  with  a  carriage 
for  five  3'ears,  at  a  certain  jearly  sum,  and  had  retired  from  the  busi- 
ness, and  assigned  all  his  interest  in  it  to  C.  before  the  end  of  the  first 
three  years,  it  was  held  that  an  action  could  not  be  maintained  by  the 
two  partners  against  the  defendant,  who  returned  the  carriage,  and 
refused  to  make  the  last  two  yearly  payments.  In  this  case  I  was  at 
first  in  the  plaintiff's  favor  on  account  of  the  general  principle  re- 
ferred to  b}'  m}-  Lord ;  but  the  form  of  the  contract  takes  the  case  out 
of  that  principle. 

WiGHTMAN,  J.'  I  thought  at  the  trial  that  this  case  was  governed 
b}'  Skinner  v.  Stocks,  4  B.  &  Aid.  437.  But  neither  in  that  nor  in 
any  case  of  the  kind  did  the  contracting  part}'  give  himself  an}'  special 
description,  or  make  any  assertion  of  title  to  the  subject-matter  of  the 
contract.  Here  the  plaintiff  describes  himself  expressly  as  "  owner" 
of  the  subject-matter.  This  brings  the  case  within  the  principle  of 
Lucas  V.  De  La  Cour  and   the  American  authorities  cited. 

Lord  Denman,  C.J.  Robson  v.  Drummond,  which  my  Brother 
Patteson  has  cited,  seems  the  same,  in  principle,  with  the  present 
case.  You  have  a  right  to  the  benefit  you  contemplate  from  the 
character,  credit,  and  substance  of  the  party  with  whom  }ou  contract. 

Itule  absolute. 

1  CoLERiDOE,  J.,  having  heard  the  argument  for  the  defendant  onlj,  gave  no 
judgment.  —  Rep. 


SECT.  1. 1  SCHMALTZ   V.    AVERY.  631 


SCHMALTZ  V.   AVERY 

Queen's  Bench.     1851. 

[16  Q.  B.  655.] 

Assumpsit  on  a  memorandum  of  charter  between  the  defendant  as 
shipowner  and  the  plaintiff  as  freighter.  Breach  :  that  defendant  would 
not  receive  cargo.  Plea :  JVbn  assumpsit.  Issue  thereon.  Other 
issues  of  fact,  which  it  is  unnecessary  to  state. 

On  the  trial,  before  Wigiitman,  J.,  at  the  Newcastle  summer  assizes, 
1850,  it  appeared  that  the  plaintiff  carried  on  business  under  the  firm 
of  Schmaltz  &  Co.  The  execution  of  a  charter-party  by  the  defendant 
was  proved.  It  was  expressed  to  be  made  between  the  defendant  as 
owner  of  the  ship  of  the  one  part  "  and  G.  Schmaltz  &  Co.  (agents  of 
the  freighter)  of  the  other  part."  At  the  end  of  the  charter-party 
there  was  a  memorandum  in  these  terms:  '♦  This  charter  being  con- 
cluded on  behalf  of  another  party,  it  is  agreed  that  all  responsibility  on 
the  part  of  G.  Schmaltz  &  Co.  shall  cease  as  soon  as  the  cargo  is 
shipped."  In  the  declaration  no  notice  was  taken  of  this  memoran- 
dum :  in  other  respects  the  agreement  set  out  corresponded  with  that 
proved.  Oral  evidence  was  given  that  the  plaintiff  was  in  truth  prin- 
cipal. The  learned  judge  directed  a  verdict  for  the  defendant  on  the 
issue  upon  JVbfi  (fssvmpsif,  leave  being  reserved  to  move  to  enter  a 
verdict  for  the  plaintiff  on  that  issue.  The  other  issues  were  left  to  the 
jury,  who  found  a  verdict  for  the  plaintiff  for  £5  10s.,  subject  to  leave 
to  enter  a  verdict  for  the  defendant  on  another  issue. 

Kiioides  obtained  a  rule  nisi  to  enter  a  verdict  for  the  plaintiffs  on 
the  issue  joined  on  the  plea  of  wo;i  assumpsit. 

Watson  and  Unthank  showed  cause. 

Knoides  and  Udall,  contra. 

Patteson,  J.^  It  is  conceded  that,  if  there  had  been  a  third  party 
who  was  the  real  freightei-,  such  part}'  might  have  sued,  although  his 
name  was  not  disclosed  in  the  charter-part}'.  But  the  question  is, 
whether  the  plaintiff  can  fill  both  characters  of  agent  and  principal ;  or, 
rather,  whether  he  can  repudiate  that  of  agent  and  adopt  that  of  prin- 
cipal ;  both  characters  being  referred  to  in  the  charter-part}",  but  the 
name  of  the  principal  not  being  therein  mentioned.  The  cases  princi- 
pally relied  on  for  the  defendant  were  Bickerton  v.  Burrell,  5  M.  &  S. 
383,  and  Rayner  v.  Grote,  15  M.  &  W.  359,  in  both  which  cases  the 
supposed  principal  was  named  in  the  instrument  of  contract :  also  the 
case  of  Humble  v.  Hunter,  12  Q.  B.  310.  In  the  case  of  Bickerton 
V.   Burrell,  the   plaintiff,   on   the   face  of  the   contract,  professed   to 

1  After  stating  the  case.  — Ed. 


632  SCHMALTZ    V.    AVERY.  [CHAP.   V. 

enter  into  it  as  agent  for  C.  Richardson.  At  the  trial,  C.  Richardson 
was  called  to  prove  that  her  name  was  used  without  her  knowledge, 
and  that  she  had  notliing  to  do  with  the  contract.  Lord  P^llenborough 
refused  to  receive  the  evidence,  and  nonsuited  the  plaintiff.  A  rule 
nisi  to  set  aside  the  nonsuit  was  obtained,  but  on  argument  was  dis- 
charged, on  the  ground  that  a  person  who  has  exhibited  himself  as 
agent  for  another  whom  he  names,  cannot  at  once  throw  off  that  char- 
acter and  put  himself  forward  as  principal  without  an}-  communication 
or  notice  to  the  other  party.  All  the  judges  relied  on  the  want  of  such 
notice,  which  seems  to  have  been  the  chief  ground  of  their  decision  ; 
for  the}'  considered  that  the  defendant  was  thereby  placed  in  great 
difficulty,  as  he  had  contracted  in  point  of  law  with  Richardson  and 
not  with  the  plaintiff,  and  might  have  no  means  of  ascertaining  or  even 
conjecturing  that  she  was  not  the  real  part}-  The  soundness  of  that 
ground  of  decision  was  somewhat  doubted  in  the  late  case  of  Rayner  v. 
Grote,  15  M.  &  W.  359.  There  the  plaintiff  contracted  as  agent  for 
Johnson,  but  was  in  truth  himself  the  principal.  He  sued  the  defend- 
ant for  not  accepting  and  paying  for  goods.  The  defendant  had 
accepted  and  paid  for  a  great  part  of  the  goods  sold,  and  knew,  before 
he  refused  the  residue,  that  the  plaintiff  was  the  real  principal :  and  so 
the  case  was  distinguishable  from  that  of  Bickerton  v.  Burrell,  5  M.  & 
S.  383,  upon  the  very  ground  on  which  that  decision  proceeded  ;  and 
the  plaintiff  was  held  to  be  entitled  to  sue.^  .  .  .  The  case  of  Jenkins 
V.  Hutchinson,  13  Q.  B.  744,  was  also  cited  for  the  defendant:  but  it 
proceeded  on  a  different  ground,  and  is  not  applicable  to  the  present 
question.  There  the  defendant  was  sought  to  be  charged  as  principal 
on  a  charter-party  executed  b}'  him,  on  the  face  of  it,  as  agent  for 
Barnes.  He  had  in  truth  no  authority  from  Barnes  ;  nor  was  he  him- 
self interested  at  all ;  and  the  Court  held  that  he  could  not  be  sued  as 
principal  without  showing  that  he  really  was  so.  A  distinction  was 
taken,  on  the  argument  in  the  present  case,  b}'  the  defendant's  counsel, 
between  an  executed  and  an  executor}'  contract :  and  it  was  said  that, 
whatever  might  be  the  rule  in  the  former  class  of  cases,  where  the  de- 
fendant has  received  the  benefit  of  tlie  contract,  and  it  is  probably 
immaterial  to  liim  whom  he  pays,  yet  that  in  the  latter  class  the  defend- 
ant cannot  properly  be  held  answerable  to  B.,  having  expressly  con- 
tracted with  A.  And  a  passage  in  the  judgment  of  the  court  in  Rayner 
V.  Grote,  15  M.  &  W.  359,  365,  was  much  relied  on.  "  If,  indeed,  the 
contract  had  been  wholly  unperformed,  and  one  which  the  plaintiff,  by 
merely  proving  himself  to  be  the  real  principal,  was  seeking  to  enforce, 
the  question  might  admit  of  some  doubt.  In  many  such  cases,  such 
as,  for  instance,  the  case  of  contracts  in  which  the  skill  or  solvency 
of  the  person  who  is  named  as  the  principal  may  reasonably  be  con- 
sidered as  a  material  ingredient  in  the  contract,  it  is  clear  that  the 
agent  cannot  then  show  himself  to  be  the  real  principal,  and  sue  in  his 

1  Here  was  stated  Humble  v.  Hunter,  ante,  p.  629.  — Ed. 


SECT.  I.]  SCHMALTZ    V.    AVEKV.  633 

own  name  ;  and  perhaps  it  may  be  fairly  urged  that  this,  in  all  execu- 
tory contracts,  if  wholly  unperformed,  or  if  partly  performed  without 
the  knowledge  of  who  is  the  real  principal,  may  be  the  general  rule." 
With  this  passage  we  entirely  agree  ;  but  it  is  plain  that  it  is  applicable 
only  to  cases  where  the  supposed  principal  is  named  in  the  contract : 
if  he  be  not  named,  it  is  impossible  that  the  other  party  can  have 
been  in  any  way  induced  to  enter  into  .the  contract  by  any  of  the 
reasons  suggested. 

In  the  present  case,  the  names  of  the  supposed  freighters  not  being 
inserted,  no  inducement  to  enter  into  the  contract  from  the  supposed 
solvency  of  the  freighters  can  be  surmised.  An}'  one  who  could  prove 
himself  to  have  been  the  real  freighter  and  principal,  whether  solvent 
or  not,  might  most  unquestionably'  have  sued  on  this  charter-party. 
The  defendant  cannot  have  been  in  any  wa}'  prejudiced  in  respect  to 
any  supposed  reliance  on  the  solvency  of  the  freighter,  since  the 
freighter  is  admitted  to  have  been  unknown  to  him,  and  he  did  not 
think  it  necessary  to  inquire  who  he  was.  It  is  indeed  possible  that  he 
may  have  been  contented  to  take  any  freighter  and  principal  provided 
it  was  not  the  present  plaintiff,  and  may  have  relied  on  the  terms  of 
the  charter-part}'  indicating  that  the  plaintiff  was  an  agent  ouh',  being 
willing  to  accept  of  any  one  else,  be  he  who  he  might,  as  principal 
After  all,  therefore,  the  question  is  reduced  to  this  :  Whether  we  are  to 
assume  that  the  defendant  did  so  rely  on  the  character  of  the  plaintiff 
as  agent  onl}',  and  would  not  have  contracted  with  him  as  principal  if 
he  had  known  him  so  to  be,  and  are  to  lay  it  down  as  a  broad  rule  that 
a  person  contracting  as  agent  for  an  unknown  and  unnamed  principal  is 
precluded  from  saying,  I  am  myself  that  principal.  Doubtless  his  sa}'- 
ing  so  does  in  some  measure  contradict  the  written  contract,  especially 
the  concluding  clause  which  sa3's :  "This  charter  being  concluded  on 
behalf  of  another  partv,"  &c. ;  for  there  was  no  such  other  parts'.  It 
ma}'  be  that  the  plaintiff  entered  into  the  charter-party  for  some  other 
party,  who  had  not  absolutely  authorized  him  to  do  so,  and  afterwards 
declined  taking  it ;  or  it  may  be  that  he  intended  originally  to  be  the 
principal:  in  either  case  the  charter-party  would  be,  strictly  speak- 
ing, contradicted  :  yet  the  defendant  does  not  appear  to  be  prejudiced  ; 
for,  as  he  was  regardless  who  the  real  freighter  was,  it  should  seem 
that  he  trusted  for  his  freight  to  his  lien  on  the  cargo.  But  there 
is  no  contradiction  of  the  charter-party  if  the  plaintiff  can  be  con- 
sidered as  filling  two  characters,  namely  those  of  agent  and  principal. 
A  man  cannot  in  strict  propriety  of  speech  be  said  to  be  agent  to  him- 
self. Yet,  in  a  contract  of  this  description,  we  see  no  absurdity  in 
saying  that  he  might  fill  both  characters  ;  that  he  might  contract  as 
agent  for  the  freighter,  whoever  that  freighter  might  turn  out  to  be, 
and  might  still  adopt  that  character  of  freighter  himself  if  he  chose. 

There  is  nothing  in  the  argument  that  the  plantiff's  responsibility  is 
expressly  made  to  cease  "  as  soon  as  the  cargo  is  shipped  ;  "  for  that 
limitation  plainly  applies   only  to  his  character  as  agent;  and,  being 


634  HUNTINGTON    V.    KNOX.  [CHAP.  V. 

real  principal,  his  responsibilit\'  would   unquestionably  continue  after 
the  cargo  was  shipped. 

Upon  the  whole,  we  are  of  opinion  that  this  rule  must  be  made 
absolute.  Hule  absolute} 


MEHITABEL  HUNTINGTON   v.   KNOX. 
Supreme  Judicial  Court  of  Massachusetts.     1851. 

[7  Cush.  371.2] 

Shaw,  C.  J.  This  action  is  brought  to  recover  the  value  of  a 
quantity  of  hemlocic  barli,  alleged  to  have  been  sold  by  the  plaintiff 
to  the  defendant,  at  certain  prices  charged.  The  declaration  was  for 
goods  sold  and  delivered,  with  the  usual  monej'  counts.  The  case 
was  submitted  to  a  referee  by  a  common  rule  of  court,  who  made  an 
award  in  favor  of  the  plaintiff,  subject  to  the  opinion  of  the  court  on 
questions  reserved,  stating  the  facts  in  his  report,  on  which  the  decision 
of  those  questions  depends. 

The  facts  tended  to  show  that  the  bark  was  the  property  of  the 
plaintiff ;  that  the  contract  for  the  sale  of  it  was  made  by  her  agent, 
George  H.  Huntington,  by  her  authority  ;  that  it  was  made  in  writing 
b}'  the  agent,  in  his  own  name,  not  stating  his  agency,  or  naming  or 
referring  to  the  plaintiff,  or  otherwise  intimating,  in  the  written 
contract,  that  any  other  person  than  the  agent  was  interested  in  the 
bark. 

Objection  was  made,  before  the  referee,  to  the  admission  of  parol 
evidence,  and  to  the  right  of  the  plaintiff  to  maintain  the  action  in 
her  own  name.  The  referee  decided  both  points  in  favor  of  the  plain- 
tiff, holding  that  the  action  could  be  maintained  by  the  principal  and 
owner  of  the  property,  subject  to  any  set-off  or  other  equitable  defence, 
which  the  buyer  might  have,  if  the  action  were  brought  by  the  agent. 

The  court  are  of  opinion,  that  this  decision  was  correct  upon  both 
points.  Indeed  they  resolve  themselves  substantially  into  one;  for 
prima  facie,  and  looking  only  at  the  paper  itself,  the  property  is  sold 
by  the  agent,  on  credit;  and  in  the  absence  of  all  other  proof,  a 
promise  of  payment  to  the  seller  would  be  imphed  by  law;  and  if 
that  presumption  of  fact  can  be  controverted,  so  as  to  raise  a  promise 
to  the  principal  by  implication,  it  must  be  by  evidence  aliunde,  proving 
the  agency  and  property  in  the  principal. 

It  is  now  well  settled  by  authorities,  that  when  the  property  of  one 
is  sold  by  another,  as  agent,  if  the  principal  give  notice  to  the  pur- 
chaser, before  payment,  to  pay  to  himself,  and  not  to  the  agent,  the 

1  See  Hunter  v.  Giddings,  97  Mass.  41  (1867). —Ed. 
^  Only  the  opinion  is  reprinted.  —  Ed. 


SECT.  I.]  HUNTINGTON   V.    KNOX.  635 

purchaser  is  bound  to  pay  the  principal,  subject  to  an}'  equities  of 
the   purchaser  against  the  agent. 

When  a  contract  is  made  by  deed  under  seal,  on  technical  grounds, 
no  one  but  a  party  to  the  deed  is  liable  to  be  sued  upon  it ;  and  there- 
fore, if  made  b}'  an  agent  or  attorne}-,  it  must  be  made  in  the  name  of 
the  principal,  in  order  that  he  may  be  a  part}',  because  otherwise  he  is 
not  bound  by  it. 

But  a  different  rule,  and  a  far  more  liberal  doctrine,  prevails  in 
regard  to  a  written  contract  not  under  seal.  In  the  case  of  Higgins  w. 
Senior,  8  Mees.  &  Welsh.  834,  it  is  laid  down  as  a  general  proposition, 
that  it  is  competent  to  show  that  one  or  both  of  the  contracting  parties 
were  agents  for  other  persons,  and  acted  as  such  agents  in  making  the 
contract  of  sale,  so  as  to  give  the  benefit  of  the  contract,  on  the  one 
hand,  to,  and  charge  with  liability  on  the  other,  the  unnamed  princi- 
pals ;  and  this  whether  the  agreement  be  or  be  not  required  to  be  in 
writing,  by  the  Statute  of  Frauds.  But  the  court  mark  the  distinction 
broadly  between  such  a  case  and  a  case  where  an  agent,  who  has  con- 
tracted in  his  own  name,  for  the  benefit,  and  by  the  authoritj'  of  a 
principal,  seeks  to  discharge  himself  from  liability,  on  the  ground' that 
he  contracted  in  the  capacit}'  of  an  agent.  The  doctrine  proceeds  on 
the  ground  that  the  principal  and  agent  may  each  be  bound ;  the 
agent,  because  b}'  his  contract  and  promise  lie  has  expressly  bound 
himself;  and  the  principal,  because  it  was  a  contract  made  by  his 
authority  for  his  account.  Paterson  u.  Gandasequi,  15  East,  62; 
Magee  v.  Atkinson,  2  Mees.  &  Welsh.  440;  Trueman  v.  Loder,  11 
Ad.  «&  El.  589  ;  Taintor  u.  Prendergast,  3  Hill,  72 ;  Edwards  v. 
Golding,  20  Vt.  30.  It  is  analogous  to  the  ordinar}'  case  of  a 
dormant  partner.  He  is  not  named  or  alluded  to  in  the  contract ; 
yet  as  the  contract  is  shown  in  fact  to  be  made  for  his  benefit, 
and   by  his  authorit}',  he   is   liable. 

So,  on  the  other  hand,  where  the  contract  is  made  for  the  benefit  of 
one  not  named,  though  in  writing,  the  latter  ma}'  sue  on  the  contract, 
jointly  with  others,  or  alone,  according  to  the  interest.  Garrett  v. 
Handley,  4  B.  &  C.  664  ;  Sadler  v.  Leigh,  4  Campb.  195  ;  Coppin  v. 
Walker,  7  Taunt.  237  ;  Story  on  Agency,  §  410.  The  rights  and 
liabilities  of  a  principal,  upon  a  written  instrument  executed  by  his 
agent,  do  not  depend  upon  the  fact  of  the  agency  appearing  on  the 
instrument  itself,  but  upon  the  facts;  1,  that  the  act  is  done  in  the 
exercise,  and  2,  within  the  limits,  of  the  powers  delegated ;  and  these 
are  necessarily  inquirable  into  by  evidence.  Mechanics'  Bank  v.  Bank 
of  Columbia,  5  Wheat.  326. 

And  we  think  this  doctrine  is  not  controverted  by  the  authority  of 
any  of  the  cases  cited  in  the  defendant's  argument.  Hastings  v. 
Lovering,  2  Pick.  214,  was  a  case  where  the  suit  was  brought  against 
an  agent,  on  a  contract  of  warranty  upon  a  sale  made  in  his  own  name. 
The  case  of  the  United  States  v.  Parmele,  Paine,  252,  was  decided  on 
the  ground   that,  in  an  action  on  a  written  executory  promise,  none 


636  RAILTON   V.   HODGSON.  [CHAP.  V. 

but  the  promisee  can  sue.     The  court  admit  that,  on  a  sale  of  goods 
made  by  a  factor,  the  principal  may  sue. 

This  action  is  not  brought  on  anj-  written  promise  made  by  the 
defendant ;  the  receipt  is  a  written  acknowledgment,  given  bj'  the 
plaintiff  to  the  defendant,  of  part  pa^-ment  for  the  bark,  and  it  ex- 
presses the  terms  upon  which  the  sale  had  been  made.  The  defendant, 
b}'  accepting  it,  admits  the  sale  and  its  terms  ;  but  the  law  raises  the 
promise  of  payment.  And  this  is  by  implication,  prima  facie^  a 
promise  to  the  agent ;  yet  it  is  only  prima  facie^  and  may  be  con- 
trolled b}'  parol  evidence  that  the  contract  of  sale  was  for  the  sale  of 
property'  belonging  to  the  plaintiff,  and  sold  b}'  her  authority-  to  the 
defendant,  by  the  agenc}'  of  the  person  with  whom  the  defendant 
contracted. 

We  are  all  of  opinion  that  the  provisions  of  Rev.  Sts.  c.  28,  §  201, 
do  not  apply  to  the  sale  of  bark,  as  made  in  this  case. 

Judgment  on  the  award  for  the  plaintiff.^ 


SECTION  II. 

Whether  the   Third  Party  can  hold  the  Principal. 

RAILTON  V.   HODGSON. 
PEELE   V.    HODGSON. 
Nisi  Prius.     1804. 

[4  Taunton,  .576,  n.  (a).] 

The  facts  were,  that  the  defendant,  Hodgson,  had  formerly  been  a 
clerk  with  Smith,  Lindsay,  &  Co.,  which  the  vendors  knew;  that  he 
purchased  goods  himself,  and  directed  the  vendors  to  draw  bills  upon 
Smith,  Lindsay  &  Co.,  and  make  out  invoices  to  that  house,  which  was 
then  a  house  of  good  credit,  and  without  whose  security  Hodgson  could 

1  In  Edwards  v.  Golding,  20  Vt.  30  (1847),  Mills,  agent  of  Edwards,  but  supposed 
to  be  acting  for  himself  alone,  sold  Edwards'  goods  to  Golding  &  Peabody.  After- 
wards, in  Mills'  absence  and  as  his  representative,  Edwards  executed  a  bill  of  sale  in 
this  form  :  "  Golding  &  Peabody  bought  of  J.  W.  Mills,  15  tons  ...  old  iron  .  .  . 
$271.99.  Rec'd  note  at  four  months.  .  .  .  Burlington,  6th  June.  J.  W.  Mills,  per  J. 
H.  towards."  The  note  having  been  paid,  an  action  for  the  remainder  of  the  pur- 
chase price  was  brought  in  the  name  of  Edwards.  It  was  held  that  Edwards  could 
recover.  Bennett,  J.,  delivering  the  opinion  of  the  court,  said  :  "  We  do  not  think 
that  it  impugns  any  rule  of  law  to  allow  it  to  be  shown  by  parol  that  Mills  in  the  sale 
was  but  the  agent  of  the  plaintiff.  It  is  consistent  with  the  bill  of  sale  that  the  de- 
fendants bought  the  iron  of  Mills  either  as  agent  or  principal.  It  does  not  profess 
to  state  in  what  capacity  he  was  acting ;  and,  without  any  violence  to  language,  an 
agent  might  adopt  the  phraseology  in  this  bill  of  sale."  —  Ed. 


SECT.  II.]  THOMSON    V.    DAVENPORT.  637 

not  have  obtained  credit  and  made  tlie  purchases.  Smith,  Lindsay, 
and  Co.  received  from  the  defendant  a  commission  of  from  2  and  half 
to  5  per  cent  upon  the  goods.  The  vendors  entered  the  goods  in  their 
own  books,  in  the  names  of  Smith,  Lindsay,  and  Co.,  made  out  the 
invoices  in  the  names  of,  and  sent  them  to  Smith,  Lindsay',  and  Co., 
and  drew  bills  upon  them  for  the  amount,  which  Smith,  Lindsay,  and 
Co.  accepted.  The  defendant  insisted  that  he  purchased  as  the  agent 
of  Smith,  Lindsay,  and  Co.,  and  in  their  names,  and  on  their  account, 
as  he  used  to  do  when  in  their  employ.  There  was  proof,  however,  of 
his  being  the  principal,  and  having  bought  the  goods  on  his  own  account. 
The  plaintiffs  obtained  a  verdict,  and  Mansfield,  C.  J.,  in  summing 
up  the  evidence,  observed  to  the  jury,  "  that  it  was  admitted  these 
goods  were  never  delivered  to  Smith,  Lindsa}',  &  Co. ;  the  defendant 
had  the  goods,  and  the  profits  and  loss.  Smith,  Lindsa}',  and  Co. 
were  only  to  have  a  commission,  for  which  they  lent  their  credit. 
Suppose  a  principal  authorizes  a  factor  to  sell  goods,  and  he  sells  in  his 
own  name,  the  principal  may  call  upon  the  vendee  for  payment.  It 
appeared  that  Hodgson  had  been  a  trader  from  1798.  Suppose 
Hodgson  had  not  been  known  to  be  the  buyer,  he  would  have  been 
liable  ;  Smith,  Lindsa}',  and  Co.  would  only  have  been  nominal  buyers. 
If  Hodgson  had  really  paid  Smith,  Lindsay,  &  Co.,  it  would  have 
depended  upon  circumstances  whether  he  would  be  liable  to  pay  for  the 
goods  over  again  ;  if  it  would  have  been  unfair  to  have  made  him  liable 
he  would  not  have  been  so.  What  pretence  was  there  that  the  plaintiffs 
should  be  thrown  upon  the  insolvent  estate  of  Smith,  Lindsaj-,  &  Co., 
who  never  had  the  goods?  This  was  a  stronger  case  than  that  of  a 
dormant  partner.  The  buyer  must  be  liable,  though  a  third  person 
may  also,  unless  there  is  an  express  agreement  that  the  buyer  shall  not 
be  liable."  The  jury  found  a  verdict  for  the  plaintiffs.  A  motion  was 
made  in  the  following  term  to  set  aside  the  verdict,  and  have  a  new 
trial ;  but  the  Court  refused  it. 


THOMSON  r.   DAVENPORT  and  others. 

King's  Bench.     1829. 

[9  B.  S^  C.  78.] 

This  was  a  writ  of  error,  brought  upon  a  judgment  obtained  in  the 
borough  court  of  Liverpool  against  the  plaintiff  in  error.  The  plaintiff 
below  declared  for  goods  sold  and  delivered.  Plea,  general  issue. 
Upon  the  trial  before  the  mayor,  and  baililTs,  assisted  by  the  recorder, 
a  bill  of  exceptions  was  tendered  to  the  direction  given  by  the  mayor, 
bailiffs,  etc.,  by  the  said  recorder  to  the  jury.  The  bill  of  exceptions 
stated  that  one  Thomas  M'Kune  was  produced  and  examined  upon  oath 


638  THOMSON   V.   DAVENPORT.  [CHAP.  V. 

as  a  witness  by  the  counsel  for  the  plaintiffs,  to  maintain  the  issue  on 
their  parts.  And  M'Kune  stated  in  evidence  that  he,  M'Kune,  was 
established  in  Liverpool  as  a  general  Scotch  agent,  and  amongst  others, 
acted  as  agent  for  the  defendant,  who  resided  in  Dumfries  ;  that,  in 
March,  1823,  he  received  from  the  defendant  a  letter,  containing  an 
order  to  purchase  various  goods,  and,  amongst  others,  a  quantity  of 
glass  and  earthenware ;  which  letter,  with  the  order,  was  produced 
by  the  plaintitfs'  attorney',  and  was  read  in  evidence  as  follows : 
'•Dumfries,  29th  March,  1823.  Annexed  is  a  list  of  goods  which  you 
will  procure  and  ship  per  Nancij.  Memorandum  of  goods  to  be 
shipped  :  twelve  crates  of  Staffordshire  ware,  crown  window  glass,  ten 
square  boxes,"  &c.,  «&;c.  That  he,  M'Kune,  provided  himself  with  the 
goods  mentioned  in  this  letter,  and  that  he  got  the  glass  and  earthen- 
ware from  the  plaintiffs,  who  were  glass  and  earthenware  dealers  in 
Liverpool :  that  at  the  time  he  ordered  the  glass  and  earthenware  he 
saw  the  plaintiff,  Mouutford  Fynney,  himself,  and,  to  the  best  of  his 
recollection,  told  him,  that  he,  M'Kune,  had  an  order  to  purchase  some 
goods,  and  that  the}'  were  the  same  house  for  whom  he  had  purchased 
goods  from  the  plaintiffs  the  preceding  year ;  and  he  also  stated,  to  the 
best  of  his  recollection,  that  as  he  was  a  stranger  to  the  nature  of  the 
goods,  he  hoped  that  the  plaintiffs  would  let  him  have  the  same  as  be- 
fore, to  save  him  from  blame  by  his  employer;  but  he,  M'Kune,  did  not 
show  the  plaintiffs  the  letter  containing  the  order,  nor  did  he  mention 
the  name  of  any  principal ;  that  he  then  either  gave  the  plaintiff, 
Mountford  Fynney,  a  cop^'  of  the  order,  or  produced  to  him  the 
original  order,  that  Fj'nney  might  himself  take  a  cop}',  but  he  rather 
thought  the  former  was  the  fact,  and  that  the  plaintiff  Fynney  did  not 
see  the  original,  though  he  could  not  say  positively  ;  that  the  plaintiff 
accordingly  furnished  the  glass  and  earthenware,  the  amount  of  which, 
deducting  the  discount,  was  £193  Is.  8d.,  but  adding  the  discount, 
£219  10s.,  and  rendered  invoices  thereof  to  M'Kune,  headed  thus: 
"Mr.  Thomas  M'Kune  bought  of  John  and  James  Davenport"  (which 
was  the  plaintiffs'  firm)  ;  that  M'Kune  entered  the  net  amount  (£193 
7s.  8(1),  to  the  credit  of  the  plaintiffs  in  an  account  with  them  in  his 
books,  and  charged  the  same  sum,  with  the  addition  of  2  per  cent  for 
the  commission,  to  the  debit  of  the  defendant  in  an  account  with  him, 
which  was  according  to  his  invariable  course  of  dealing  ;  and  that  he  sent 
to  the  defendant  a  general  invoice  of  all  the  goods  purchased,  comprising 
the  glass  and  earthenware,  but  not  mentioning  the  plaintiffs'  names  ; 
that  afterwards,  in  April,  1823,  and  before  the  credit  for  the  goods  had 
expired,  M'Kune  became  insolvent,  though  up  to  the  day  of  his  stopping 
payment  he  was  in  good  credit,  and  could  have  bought  goods  on  trust 
to  the  amount  of  £20,000  ;  whereupon  the  said  mayor  and  bailiffs,  by 
the  said  recorder,  after  stating  the  evidence,  told  the  jury  that,  from 
the  distance  of  time  since  the  sale  took  place,  there  was  some  uncer- 
tainty in  the  evidence  of  M'Kune  as  to  the  precise  words  used  by  him 
to  the  plaintiffs  at  the  time  he  gave  them  the  order  for  the  goods  ;  but  it 


SECT.  II.J  THOMSON    V.   DAVENPORT.  639 

appeared  to  them  (the  said  recorder)  upon  the  evidence,  that  the  name 
of  the  defendant  as  principal  was  not  then  communicated  or  known  to 
the  ijlaintiffs  ;  and  directed  the  jury  that  if  they  were  of  opinion  that  the 
defenchmt's  name  as  principal  was  mentioned  by  M'Kune  to  tlie  plain- 
tiffs at  the  time  the  order  was  given,  or  that  the  plaintiffs  then  knew  that 
the  defendant  was  the  principal,  their  verdict  ought  to  be  for  the  defend- 
ant ;  but  if  the}'  were  of  opinion  that  the  defendant's  name  as  the  principal 
was  not  mentioned  by  M'Kune  to  the  plaintiffs  at  the  time  of  the  order 
being  given,  and  that  the  plaintiffs  did  not  then  know  that  the  defendant 
was  the  principal,  and  they  did  not  think,  upon  all  the  said  facts  of  the 
case,  that  the  plaintiffs  at  the  time  of  the  order  being  given  knew  who 
the  principal  was,  so  tiiat  they  then  had  a  power  of  electing  whether 
the}-  would  debit  the  defendant  or  M'Kune,  the}-  ought  to  find  a  verdict 
for  the  plaintiffs  ;  and  tliat,  although  the  plaintiffs  at  the  time  of  the 
sale  might  think  that  M'Kune  was  not  buying  the  goods  upon  his  own 
account,  yet  if  his  principal  was  not  communicated  or  made  known  to 
them,  that  circumstance  ought  to  make  no  difference  in  the  case.  The 
jury,  after  finding  as  a  fact  that  the  letter  containing  the  order  was  not 
sliown  and  made  known  to  the  plaintiffs,  gave  their  verdict  for  the 
plaintiffs  below  for  £219  \0s.  It  was  contended  that  the  mayor  and 
bailiffs,  by  the  recorder,  ought  to  have  directed  the  jury  that  if  the}' 
were  satisfied  that  Davenport,  &c.  at  the  time  of  the  order  being  given 
knew  that  M'Kune  was  buying  the  goods  as  an  agent,  even  though  his 
principal  was  not  communicated  or  made  known  to  them,  they,  by 
afterwards  debiting  M'Kune,  and  so  rendering  the  said  invoices,  had 
elected  to  take  him  for  their  debtor,  and  had  precluded  themselves 
from  calling  on  Tliomson. 

Joi^/  for  the  plaintiff  in  error. 

Patteso?i,  contra. 

Lord  Tenterden,  C.  J.  I  am  of  opinion  that  the  direction  given  by 
the  learned  recorder  in  this  case  was  right,  and  that  the  verdict  was 
also  right.  I  take  it  to  be  a  general  rule,  that  if  a  person  sells  goods 
(supposing  at  the  time  of  the  contract  he  is  dealing  with  a  principal), 
but  afterwards  discovers  that  the  person  with  whom  he  has  been  dealing 
is  not  the  principal  in  the  transaction,  but  agent  for  a  third  person, 
though  he  may  in  the  mean  time  have  debited  the  agent  with  it,  he  may 
afterwards  recover  the  amount  from  the  real  principal ;  subject,  however, 
to  this  qualification,  that  the  state  of  the  account  between  the  principal 
and  the  agent  is  not  altered  to  the  prejudice  of  the  principal.  On  the 
other  hand,  if  at  the  time  of  tlie  sale  the  seller  knows,  not  only  that  the 
person  who  is  nominally  dealing  with  him  is  not  principal  but  agent, 
and  also  knows  who  the  principal  really  is,  and,  notwithstanding  all  that 
knowledge,  chooses  to  make  the  agent  his  debtor,  dealing  with  him  and 
him  alone,  then,  according  to  the  cases  of  Addison  v.  Gandasequi, 
4  Taunt.  574,  and  Paterson  v.  Gandasequi,  15  East,  62,  the  seller  can- 
not afterwards,  on  the  failure  of  the  agent,  turn  round  and  charge  the 
principal,  having  once  made  his  election  at  the  time  when  he  liad  the 


640  THOMSON    V.    DAVENPORT,  [CIIAP.  V. 

power  of  choosing  between  the  one  and  the  other.     The  present  is  a 
middle  case.    At  the  time  of  the  dealing  for  the  goods,  the  plaintiffs  were 
informed  thatM'Kune,  who  came  to  them  to  buy  the  goods,  was  dealing 
for  another,  that  is,  that  he  was  an  agent,  but  the^-  were  not  informed 
who  the  principal  was.    They  had  not,  therefore,  at  that  time  the  means 
of  making  their  election.     It  is  true  that  they  might,  perhaps,  have 
obtained  those  means  if  they  had  made  further  inquiry  ;  but  they  made 
no  further  inquir}'.     Not  knowing  who  the  principal  really  was,  they 
had  not  the  power  at  that   instant  of  making   their   election.     That 
being  so,  it  seems  to  me  that  this  middle  case  falls  in  substance  and 
effect  within  the  first  proposition  which  I  have  mentioned,  the  case  of 
a  person  not  known  to  be  an  agent ;    and  not  within  the  second,  where 
the  bu\er  is  not  merely  known  to  be  agent,  but  the  name  of  his  prin- 
cipal is  also  known.     There  ma}'  be  another  case,   and  that  is  where 
a   British    merchant   is    buying    for  a   foreigner.      According    to   the 
universal   understanding  of  merchants,    and  of  all   persons  in  trade, 
the  credit  is  then  considered  to  be  given  to  the  British  buyer,  and  not 
to  the  foreigner.     In  this  case,  the  buyers  lived  at  Dumfries  ;   and  a 
question  might  have  been  raised   for  the    consideration   of  the  jur}', 
Whether,  in  consequence  of  their  living  at  Dumfries,  it  may  not  have 
been  understood  by  all  persons  at  Liverpool,    where  there  are  great 
dealings  with  Scotch   houses,   that  the  plaintiffs   had  given  credit  to 
M'Kune  only,  and    not  to  a  person   living,   though   not  in  a  foreign 
country,  yet,  in  that  part  of  the  king's  dominions  which  rendered  him 
not  amenable  to  any  process  of  our  courts?     But,  instead  of  directing 
the  attention  of  the  recorder  to  any  matter  of  that  nature,  the  point 
insisted  upon  by  the  learned  counsel  at  the  trial  was,  that  it  ought  to 
have  been  part  of  the  direction  to  the  jury,  that  if  they  were  satisfied 
the  plaintiflls,  at  the  time  of  the  order  being  given,  knew  that  M'Kune 
was  buying  goods  for  another,  even   though   his  principal  might  not 
be   made  known  to  them,   they,  by  afterwards  debiting  M'Kune,  had 
elected   him  for  their   debtor.     The   point    made    by  the  defendant's 
counsel,  therefore,  was,  that  if  the  plaintiffs  knew  that  M'Kune  was 
dealing  with  them  as  agent,  though  they  did  not  know  the  name  of  the 
principal,  they  could  not  turn  round  on   him.     The   recorder  thought 
otherwise  :    he  thought  that  though  they  did  know  that  M'Kune  was 
buying  as  agent,  yet,  if  they  did  not  know  who  his  principal  really  was, 
so  as  to  be  able  to  write  him  down  as  their  debtor,  the  defendant  was 
liable,  and  so  he  left  the  question  to  the  jury,  and  I  think  he  did  riglit  in 
so  doing.     The  judgment  of  the  court  below  must  therefore  be  aflSrmed. 
Baylev,  J.     There   may  be  a  course  of  trade  by  which  the  seller 
will  be  confined  to  the  agent  who  is  buying,  and  not  be  at  liberty  at  all 
to  look  to  the  principal.     Generally  speaking,  that  is  the  case  where 
an  agent  here  buys  for  a  house  abroad.     There  may  also  have  been 
evidence  of  a  course  of  trade,  applicable  to  an  agent  living  here  acting 
for  a  firm  resident  in   Scotland.     But  that  does  not  appear  to  have 
been  made  a  point  in  this  case,  and  it  is  not  included  in  the  objection 


SECT.  II.]  THOMSON  V.    DAVENPORT.  641 

which  is  now  made  to  the  charge  of  the  recorder.  In  my  opinion, 
the  direction  of  the  recorder  was  right ;  and  it  was,  with  the  limits  I 
Lave  mentioned,  perfectly  consistent  with  the  justice  of  tiie  case. 
Where  a  purchase  is  made  by  an  agent,  the  agent  does  not  of  necessity 
so  contract  as  to  make  himself  personally  liable  ;  but  he  may  do  so. 
If  he  does  make  himself  personally  liable,  it  does  not  follow  that  the 
principal  may  not  be  liable  also,  subject  to  this  qualification,  that  the 
principal  shall  not  be  prejudiced  by  being  made  personally  liable,  if 
the  justice  of  the  case  is  that  he  should  not  be  personally  liable.  If  the 
principal  has  paid  the  agent,  or  if  the  state  of  accounts  between  the  agent 
here  and  the  principal  would  make  it  unjust  that  the  seller  should  call  on 
the  principal,  the  fact  of  payment,  or  such  a  state  of  accounts,  would  be 
an  answer  to  the  action  brought  by  the  seller  where  he  had  looked  to 
the  responsibility  of  the  agent.  But  the  seller,  who  knows  who  the 
principal  is,  and  instead  of  debiting  that  principal  debits  the  agent,  is 
considered,  according  to  the  authorities  which  have  been  referred  to, 
as  consenting  to  look  to  the  agent  only,  and  is  thereb}'  precluded  from 
looking  to  the  principal.  But  there  are  cases  which  establish  this 
position,  that  although  he  debits  the  agent  who  has  contracted  in  such 
a  way  as  to  make  himself  personally  liable,  yet,  unless  the  seller  does 
something  to  exonerate  the  principal,  and  to  say  that  he  will  look  to 
the  agent  only,  he  is  at  liberty  to  look  to  the  principal  when  that 
principal  is  discovered.  In  the  present  case  the  seller  knew  that  there 
was  a  principal ;  but  there  is  no  authority  to  show  that  mere  knowledge 
that  there  is  a  principal,  destroys  the  right  of  the  seller  to  look  to  that 
principal  as  soon  as  he  knows  who  that  principal  is,  provided  he  did  not 
know  who  he  was  at  the  time  when  the  purchase  was  originalh"  made. 
It  is  said,  that  the  seller  ought  to  have  asked  the  name  of  the  principal, 
and  charged  him  with  the  price  of  the  goods.  By  omitting  to  do  so, 
he  might  have  lost  his  right  to  claim  payment  from  the  principal,  had 
the  latter  paid  the  agent,  or  had  the  state  of  the  accounts  between  the 
principal  and  the  agent  been  such  as  to  make  it  unjust  that  the  former 
should  be  called  upon  to  make  the  payment.  But  in  a  case  circum- 
stanced as  this  case  is,  where  it  does  not  appear  but  that  the  man  who 
has  had  the  goods  has  not  paid  for  them,  what  is  the  justice  of  the  case? 
That  he  should  paj-  for  them  to  the  seller  or  to  the  solvent  agent,  or  to 
the  estate  of  the  insolvent  agent,  who  has  made  no  payment  in  respect 
of  these  goods.  The  justice  of  the  case  is,  as  it  seems  to  me,  all  on  one 
side,  namely,  that  the  seller  shall  be  paid,  and  that  the  bu3'er  (the 
principal)  shall  be  the  person  to  pay  him,  provided  he  has  not  paid  any 
body  else.  Now,  upon  the  evidence,  it  appears  that  the  defendant 
had  the  goods,  and  has  not  paid  for  them  either  to  M'Kune  or  to  the 
present  plaintiffs,  or  to  an}"  bod}'  else.  He  will  be  liable  to  pay  for 
them  either  to  the  plaintiffs  or  to  M'Kune's  estate.  The  justice  of  the 
case,  as  it  seems  to  me,  is,  that  he  should  pay  the  plaintiffs  who  were 
the  sellers,  and  not  any  other  person.  I  am,  therefore,  of  opinion  that 
the  direction  of  the  recorder  was  right. 

41 


642  THOMSON    V.    DxVVENrORT.  [CHAP.  V. 

LiTTLEDALE,  J.      The  general  principle   of  law  is,   that  the  seller 
shall  have  his  remedy  against  the  principal,  rather  than  against  any 
other  person.     Where  goods  are  bought  b}-  an  agent,  who  does  not  at 
the  time  disclose  that  he  is  acting  as  agent,  the  vendor,  although  he 
has  debited  the  agent,  may  upon  discovering  the   principal,  resort  to 
him  for  payment.     But  if  the  principal  be  known  to  the  seller  at  the 
time  when  he  makes  the  contract,. and  he,  with  a  full  knowledge  of  the 
principal,  chooses  to  debit  the  agent,  he  thereby  makes  his  election, 
and  cannot  afterwards  charge  the  principal.     Or  if  in  such  case  he 
debits  the  principal,  he  cannot  afterwards   charge  the  agent.     There 
is  a  third  case  :    the   seller  may,   in  his  invoice  and  bill  of  parcels, 
mention  both  principal   and  agent ;    he   may  debit  A.  as  a  purchaser 
for  goods   bought  through   B.,  his   agent.      In  that  case,  he  thereby 
makes    his  election  to  charge  the  principal,    and   cannot  afterwards 
resort  to  the    agent.      The  general  principle  is,  that  the  seller  shall 
have  his  remedy  against  the  principal,  although  he  may,  by  electing  to 
take  the  agent  as  his  debtor,  abandon  his  right  against  the  principal. 
The  present  case  diflfers  from  any  of  those  which  I  have  mentioned. 
Here  the  agent   purchased   the  goods  in  his  own  name.     The  name 
of  the  principal  was  not  then  known  to  the  seller,  but  it  afterwards 
came  to  his  knowledge.     It  seems  to  me  to  be  more  consistent  with 
the  general   principle   of  law  that  the  seller   shall   have  his  remedy 
against  the  principal,  rather  than  against  any  other  person,  to  hold 
in  this  case  that  the  seller,  who  knew  that  there  was  a  principal,  but 
did  not  know  who  that  principal  was,  may  resort  to  him  as  soon  as  he  is 
discovered.     Here  the  agent  did  not  communicate  to  the  seller  sufficient 
information  to  enable  him  to  debit  any  other  individual.     The  seller 
was  in  the  same  situation,  as  if  at  the  time  of  the  contract  he  had 
not  known  that  there  was  any  principal  besides  the  person  with  whom 
he  was  dealing,   and  had   afterwards  discovered   that  the  goods  had 
been  purchased  on  account  of  another  ;  and  in  that  case  it  is  clear  that 
he  might  have  charged  the  principal.     It  is  said  that  he  ought  to  have 
ascertained  by  inquiry  of  the  agent  who  the  principal  was,  but  I  think 
that  he  was  not  bound  to  make  such  inquiry,  and  that  by  debiting  the 
agent  with  the  price  of  the  goods,  he  has  not  precluded  himself  from 
resorting  to  the  principal,  whose  name  was  not  disclosed  to  him.     It 
might  have  been  made  a  question,  whether  it  was  not  a  defence  to  this 
action  that  the  principal  resided  in  Scotland.     But  that  was  not  a  point 
made  at  the  trial,  nor  noticed  in  the  bill  of  exceptions  ;   we  cannot, 
therefore,  take  it  into   our  consideration.      For  the  reasons  already 
given,  I  think  the  plaintiff  is  entitled  to  recover. 

Judgmeyit  affirmed} 

Parke,  J.,  having  been  concerned  as  counsel  in  the  cause,  gave  no 
opinion. 

•1  See  Paterson  v.  Gandasequi,  ante,  p.  527 ;  Huttou  v.  Bulloch,  L.  R.  9  Q.  B.  572 
{Ex.  Ch.  1874).  — Ed. 


SECT.  II.]  PENTZ    V.    STANTON.  643 


PENTZ    V.    STANTON. 
Supreme  Coukt  of  New  Yokk.     1833. 

[10  Wend.  271.] 

This  was  an  action  of  assumpsit,  tried  at  the  Madison  Circuit  in 
September,  1830,  before  the  Hon.  Nathan  Williams,  one  of  the  circuit 
judges. 

Tlie  first  count  in  the  declaration  was  on  a  bill  of  exchange  for 
$li38.36,  bearing  date  2oth  Ma}-,  1826,  charged  to  have  been  drawn 
by  one  Henry  F.  West,  by  the  name  and  description  of  H.  F.  West, 
agent,  he,  the  said  West,  then  and  there  being  the  agent  and  servant 
of  the  defendant  in  that  behalf,  according  to  the  custom  of  merchants. 
The  bill  was  drawn  on  one  James  Carey,  payable  four  months  after 
date,  was  accepted  by  Carey,  and  when  due  was  protested  for  non- 
payment, and  notice  of  non-payment  was  alleged  to  have  been  given  to 
the  defendant.  There  was  also  the  common  counts  for  goods  sold  and 
delivered  to  the  defendant,  and  for  money  lent,  &c.  The  defendant 
pleaded  the  general  issue,  and  specially  that  the  bill  of  exchange 
counted  upon  was  received  and  accepted  b}'  the  plaintiff  in  satisfaction 
of  the  goods  sold  ;  as  to  which  the  plaintiff  took  issue.  On  the  trial 
the  bill  was  produced,  and  purported  to  be  signed  H.  F.  West,  agent. 
A  regular  protest  was  shown,  and  notice  of  the  same  addressed  to  and 
received  by  West  at  Manchester,  in  Oneida  County,  where  West  at  the 
date  of  the  bill,  and  before  and  since  as  the  agent  of  the  defendant, 
superintended  a  woollen  manufactory  belonging  to  the  defendant,  who 
resided  at  Pompe}-  in  Onondaga  Count}-,  and  spent  onl}-  a  portion  of 
his  time  at  the  factory.  West  testified  that  he  was  authorized  by  the 
defendant  to  make  notes  and  draw  bills  of  exchange  in  the  name  of  the 
defendant  and  as  agent  in  his  behalf;  that  the  bill  in  question  was 
given  on  the  purchase  by  him  of  a  quantity  of  d^-e-stuffs  of  the  plaintiff 
for  the  defendant,  taken  to  and  used  in  the  factor}-  and  in  the  business 
of  the  defendant ;  that  when  he  called  for  the  goods,  he  proposed  to 
the  plaintiff  to  give  him  the  bill  in  question,  who  agreed  to  accept  and 
did  accept  the  same,  giving  him,  the  witness,  a  bill  of  the  goods, 
headed,  "  Mr.  H.  F.  West,  Agent,  bought  of  W.  A.  F.  Pentz,"  and  re- 
ceipting the  draft  at  the  bottom.  He  further  testified,  that  he  informed 
the  defendant  of  the  drawing  of  the  bill  of  exchange,  and  delivered  the 
notice  of  protest  to  him,  but  did  not  do  so  until  several  weeks  after  he 
had  received  it ;  that  the  letters  relating  to  the  factory  business  were 
generally  sent  to  Manchester,  sometimes  addressed  to  the  defendant 
and  sometimes  to  the  witness  as  agent ;  and  that  he  always  opened 
them,  whether  addressed  to  his  principal  or  himself.  It  further  ap- 
peared that  the  acceptor  failed  before  the  bill  fell  due,  and  that  on  the 
day  after  the  bill  was  protested,  the  plaintiff  addressed  a  letter  to  West, 
complaining  that  he  had  suffered  the  protest,  as  he  had  been  apprised 


644  PENTZ  V.    STANTON.  [CHAP.  V. 

by  the  acceptor  of  his  inability  to  meet  it.  On  this  evidence,  the 
defendant's  counsel  insisted  that  the  plaintiff  was  not  entitled  to  re- 
cover ;  but  the  judge  ruled  that  he  was  entitled  to  recover,  and  so 
instructed  the  jury,  who  accordingly  found  the  amount  of  the  bill, 
with  interest.     The  defendant  moves  for  a  new  trial. 

J*.  Gridlei/y  for  the  defendant. 

tT.  A.  Spencer,  for  the  plaintiff. 

£1/  the  Court,  Sutherland,  J.  The  plaintiff  cannot  recover  upon 
the  bill  of  exchange  against  the  present  defendant.  His  name  no- 
where appears  upon  it.  It  was  drawn  and  subscribed  by  West  in  his 
own  name,  with  the  simple  addition  of  "  agent,"  but  without  any 
specification  whatever  of  the  name  of  the  principal.  Mr.  Chitty,  in  his 
valuable  Treatise  on  Bills,  says,  page  22,  "  It  is  a  general  rule  that  no 
person  can  be  considered  a  part}'  to  a  bill,  unless  his  name  or  the  name 
of  the  firm  of  which  he  is  a  partner,  appear  on  some  part  of  it ;  "  and 
Mr.  Justice  Buller,  in  Fenn  v.  Harrison,  3  T.  R.  761,  observes,  that  in 
the  case  of  bills  of  exchange,  we  know  precisel}'  what  remedy  the  holder 
has,  if  the  bill  be  not  paid  ;  his  security-  appears  wholl}^  on  the  face  of 
the  bill  itself;  the  acceptor,  the  drawers,  and  the  indorsers  are  all 
liable  in  their  turns,  but  they  are  only  liable  because  they  have  written 
their  names  on  the  bill ;  but  this  is  an  attempt  to  make  some  other  per- 
sons liable,  whose  names  do  not  appear  on  the  bill.^  .  .  . 

The  next  inquiry  is  whether  the  defendant  is  liable  upon  the  counts 
for  goods  sold  and  delivered.  West  was  examined  as  a  witness,  and 
testified  that  he  was  the  agent  of  the  defendant  in  carrying  on  a  woollen 
manufactor}'  in  Oneida  Count}^ ;  that  the  goods  for  which  he  gave  the  bill 
were  purchased  for  the  defendant,  and  were  used  in  his  business  of  manu- 
facturing ;  that  he  had  authorit}-  to  draw  bills  of  exchange  and  notes  in 
the  name  of  the  defendant ;  that  when  he  called  for  the  goods  in  this 
case,  he  proposed  to  let  the  plaintiff  have  the  draft  in  question  ;  that  the 
plaintiff  said  he  would  inquire  about  the  drawee,  and  did  so,  and  after- 
wards received  the  draft  from  the  witness,  and  gave  the  receipt  at  the 
bottom  of  the  bill.  It  does  not  appear  that  West  disclosed  to  the  plain- 
tiff the  fact  that  the  goods  were  purchased  for  the  defendant.  The  bill 
of  goods  delivered  to  him  was  headed  Mr.  H.  F.  West,  agent,  and  the 
draft  which  he  gave  was  also  signed  by  him  as  agent.  These  are  the 
only  circumstances  showing  the  mutual  understanding  of  the  parties 
that  West  was  acting  as  agent  and  not  as  principal  in  the  transaction. 
It  was  shown  that  payment  of  the  bill  had  been  regularly  demanded  of 
the  drawee,  and  notice  of  its  dishonor  regularly  given  to  West,  the 
drawer.  This  would  entitle  the  plaintiff  to  resort  to  the  common  count 
as  against  West,  if  he  were  the  defendant,  and  it  had  been  a  transac- 
tion unquestionabh'  on  his  own  account.  Jones  &  Mann  v.  Savage, 
6  Wend.  659,  662.  The  question  then  upon  this  branch  of  the  case  is, 
whether  the  goods  were  sold  to  West  exclusively  upon  his  own  individ- 

^  The  omitted  passages  deal  with  the  topics  treated   in  Chapter  IV.  sec.  IIL 


SECT.  II.]  LERNED   V.    JOHNS.  645 

ual  credit,  and  the  credit  of  the  bill  which  he  drew,  so  as  to  prevent 
the  plainlitf"  from  all  remedy  against  the  defendant,  for  whom  they  were 
in  fact  purchased,  and  who  has  had  the  exclusive  benefit  of  thein.  The 
only  additional  evidence  upon  this  point,  not  already  adverted  to,  is  the 
letter  written  by  the  plaintiff  to  West  on  the  29  th  September,  1826,  ad- 
vising him  of  the  dishonor  of  the  bill  by  the  drawee,  and  requesting 
him  to  make  provision  for  its  payment.  I  do  not  think  that  this  is  a 
circumstance  of  much  importance  in  the  case.  The  communication 
would  of  course  be  made  to  West,  and  he  would  be  called  on  for  pay- 
ment, admitting  that  he  was  known  and  considered  by  the  plaintiff  as  a 
mere  agent,  as  a  matter  of  necessity  ;  and  it  does  not  appear  that  the 
plaintiff  knew  who  the  principal  was.  It  was  a  question  for  the  jury 
to  decide  whether  the  goods  were  sold  exclusively  upon  the  credit  of 
West  and  of  the  bill,  or  not,  Bentle}'  v.  Grifiin,  5  Taunt.  356  ;  1  Com. 
L.  R.  131  ;  Legget  v.  Reed,  1  Car.  &  Payne,  16  ;  11  Com.  L.  R.  301, 
and  cases  stated  in  note  ;  and  it  is  to  be  regretted  that  it  was  not  dis- 
tinctly left  to  them  b}-  the  judge.  Upon  the  evidence,  I  think  the  jury 
would  have  been  justified  in  finding  for  the  plaintiff  on  this  point.  The 
plaintiff  certainly  knew  that  West  was  acting  as  agent  for  some  third 
person.  The  bill  of  goods  was  made  out  to  him  as  agent,  and  the  draft 
which  he  received  was  signed  by  West  as  agent.  It  would  not  be  an 
unreasonable  conclusion  from  these  facts,  that  the  [jlaintiff  did  not 
repose  entireh'  upon  the  security  and  responsibility  of  West,  but  had 
regard  to  the  eventual  liability  of  the  principal,  whoever  he  might  be, 
if  it  should  become  uecessarj-  to  resort  to  him.  If  the  plaintiff  should 
fail  in  this  action  on  the  ground  that  the  credit  was  given  exclusivel}' 
to  West,  then  no  doubt  he  could  recover  in  an  action  against  West ; 
and  it  is  equally  clear  that  whatever  moncN'  West  may  be  compelled  to 
pay  on  this  account,  would  be  money  paid  to  the  use  of  the  defendant, 
and  which  he  might  recover  from  him.  The  defendant  must  eventually 
pay  for  these  goods,  and  I  see  no  legal  objection  to  a  recoverj-  against 
him  in  this  action  upon  the  common  counts. 

Motion  for  new  trial  denied. 


LERNED    AXD    ANOTHER    V.     JOHNS. 

Supreme  Judicial  Court  of  Massachusetts.     1864. 
[9  Allen,  419.] 

Contract  brought  to  recover  damages  for  the  failure  to  deliver  a 
quantity  of  coal,  sold  by  the  defendant  to  the  plaintiffs.  One  ground 
of  defence  was,  that  the  contract  was  not  binding  because  not  executed 
in  conformity  to  the  Statute  of  Frauds. 

At  the  trial  in  the  superior  court,  before  Morton,  J.,  the  plaintiffs 
introduced  evidence  tending  to  show  that  on  the  4th  of  April,  1863,  J. 


646  LEKNED  V.   JOHNS.  [CHAP.  V. 

W.  Gregg,  as  agent  of  Wannemacher  &  Maxfield,  and  for  and  in  behalf 
of  the  defendant,  made  a  parol  contract  to  sell  to  the  plaintift's  from 
two  hundred  and  fift}'  to  three  hundred  tons  of  lump  "  Johns  coal  "  at 
five  dollars  per  ton,  according  to  the  terms  of  the  written  memorandum 
hereinafter  referred  to;  and  also  the  same  quantity  of  broken  "  Johns 
coal,"  on  the  same  terms  ;  and  that  papers  were  accordingl}-  executed 
for  the  sale  .  .  .  signed,  on  the  one  part,  by  the  plaintiffs,  and,  on  the 
other,  by  "  Wannemacher  &  Maxfield,  by  J.  W.  Gregg."  All  of  the 
above  papers  were  put  in  evidence  by  the  plaintiffs,  those  signed  by 
them  being  produced  by  the  defendant  on  notice.  Wannemacher  & 
Maxfield  and  the  defendant  subsequently  refused  to  deliver  the  coal  to 
the  plaintiffs. 

Upon  the  introduction  of  this  evidence,  the  judge  ruled  that  the 
action  could  not  be  maintained  ;  and  a  verdict  was  accordingly  taken 
for  the  defendant.     Tiie  plaintiffs  alleged  exceptions. 

G.  A.  Somerbi/,  for  the  plaintiffs. 

C.  A.  Welch,  for  the  defendant. 

Hoar,  J.-^  Another  point  is  taken  by  the  defendant :  that  the  signa- 
ture "  Wannemacher  &  Maxfield,  per  J.  W.  Gregg,"  is  not  a  sufficient 
signature  to  the  memorandum  to  bind  him,  although  it  were  proved  b}- 
parol  that  Wannemacher  and  Maxfield  were  his  agents,  duly  authorized 
to  make  the  contract  on  his  behalf,  and  that  they  actually'  made  it  for 
him  through  Gregg.  There  can  of  course  be  no  controvers}'  that  the 
name  of  Wannemacher  &  Maxfield  is  suflflcientl^'  signed ;  but  it  is 
contended  that  it  is  not  competent  to  show  by  parol  that  a  party 
whose  name  is  signed  as  a  principal  is  only  the  agent  of  a  third 
person,  when  there  is  no  intimation  in  the  memorandum  that  he  acted 
as  agent.  The  doctrine  is  well  settled  in  England  that,  when  a  written 
contract  not  under  seal  is  made  bj-  or  with  an  agent,  the  principal, 
although  undisclosed,  may  sue  or  be  sued  upon  it,  except  in  the  case 
of  commercial  paper.  Kenworthy  v.  Schofield,  2  B.  &  C.  945.  It  is 
full}'  and  strongl}'  stated  in  Higgius  v.  Senior,  8  M.  &  W.  834,  and  is 
affirmed  in  many  other  cases  cited  by  Mr.  Justice  Dewe}'  in  Eastern 
Railroad  v.  Benedict,  5  Gra}',  561  ;  and  it  is  adopted  b}-  the  most 
approved  writers  on  the  law  of  agency.  To  what  extent  it  is  the  law 
of  this  Commonwealth  it  was  not  necessary  fully  to  determine  in  the  case 
last  cited  ;  though  it  is  there  said  to  be  well  settled  that  the  rule  applies 
to  cases  of  sales  by  written  bills,  or  other  memoranda  made  b}'  the 
agent,  using  his  own  name,  and  disclosing  no  principal. 

There  are  certainly  dicta  to  the  contrary  in  Stackpole  v.  Arnold,  11 
Mass.  27.  And  in  Shaw  v.  Finney,  13  Met.  453,  where  the  question 
was  on  the  suflficiency  of  the  signature  to  a  memorandum  to  bind  the 
defendant  under  the  Statute  of  Frauds,  and  the  sale  was  stated  in  the 
memorandum  as  made  by  one  Plathavva}',  who  was  proved  to  have  been 
the  plaintiffs  agent,  Mr.  Justice  Wilde  observed  that  "  if  the  defendant 

1  From  the  statement  and  the  opinion  are  omitted  passages  not  pertaining  to 
Agency.  — Ed. 


SECT.  II.]  UOKCIIEKLING    V.    KATZ.  647 

bad  hiiuself  signed  the  first  memorandum,  be  would  not  have  been  liable 
in  this  action  by  the  plaintitl's  ;  lor  the  contract  was  in  terms  a  contract 
with  Hathaway." 

But  in  most  of  our  own  recent  cases  the  English  rule  has  been  fully 
sustained;  and  we  find  no  adjudged  case  to  tlie  contrary.  In  Hunt- 
ington V.  Knox,  7  Cush.  371,  the  case  of  Higgins  /'.  Senior  is  cited 
with  entire  approbation  b}-  Chief  Justice  Shaw  ;  and  the  doctrine  held 
to  be  equall}'  applicable  to  agreements  which  are,  or  are  not,  required 
to  be  in  writing  by  the  Statute  of  Frauds.  And  in  Williams  v.  Bacon, 
2  Gray,  387,  the  precise  question  now  under  consideration  seems  to 
have  been  decided,  and  the  case  is  a  direct  authority  in  point.  See 
also  the  statement  of  Mr.  Justice  Metcalf,  in  Fuller  /•.  Hooper,  3  Gray, 
341  ;  and  Dykers  v.  Townsend,  24  N.  Y.  57. 

Excejotions  sustained.^ 


BORCHERLING   v.    BERNARD   KATZ   and   PHILIP   KATZ. 
CouKT  OF  Chancery  of  New  Jersey.     1883. 

[37  N.J.  Eq.  150.] 

On  final  hearing  on  bill  and  answer  and  proofs  taken  in  open  court. 

Mr.  Thomas  JV.  3fcCartei\  for  complainant. 

Mr.  Charles  F.  Hill  and  Mr.  Socrates  Tuttle,  for  defendants. 

Van  Fleet,  V.  C.  This  is  a  novel  case.  The  complainant  seeks  to 
hold  the  defendants  for  the  rent  reserved  by  a  lease  made  bv  him  to 
other  persons  than  the  defendants.     The  special  ground  on  which  he 

1  In  Beckham  v.  Drake,  9  M.  &  W.  79,  95-96  (1841),  where  it  was  held  that  an 
action  was  maintainable  against  three  partners,  one  of  them  dormant,  upon  a  written 
contract  executed  in  the  names  of  two,  in  the  course  of  the  partnership  business, 
Parke,  B.,  commenting  on  Beckham  v.  Knight,  5  Scott,  619  (1838),  s.  c.  4  Bing.  N.  C. 
243,  said  :  "  There  has  been  a  mistake  in  applying  to  contracts  which  are,  in  point  of 
law,  parol,  although  reduced  to  writing,  the  doctrine  which  is  applicable  exclusively  to 
deeds, — regularly  framed  instruments  between  certain  parties.  Those  parties  only 
can  sue  or  be  sued  upon  an  indenture,  who  are  named  or  described  in  it  as  parties ; 
but  this  doctrine  is  applicable  to  deeds  only,  and  I  was  not  aware  of  any  opinion  being 
entertained,  before  this  case  occurred,  that  the  same  rule  extended  to  all  written  con- 
tracts. With  regard  to  the  practice  on  this  subject,  it  must  be  familiar  to  every  one 
that  there  are  innumeralde  mercantile  contracts  in  Avriting,  where  the  real  principal, 
when  disclosed,  is  made  liable,  though  the  contract  is  entered  into  by  another.  .  .  . 
The  doctrine  rests  upon  this  princij)le,  that  the  act  of  the  agent  was  the  act  of  the 
princii)al,  and  the  subscription  of  the  agent  was  the  subscription  of  the  principal ;  and 
1  am  not  aware  of  the  existence  of  any  cases  in  which  a  distinction  has  been  suggested 
between  a  contract  which  has  l)een  entered  into  hy  one  individual  for  another,  or  by 
two  individuals  for  themselves  and  another,  as  to  the  liability  of  the  principal  to  be 
sued.  The  case  of  bills  of  exchange  is  an  exception,  which  stands  upon  the  law 
merchant ;  and  promissory  notes  anotlier,  for  they  are  placed  on  the  same  footing 
by  the  statute  of  Anne.  In  neither  of  these  can  any  but  the  parties  named  in  the 
instrument,  by  their  name  or  firm,  be  made  liable  to  an  action  upon  it."  —  Ed. 


648  BORCIIERLING   V.    KATZ.  [cilAi'.  V. 

seeks  to  do  this  is,  that  the  defendants  were  the  real  lessees,  that, 
though  the  demise  was  made  to  other  persons,  they  acted  simply  as 
the  agents  of  the  defendants,  who  were  the  principals  in  the  affair  and 
entitled  to  the  benefit  of  the  demise.  The  legal  principle  on  which  he 
rests  his  right  to  relief,  is  that  which  entitles  a  vendor  who,  having 
made  a  sale  to  a  person  whom  he  believed  at  the  time  to  be  the  princi- 
pal in  the  transaction,  is  afterwards  discovered  to  have  been  the  agent 
of  a  third  person,  to  recover  the  price  of  the  goods  of  the  principal, 
though  he  has  in  the  mean  time  debited  the  agent. 

The  following  summary  presents  all  the  important  facts :  On  the  22d 
of  October,  1877,  the  complainant  made  a  lease,  under  seal,  to  Rudolph 
Heller  and  William  Katz,  partners,  doing  business  under  the  name  of 
Heller  &  Katz,  demising  certain  premises,  situate  on  Mulberry  Street, 
in  the  city  of  Newark,  for  a  term  of  two  3-ears  and  five  months  from 
the  1st  da}'  of  November,  1877,  at  an  annual  rent  of  $840,  payable 
monthl}-  in  advance.  The  lease  was  executed  by  both  parties.  It 
gave  the  lessor  the  right  to  re-enter  for  the  breach  of  any  covenant  on 
the  part  of  the  lessees.  The  lessees  covenanted  not  to  underlet,  nor  to 
assign  the  lease,  or  any  part  of  their  term,  without  the  written  consent 
of  the  lessor.  On  the  31st  daj-  of  October,  1877,  the  defendants, 
Bernard  Katz  and  Philip  Katz,  constituted  and  appointed  Heller  & 
Katz  their  attorneys,  empowering  them  to  carrj"  on  and  conduct  the 
business  then  owned  b}-  the  defendants  in  the  city  of  Newark,  and  to 
do  and  perform  all  and  ever}'  act  and  thing  whatsoever  requisite  and 
necessar}'  to  be  done  in  carrjing  on  the  business.  Heller  &  Katz  took 
possession  of  the  demised  premises  soon  after  the  commencement  of 
the  term,  and  continued  to  occupj'  them,  jointly,  until  December,  1878, 
when  Heller  left.  Afterwards  Katz  continued  to  occupy  them  alone 
until  April  1st,  1879,  when  he  left.  At  the  time  the  premises  were 
abandoned  there  was  $220  rent  in  arrear,  which  the  complainant 
attempted  to  collect  by  distress,  but  the  defendants  claimed  the 
property  seized,  and  the  complainant  surrendered  it.  This  claim  by 
the  defendants  was,  in  part  at  least,  false.  They  now  admit  that  most 
of  the  chattels  seized  belonged  to  Heller  &  Katz.  The  complainant 
subsequentl}'  brought  an  action  at  law  against  the  lessees  for  the  rent 
in  arrear,  but,  on  discovering  the  power  of  attorne}',  proceeded  no 
further.  He  did  not  know  of  the  existence  of  the  power  of  attorney 
until  Ma}',  1879,  some  time  after  he  had  commenced  his  action  at  law. 
For  the  purpose  of  putting  the  case  in  the  most  favorable  form  for  the 
complainant,  I  shall  assume  that  the  business  carried  on  on  the  demised 
premises  was  the  business  of  the  defendants,  and  that  Heller  &  Katz 
were  the  agents  of  the  defendants  when  the  lease  was  executed, 
although  the  weight  of  the  evidence  shows  both  facts  to  have  been 
otherwise. 

Some  of  the  complainant's  legal  propositions  are  so  firmly  established 
as  to  be  beyond  dispute.  There  can  be  no  doubt  that  a  principal  is 
bound  by  the  acts  of  his  agent  within  the  authority  expressly  given  to 


SECT.  II.]  BOliCHEKLING   V.    KATZ.  649 

the  agent,  and  also  for  such  acts  as  are  necessary  and  requisite  to  be 
done  in  order  that  tlie  agent  nia^'  accomplish  the  object  of  his  appoint- 
ment. It  is  also  true,  as  a  general  rule,  that  where  a  contract  is  made 
by  an  agent,  without  disclosing  his  principal,  and  the  other  contracting 
party  afterwards  discovers  that  the  person  with  whom  lie  dealt  was  not 
tlie  principal,  but  that  a  third  person  stood  beliind  liim  as  the  real  party 
in  interest,  he  may  abandon  his  right  to  loolv  to  the  agent  personally, 
and  resort  to  the  principal.  And  this  he  may  do  even  when  the  con- 
tract is  in  writing,  and  is  sucli  as  is  required  b}-  the  Statute  of  Frauds  to 
be  in  writing,  for,  in  such  case,  parol  evidence,  showing  that  an  addi- 
tional part}'  is  liable,  in  no  way  contradicts  the  written  instrument. 
"It  does  not  den^'  that  it  is  binding  on  those  whom,  on  its  face,  it 
purports  to  bind,  but  shows  that  it  also  binds  another,  by  reason  that 
the  act  of  the  agent,  in  signing  the  agreement,  in  pursuance  of  his 
autlioiity,  is,  in  law,  the  act  of  liis  principal."  Iliggius  c.  Senior,  8 
M.  &  W.  834,  844.  Parol  evidence  is  admissible  in  such  cases  to 
charge  the  principal,  but  not  to  discharge  the  agent.  2  Smith's  Lead. 
Cas.  226.  But  where  an  agent  makes  a  lease  in  his  own  name,  and 
executes  it  in  his  own  name,  though  the  rent  is  reserved  to  his  princi- 
pal, and  all  the  covenants  purport  to  be  made  with  his  principal,  the 
principal  cannot  maintain  an  action  oa^it,  for  the  reason  that  on  a  deed 
i)iter  partes  no  person  can  maintain  an  action  except  a  party  to  it. 
Berkeley  v.  Hardy,  5  B.  &  C.  355  ;  Sheldon  v.  Dunlap,  1  Harr.  245. 

The  complainant  puts  his  right  to  relief  against  the  defendants,  on 
these  legal  rules.  He  justifies  his  resort  to  this  court  in  this  wise  :  He 
insists  that  b}'  force  of  tlie  legal  rules  just  stated,  his  right  to  hold  the 
defendants  for  the  rent  is  clear,  but  that  he  cannot  maintain  an  action 
at  law  against  them  because  they  are  not  parties  to  the  lease.  He  says 
he  cannot  maintain  an  action  for  use  and  occupation,  for  the  statute 
declares  that  such  action  can  only  be  maintained  where  the  agreement 
for  the  occupation  of  the  land  is  not  b}'  deed  (Rev.  p.  570,  §  3)  ;  he 
claims,  therefore,  that  his  case  falls  within  the  principle  of  equity 
jurisprudence  which  declares  that  where  there  is  a  right  there  ought  to 
be  a  remedy,  and,  if  the  law  gives  none,  it  ought  to  be  administered  in 
equity.  This  conclusion,  I  think,  may  be  admitted  to  be  sound,  pro- 
vided it  is  found  that  the  defendants  are  subject  to  the  legal  principle 
on  which  the  complainant  mainly  rests  his  right  to  relief.  This,  in  my 
judgment,  is  the  test  question  of  the  case. 

Neither  the  researches  of  counsel,  nor  my  own,  have  resulted  in  the 
discovery  of  a  precedent  for  tins  action.  I  think  it  ma\'  safely  be  said 
that  no  instance  exists  in  which  some  other  person  than  the  lessee 
named  in  a  lease,  under  seal,  has  been  held  liable  in  equity  for  the  rent 
reserved  by  the  lease,  on  the  ground  that  he  was  the  undisclosed  prin- 
cipal in  the  transaction,  and  liable,  as  such,  by  force  of  the  rule  which 
renders  an  unnamed  and  unknown  vendee  liable  for  the  price  of  goods 
purchased  b}'  him  through  his  agent.  The  onh-  case  to  which  mj' 
attention   has  been  directed,  wliich   can   be  regarded  as  authority  for 


650  BORCHERLING   V.    KATZ.  [CHAP.  V. 

the  complainant's  position,  is  Clavering  v.  Westle}',  3  P.  Wms.  402. 
There  tlie  plaintiff  made  a  lease  of  a  coal  mine  to  A.  for  twenty-one 
years.  A.  tiien  declared  a  trust  of  the  lease  for  five  persons.  These 
five  persons  entered  into  possession,  worked  the  mine,  and  took  its 
products,  but  some  time  after,  the  lessee  becoming  insolvent,  and  the 
mine  unprofitable,  the}'  abandoned  it.  The  lessor  then  brought  his  bill 
against  the  lessee  and  cestuis  que  trust  to  compel  them  to  pay  the  rent 
in  arrear,  and  also  the  accruing  rent,  insisting  that  though  the  lease 
was  made  to  A.,  yet  it  being  declared  b}'  him  to  be  in  trust  for  the  five 
persons,  as  tenants  in  common,  it  was  the  same  thing  as  if  it  had  been 
made  to  them  originallj*.  The  Master  of  the  Rolls  (Sir  Joseph  Jekyll) 
held  that  the  cestuis  que  trust  were  not  liable,  and  dismissed  the  bill. 
His  reason  was  this  :  That  inasmuch  as  the  plaintiff  had  chosen  to  let 
the  mine  to  A.  alone,  and  to  accept  his  covenant  for  the  rent,  he  should 
be  restricted  to  the  securit}-  he  had  voluntarily'  accepted.  Having 
accepted  the  covenant  of  the  lessee,  his  remedies  were  limited  to  that. 
Lord  Talbot,  on  appeal,  reversed  this  decree,  and  decreed  that  the 
lessee  was  priraaril}'  liable,  but  in  case  the  rent  could  not  be  collected 
of  him,  then  that  each  of  the  five  cestuis  que  trust  should  pay  one-fifth 
of  the  rent  in  arrear,  and  also  that  which  should  afterwards  accrue. 
The  report  of  this  case,  on  appeal,  is  extremel}^  meagre  and  unsatisfac- 
tor}'.  The  conclusion  of  the  Lord  Chancellor  is  simply  given,  without 
more.  No  reasons  are  given,  and  we  have  not  even  a  hint  of  the  legal 
rule  which  it  was  supposed  the  judgment  of  the  Master  of  the  Rolls  had 
overlooked  or  disregarded. 

But  this  case  has  since  been  overruled.  It  is  no  longer  an  authorit}' 
in  the  court  which  decided  it ;  on  the  contrary',  its  doctrine  has  been 
repudiated.  Lord  Cranworth,  in  Walters  v.  Northern  Coal  Mining 
Co.,  5  De  G.  M.  &  G.  629,  after  expressing  regret  that  the  grounds  of 
Lord  Talbot's  decision  are  not  given,  says  :  "  If  he  is  to  be  taken  as 
laying  down  a  general  proposition  that  whenever  a  legal  lessee  is 
trustee  for  another,  the  rent  becomes  an  equitable  debt  from  the  cestui 
que  trust,  to  be  recovered  by  bill  in  this  court,  I  must,  with  all  respect, 
say  that  is  a  proposition  to  which  I  cannot  assent.  I  rest  mj-  judg- 
ment on  the  ground  that  no  such  general  principle  exists."  Lord 
Cranworth's  discussion  of  the  question  on  which  the  decision  here 
must  turn,  is  so  exhaustive  and  unanswerable  that  this  case  may  be 
decided  b^-  a  single  quotation  from  his  opinion.  He  says:  "The 
riglits  of  a  landlord  against  those  who  occupy  his  land  are  legal  rights, 
well  defined  and  understood.  Where  a  tenant  is  holding  under  a 
demise  at  a  stipulated  rent,  the  landlord  has  his  remedy  by  distress  or 
action  of  debt.  If  the  lessee  assigns  to  another,  the  landlord  has 
against  the  assignee,  so  long  as  he  remains  in  possession,  the  same 
rights  which  he  had  against  the  original  tenant.  If  instead  of  assign- 
ing his  interest,  the  lessee  creates  a  tenanc}'  under  himself,  then  the 
original  landlord  may  either  distrain  on  the  under-tenant,  or  may  bring 
his  action  of  debt  or  covenant,  as  the  case  may  be,  against  the  original 


aLCT.  11. J  BOKCllEKLING    V.    KATZ,  651 

lessees.  .  .  .  The  object  of  the  present  bill  is  to  give  to  the  landlord 
an  additional  remedy  in  case  the  legal  lessee  is  a  mere  trustee  for 
others,  who  have  in  fact  occupied  the  lands,  to  enable  the  landlord,  in 
such  a  case,  to  treat  the  cestui^  que  trust  as  equitable  debtors  for  the 
amount  of  the  rent.  But  I  can  discover  no  principle  to  warrant  such  a 
proposition.  The  relation  between  the  owner  of  the  land  and  those 
who  occup}-  it  is  of  a  purely  legal  character.  The  circumstance  that 
there  is  a  relation  of  an  equitable  character  subsisting  between  the 
lessee  and  the  actual  occupier  cannot  give  any  equitable  rights  to  one 
who  claims  b}'  a  title  paramount  both  to  the  trustee  and  the  cestui  que 
trust.  Whatever  be  the  relation  between  the  lessee  and  the  occupier, 
the  landlord's  rights  are  unatTected.  lie  has  his  legal  remedy  by  dis- 
tress, or  he  may  bring  his  action  against  the  lessee."  The  same  doc- 
trine, substantially,  was  enforced  by  Lord  Justices  Knight  Bruce  and 
Turner  in  Cox  v.  Bishop,  8  De  G.  M.  &  G.  815.  An  attempt  was 
made  there  to  hold  the  equitable  assignee  of  a  lease  for  the  rent  which 
accrued  during  the  time  he  was  in  the  actual  possession  and  enjoyment 
of  the  demised  premises.  Lord  Justice  Knight  Bruce  said:  "They 
[possession  and  enjoyment]  do  not,  in  my  judgment,  create  a  contract 
between  the  lessor  and  the  equitable  assignee  which  can  give  the 
former  a  title  to  the  relief  prayed  against  the  latter.  The  possession 
by  itself  would  not,  nor  would  the  equitable  assignment  by  itself,  have 
given  the  lessor  the  equitable  right  which  he  is  here  asserting  against 
the  assignee  ;  neither,  I  think,  can  the  union  of  the  two." 

It  is  quite  impossible  to  distinguish  these  cases  from  the  one  under 
consideration.  The}'  are,  in  all  material  and  essential  points,  identical, 
and  must  all  be  governed  by  the  same  general  rules  of  justice.  The 
fact  that  the  complainant  has  chosen  to  describe  the  relation  existing 
between  the  defendants  and  the  lessees  in  this  case,  as  principal  and 
agent,  and  that  in  the  cases  just  referred  to  the  relation  which  existed 
between  the  lessees  and  the  persons  sought  to  be  charged  with  the  rent 
was  spoken  of  as  trustee  and  cestuis  que  trust,  is  without  the  least 
significance  in  legal  estimation.  The  difference  is  in  terms  or  names, 
and  not  in  the  legal  character  of  the  relation.  The  relation,  in  prin- 
ciple and  substance,  is  the  same,  whether  it  is  described  bj-  one  set  of 
terms  or  the  other,  and  its  rights  and  obligations  are  the  same,  whether 
called  b}'  one  name  or  the  other.  In  ever}'  instance  in  which  an  agent 
takes  title  in  his  own  name  to  property  purchased  for  his  principal,  he 
makes  himself,  in  equity,  the  trustee  of  his  principal.  And  if,  in  the 
transaction  under  consideration.  Heller  &  Katz  were  the  agents  of 
the  defendants,  then  in  taking  the  lease  in  their  own  names  the}'  made 
themselves  the  trustees  of  the  defendants,  and  the  more  accurate 
description  of  the  relation  of  the  parties,  in  that  case,  would  be  trustee 
and  cestui  que  trust,  rather  than  principal  and  agent. 

The  precedents  are  against  the  complainant.  I  think  reason  is  also 
against  him.  No  reason  of  justice  or  policy  can  be  suggested  why 
landlords  should  have  the  additional  remedy  sought  in  this  case.     A 


652  KAYTON    V.   BARNETT.  [CHAP.  V. 

creditor  of  that  kind  is  already  highly  favored  by  the  law.  He  may 
distraia  either  against  the  tenant  or  the  under-tenant ;  if  the  person 
in  possession  fails  or  refuses  to  pay  the  rent  in  arrear,  the  landlord 
may  dispossess  him,  and  thus  recover  the  possession  of  the  premises, 
and  in  addition,  he  may  use  the  onl}-  means  within  the  reach  of  ordinary- 
creditors,  —  bring  his  action  at  law.  If  with  these  ample  remedies  at  his 
command  he  fails  to  secure  the.  payment  of  his  rent,  it  may  be  safely 
concluded  it  is  not  for  the  want  of  adequate  remedies. 

The  complainant's  hill  must  be  dismissed.,  loitlt,  costs. 


KAYTON  ET  AL.,  Appellants,  v.  BARNETT  et  al.,  Respondents. 

Court  of  Appeals  of  New  York.    1889. 

[116  y.  Y.  625] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court  of 
the  City  of  New  York,  entered  upon  an  order  made  December  2,  1886, 
which  denied  a  motion  for  a  new  trial,  and  directed  judgment  in  favor 
of  defendants,  entered  upon  an  order  nonsuiting  plaintiffs  on  trial. ^ 

This  action  was  brought  to  recover  a  balance  of  the  purchase-price 
alleged  to  be  due  for  certain  propert}'  sold  by  plaintiffs  to  defendants. 

On  the  17th  day  of  March,  1881,  the  plaintiffs  sold  and  delivered  to 
William  B.  Bishop  several  machines,  and  assigned  to  him  certain  letters- 
patent  for  the  agreed  price  of  $4,500.  Bishop  paid  $3,000  on  deliver}-, 
and  gave  three  notes,  dated  March  24,  1881,  for  $500  each,  one  due 

1  The  opinion  of  the  General  Term  is  thus  reported  in  22  Jones  &  Spencer,  78  :  — 

"  Truax,  J.  The  action  was  brought  to  recover  from  the  defendants  as  undisclosed 
principals.  The  evidence  shows  that  the  plaintiffs  asked  Bishop,  the  person  who,  as  a 
matter  of  fact,  bought  the  goods,  if  he  was  buying  for  the  defendants,  and  stated  to 
him  that  if  he  was  buying  for  tlie  defendants  plaintiffs  would  not  sell  the  goods  to 
them.  Bishop  said  that  he  was  not  buying  for  the  defendants,  but  that  he  was  buying 
for  himself. 

"  It  was  testified  on  the  trial,  and  for  the  purpo.ses  of  this  appeal  it  must  be  taken  as 
the  fact,  that  Bishop  was  buying  the  goods  for  the  defendants. 

"  Where  an  agent  acts  for  an  undisclosed  principal,  the  third  party  on  discovering 
the  principal  may  sue  him  and  recover  (Meeker  v.  Claghorn,  44  N.  Y.  351),  provided 
that  in  the  mean  time  the  principal  has  not  in  good  faith  paid  the  agent  (Armstrong  v. 
Stokes,  L.  R.  7Q.  B.  253  ;  Rowan  v.  Buttman,  1  Daly,  412),  and  provided  that  the 
credit  has  not  been  given  to  the  agent  as  agent.  Meeker  v.  Claghorn,  supra  ;  Coleman 
V.  First  Nat.  Bank  of  Elmira,  53  X.  Y.  388. 

"  In  each  of  these  cases  there  must  be  an  agency  which  was  unknown  to  the  plaiutifL 
But  in  the  case  before  the  court  the  plaintiffs  refused  to  contract  with  the  defendants. 
There  was  no  reciprocity  of  action  between  the  plaintiffs  and  the  defendants ;  if  the 
plaintiffs  had  refused  to  complete  the  contract  the  defendants  could  not  have  sued 
them  for  damages.  Humble  v.  Hunter,  12  Q.  B.  311  ;  Winchester  v.  Howard,  97  Mass. 
303  ;  Robson  v.  Drummond,  2  B.  &  Ad.  303. 

"  In  this  case  the  plaintiffs  did  not  give  credit  to  the  agent  as  agent,  because  they 
did  not  know  that  Bishop  was  acting  as  agent  for  the  defendants."  — Ed. 


SECT.  II.]  KAYTON    V.    BARNETT.  653 

nine  months,  one  fifteen  months,  and  one  eighteen  months  after  date, 
without  interest.  June  29,  1883,  Bishop  died  insolvent  without  having 
paid  the  notes,  or  any  part  of  them.  The  plaintiffs  tendered  the  notes 
to  the  defendants,  and  on  August  22,  1883,  brought  this  action  to 
recover  the  part  of  the  purchase-price  represented  by  the  notes,  on  the 
theory  that  Bishop,  as  agent  for  the  defendants,  bought  the  [jroperty 
for  them,  without  disclosing  his  principals  until  after  the  execution  and 
delivery  of  the  notes.  The  defendants,  in  their  answer,  denied  that 
they  purchased  the  property,  and  alleged  that  it  was  bought  by  William 
B.  Bishop  for  the  price  and  on  the  terms  stated  in  the  complaint. 

Further  facts  appear  in  the  opinion. 

W.  J.  Curtis,  for  appellants. 

A.  R.  Dyett^  for  respondents. 

FoLLETT,  C.  J.  When  goods  are  sold  on  credit  to  a  person  whom 
the  vendor  believes  to  be  the  purchaser,  and  be  afterwards  discovers 
that  the  person  credited  bought  as  agent  for  another,  the  vendor  has  a 
cause  of  action  against  the  principal  for  the  purchase-price.  The  defend- 
ants concede  the  existence  of  this  general  rule,  but  assert  that  it  is  not 
applicable  to  this  case,  because,  while  Bishop  and  the  plaintiffs  were 
negotiating,  they  stated  the}'  would  not  sell  the  property  to  the  defend- 
ants, and  Bishop  assured  them  he  was  buying  for  himself  and  not  for 
them.  It  appears  bj-  evidence,  which  is  wholly  uncontradicted,  that  the 
defendants  directed  ever}'  step  taken  b}'  Bishop  in  his  negotiations 
with  plaintiffs ;  that  the  propert}'  was  purchased  for  and  delivered  to 
the  defendants,  who  have  ever  since  retained  it;  that  they  paid  the 
$3,000  towards  the  purchase-price,  and  agreed  with  Bishop,  after  the 
notes  had  been  delivered,  to  hold  him  harmless  from  them.  Notwith- 
standing the  assertion  of  the  plaintiffs  that  they  would  not  sell  to  the 
defendants,  they,  through  the  circumvention  of  Bishop  and  the  defend- 
ants, did  sell  the  property  to  the  defendants,  who  have  had  the  benefit 
of  it,  and  have  never  paid  the  remainder  of  the  purchase-price  pursuant 
to  their  agreement.  Bishop  was  the  defendants'  agent.  Bishop's  mind 
was,  in  this  transaction,  the  defendants'  mind,  and  so  the  minds  of  the 
parties  met,  and  the  defendants  having,  through  their  own  and  their 
agent's  deception,  acquired  the  plaintiff's  property  by  purchase,  cannot 
successfully  assert  that  the}'  are  not  liable  for  the  remainder  of  tlie  pur- 
chase-price because  they,  through  their  agent,  succeeded  in  inducing  the 
plaintiffs  to  do  that  which  they  did  not  intend  to  do,  and,  perhaps, 
would  not  have  done  had  the  defendants  not  dealt  disingenuously. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with  costs 
to  abide  the  event. 

All  concur,  except  Haight,  J.,  not  sitting. 

Judgment  reversed. 


654  WATTEAU    V.    FENWICK.  [CHAP.  V. 


WATTEAU  V.  FENWICK. 
Queen's  Bench  Division.     1892. 

[[1893]   1    Q.  B.  346.] 

Appeal  from  the  decision  of  the  county  court  judge  of  Middles- 
borough. 

From  the  evidence  it  appeared  that  one  Humble  bad  carried  on  busi- 
ness at  a  beerhouse  called  the  Victoria  Hotel,  at  Stockton-on-Tees, 
which  business  he  had  transferred  to  the  defendants,  a  firm  of  brewers, 
some  years  before  the  present  action.  After  the  transfer  of  the  busi- 
ness, Humble  remained  as  defendants'  manager ;  but  the  license  was 
always  taken  out  in  Humble's  name,  and  his  name  was  painted  over  the 
door.  Under  the  terms  of  the  agreement  made  between  Humble  and 
the  defendants,  the  former  had  no  authority  to  buy  any  goods  for  the 
business  except  bottled  ales  and  mineral  waters ;  all  other  goods 
required  were  to  be  supplied  b}'  the  defendants  themselves.  The 
action  was  brought  to  recover  the  price  of  goods  delivered  at  the 
Victoria  Hotel  over  some  years,  for  which  it  was  admitted  that  the 
plaintiff  gave  credit  to  Humble  onl}' :  they  consisted  of  cigars,  bovril, 
and  other  articles.  The  learned  judge  allowed  the  claim  for  the  cigars 
and  bovril  only,  and  gave  judgment  for  the  plaintiff  for  £22  12s.  6d. 
The  defendants  appealed. 

1892.  Finlay,  Q.  C.  {Scott  Fox  with  him),  for  the  defendants. 
The  decision  of  the  county  court  judge  was  wrong.  The  liability  of  a 
principal  for  the  acts  of  his  agent,  done  contrary  to  his  secret  instruc- 
tions, depends  upon  his  holding  him  out  as  his  agent,  —  that  is,  upon 
the  agent  being  clothed  with  an  apparent  authority  to  act  for  his  prin- 
cipal. Where,  therefore,  a  man  carries  on  business  in  his  own  name 
through  a  manager,  he  holds  out  his  own  credit,  and  would  be  liable  for 
goods  supplied  even  where  the  manager  exceeded  his  authority.  But 
where,  as  in  the  present  case,  there  is  no  holding  out  by  the  principal, 
but  the  business  is  carried  on  in  the  agent's  name,  and  the  goods  are 
supplied  on  his  credit,  a  person  wishing  to  go  behind  the  agent  and 
make  the  principal  liable  must  show  an  agency  in  fact. 

[Lord  Coleridge,  C.  J.  Cannot  j-ou,  in  such  a  case,  sue  the  undis- 
closed principal  on  discovering  him  ?] 

Only  where  the  act  done  by  the  agent  is  within  the  scope  of  his 
agency  ;  not  where  there  has  been  an  excess  of  authority.  Where  any 
one  has  been  held  out  by  the  principal  as  his  agent,  there  is  a  contract 
with  the  principal  by  estoppel,  however  much  the  agent  may  have 
exceeded  his  authority ;  where  there  has  been  no  holding  out,  proof 
must  be  given  of  an  agency  in  fact  in  order  to  make  the  principal 
liable. 

Boydell  Houghton,  for  the  plaintiff.     The  defendants  are  liable  in 


SKCT.  II.]  WATTE  AU    V.    FEN  WICK.  655 

the  present  action.  They  are  in  fact  undisclosed  principals,  who  instead 
of  canying  on  the  business  in  their  own  names  employed  a  manager  to 
carry  it  on  for  them,  and  clothed  him  with  authority  to  do  what  was 
necessary  to  carr^'  on  the  business.  The  case  depends  upon  the  same 
principles  as  Edmunds  v.  Bushell,  L.  R.  1  Q.  B.  97,  where  the  manager 
of  a  business  which  was  carried  on  in  his  own  name  with  the  addition 
"  and  Co.,"  accepted  a  bill  of  exchange,  notwithstanding  a  stipulation 
in  tlie  agreement  witli  his  principal  that  he  should  not  accept  bills  ;  and 
the  Court  held  that  the  principal  vvas  liable  to  an  indorsee  who  took  the 
bill  without  an}"  knowledge  of  the  relations  between  the  principal  and 
agent.  In  that  case  there  was  no  holding  out  of  the  manager  as  an 
agent ;  it  was  the  simple  case  of  an  agent  being  allowed  to  act  as  the 
ostensible  principal  without  any  disclosure  to  the  world  of  there  being 
any  one  behind  him.  Here  the  defendants  have  so  conducted  them- 
selves as  to  enable  their  agent  to  hold  himself  out  to  the  world  as  the 
proprietor  of  their  business,  and  tlie}'  are  clearly  undisclosed  principals. 
Raniazotti  v.  Bowring,  7  C.  B.  (X.  8.)  851.  All  that  the  plaintiff  has 
to  do,  therefore,  in  order  to  charge  the  principals,  is  to  show  that  the 
goods  supplied  were  such  as  were  ordinarilv  used  in  the  business,  — 
that  is  to  sa}',  that  they  were  within  the  reasonable  scope  of  the  agent's 
authority. 

[He  also  cited  Yorkshire  Banking  Co.  v.  Beatson,  4  C.  P.  D.  204 ; 
5  C.  P.  D.  109.] 

Finlaij^  Q.  C,  in  reply,  cited  Summers  y.  Solomon,  7  E.  «&  B.  879. 

Cur.  adv.  vult. 

Dec.  12.  Lord  Coleridge,  C.  J.  The  judgment  which  I  am  about 
to  read  has  been  written  by  my  brother  Wills,  and  I  entirely  concur 
in  it. 

Wills,  J.  The  plaintiff  sues  the  defendants  for  the  price  of  cigars 
supplied  to  the  Victoria  Hotel,  Stockton -upon-Tees.  The  house  was 
kept,  not  by  the  defendants,  but  b}-  a  person  named  Humble,  whose 
name  was  over  the  door.  The  plaintiff  gave  credit  to  Humble,  and  to 
him  alone,  and  had  never  heard  of  the  defendants.  The  business, 
however,  was  reall}'  the  defendants',  and  the}-  had  put  Humble  into  it 
to  manage  it  for  them,  and  had  forbidden  him  to  buy  cigars  on  credit. 
The  cigars,  however,  were  such  as  would  usually  be  supplied  to  and 
dealt  in  at  such  an  establishment.  The  learned  count}-  court  judge 
held  that  the  defendants  were  liable.  I  am  of  opinion  that  he  was 
right. 

There  seems  to  be  less  of  direct  authority  on  the  subject  than  one 
would  expect.  But  I  think  that  the  Lord  Chief  Justice,  during  the 
argument  laid  down  the  correct  principle,  viz.,  once  it  is  established 
tliat  the  defendant  was  the  real  principal,  the  ordinary  doctrine  as  to 
principal  and  agent  applies,  —  that  the  principal  is  liable  for  all  the  acts 
of  the  agent  which  are  within  the  authority  usually  confided  to  an 
agent  of  that  character,  notwithstanding  limitations,  as  between  the 


656  ISHAM  V.    BURGETT.  [CHAP.  V. 

principal  and  the  agent,  put  upon  that  authority.  It  is  said  that  it  is 
only  so  where  there  has  been  a  hokling  out  of  authority,  —  which 
cannot  be  said  of  a  case  where  the  person  supplying  the  goods  knew 
nothing  of  the  existence  of  a  principal.  lUit  I  do  not  think  so. 
Otherwise,  in  every  case  of  undisclosed  principal,  or  at  least  in  every 
case  where  the  fact  of  there  being  a  principal  was  undisclosed,  the 
secret  limitation  of  authority  would  prevail  antl  defeat  the  action  of  the 
person  dealing  with  the  agent,  and  then  discovering  that  he  was  an 
agent  and  had  a  principal. 

But  in  the  case  of  a  dormant  partnei-  it  is  clear  law  that  no  limitation 
of  authority  as  between  the  dormant  and  active  partner  will  avail  the 
dormant  partner  as  to  things  within  the  ordinary  authority  of  a  partner. 
The  law  of  partnership  is,  on  such  a  question,  nothing  but  a  branch  of 
the  general  law  of  principal  and  agent,  and  it  appears  to  me  to  be 
undisputed  and  conclusive  on  the  point  now  under  discussion. 

The  principle  laid  down  by  the  Lord  Chief  Justice,  and  acted  upon 
by  the  learned  county  court  judge,  appears  to  be  identical  with  that 
enunciated  in  the  judgments  of  Cockburn,  C.  J.,  and  Mellor,  J.,  in 
Edmunds  v.  Bushell,  L.  R.  1  Q.  B.  97,  the  circumstances  of  which 
case,  though  not  identical  with  those  of  the  present,  come  very  near  to 
them.  There  was  no  holding  out,  as  the  plaintiff  knew  nothing  of  the 
defendant.  I  appreciate  the  distinction  drawn  bj-  Mr.  Finlay  in  his 
argument,  but  the  principle  laid  down  in  the  judgments  referred  to,  if 
correct,  abundantly  covers  the  present  case.  I  cannot  find  that  any 
doubt  has  ever  been  expressed  that  it  is  correct,  and  I  think  it  is  right, 
and  that  verj-  mischievous  consequences  would  often  result  if  that  i^rin- 
ciple  wei'e  not  upheld. 

In  my  opinion  this  appeal  ought  to  be  dismissed  with  costs. 

Appeal  dismissed.^ 


ISHAM  AND  ANOTHER  V.  BURGETT. 
Supreme  Judicial  Court  of  Massachusetts.     1893. 

[157  Mass.  546.) 

Holmes,  J.  This  is  an  action  for  the  price  of  poles  sold  for  the  use 
of  an  electric  light  company.  The  defendant  contended  that  the  com- 
pany alone  was  liable,  and  asked  a  ruling  to  that  effect.  The  judge 
before  whom  the  case  was  tried  found  as  a  fact  that  the  contract  was 
made  by  the  defendant,  and  the  only  question  is  whether  there  was  any 
evidence  warranting  the  finding.  The  testimon}'  was,  that  the  defend- 
ant gave  a  written  order,  and  orall}-  instructed  the  plaintiffs  to  charge 

1  Ace.  :  Hubbard  v.  Tenbrook,  124  Pa.  291   (1889). 
See  Hatch  v.  Taylor,  ante,  p.  291.  —  Ed. 


SECT.  II.]  ISHAM    V.    BURGETT,  657 

the  goods  to  the  company.  The  order,  when  produced,  appeared  to  be 
signed  by  the  defeiKhuit  in  such  a  way  as  to  ciiarge  him  on  its  face. 
Brown  v.  Bradlee,  156  Mass.  28  ;  Huntington  v.  Knox,  7  Cush.  371,  374. 
It  appeared  that  the  compaiiy  was  incorporated  when  the  order  was 
given,  but  that  no  capital  had  been  paid  in.  The  defendant  and  one 
Turner  built  tlie  wliole  electric  line  with  their  own  funds,  keeping  the 
account  in  which  the  plaintiffs'  debt  appeared  among  others  in  their 
own  books,  and  afterwards  received  substantially  all  the  stock  of  the 
compan}'  in  payment  for  it.  Whether  or  not  the  form  of  the  order  was 
enough,  without  more,  to  warrant  the  finding,  supposing  the  company 
to  have  been  the  principal,  in  view  of  the  charge  to  the  company  upon 
the  plaintiffs'  books  (Raymond  v.  Crown  &  Eagle  Mills,  2  Met.  319,  324  ; 
James  v.  Spaulding,  4  Gray,  451  ;  Lee  v.  Wheeler,  11  Gray,  236,  and 
Banfield  v.  Whipple,  10  Allen,  27,  31),  the  judge  was  warranted  in 
finding  that  the  real  principal,  as  well  as  the  mouthpiece  of  the  transac- 
tion, was  the  defendant,  so  that,  although  he  used  the  name  of  his 
creature,  the  corporation,  in  such  a  way  as  to  bind  it  to  the  plaintiffs  at 
their  election,  still,  when  they  discovered  the  facts,  they  had  the  right 
also  to  go  against  him.  The  judge  may  have  found  that  the  plaintiffs 
did  not  discover  the  facts  until  the  trial ;  that  until  then  they  supposed 
that  the  corporation  was  the  true  purchaser,  and  sought  to  charge  the 
defendant  with  the  contract  on  a  different  ground.  If  the  defendant 
saw  fit  to  use  the  name  of  the  corporation  on  his  own  behalf,  as  repre- 
senting himself  when  engaged  in  a  particular  business,  he  cannot  com- 
plain of  being  held  if  the  fact  happens  to  be  discovered.  Sloan  v. 
Merrill,  135  Mass.  17,  19.  Exceptions  overruled.'^ 

C  R.  Darling^  for  the  defendant. 

D.  A.  Dorr^  for  the  plaintiffs. 


^  The  order  above  referred  to  was  as  follows  :  — 


"Boston,  Aug.  23,  \i 


"  D.  B.  Isham  &  Son,  Boston,  Mass.  : 

"  Gentlemen,  —  Please  furnish  poles  as  follows :  F.  0.  B.,  Dover,  N.  H. 

100  poles,  .30  feet  long,  6  inches  at  top. 

115     "       35     "       "      7     " 

10     "       40    "       "      7     " 

These  must  be  straight  and  well  trimmed,  and  first-class  in  every  respect. 

"  H.  W.  BURGETT. 

"  Mark.     The  Dover  Electric  Light  Company. 
"  Prices  as  follows :  — 

30  —  6  inches.         $2.50. 
35  —  7      "  3.50. 

40—7      "  4.50. 

"  F.  0.  B.,  Dover,  N.  H."  —  RBp. 

Compare  Heffron  v.  Pollard,  73  Tex.  96  (1889). 

And  see  Spurr  v.  Cass,  L.  R.  5  Q.  B.  656  (1870).  — Ed. 


42 


658  SIMON   V.   MOTIVOS.  [CHAP.  V. 

SECTION   III. 

Whether  the  Third  Party  can  hold  the  Agent, 

SIMON   V.  MOTIVOS. 

King's  Bench.     1766. 

[3  Burr.  1921.] 

This  action  was  brought  against  the  defendant,  who  had  bought 
goods  at  an  auction,  which  were  not  talien  away  according  to  the  con- 
ditions of  sale,  but  put  up  again  and  resold. 

There  was  a  verdict  for  the  plaintiff ;  and  the  defendant  moved  for  a 
new  trial. 

The  defendant  was  a  broker ;  and  bid  for  one  Durant ;  but  did  not 
name  his  principal,  till  some  days  after. 

The  auctioneer,  when  he  knocked  down  the  lots  to  the  highest  bidder, 
put  down  his  name,  in  the  usual  manner,  as  the  purchaser  of  those 
goods.  The  defendant  came,  the  next  da}',  and  saw  the  goods 
weighed. 

The  objection  now  made  was,  "  That  this  contract,  not  being  in 
writing,  was  void  b}'  the  Statute  of  Frauds." 

But  the  Court  were  all  clearly  of  opinion,  that  the  auctioneer  must 
be  considered  as  agent  for  the  buyer  (after  knocking  down  the  hammer) 
as  well  as  for  the  seller ;  and  that  his  setting  down  in  writing  the 
name  of  the  buyer,  the  price,  etc.,  was  sufficient  to  take  it  out  of 
the  statute  ;  and  that  the  buyer's  coming  the  next  day,  and  seeing 
the  goods  weighed,  was  an  additional  circumstance  that  deserved 
attention.  And  they  inclined  to  think  "That  buying  and  selling  at 
auctions  was  not  within  the  Statute  of  Frauds." 

Upon  the  whole  (though  no  earnest  was  actually  paid),  they  dis- 
charged the  rule  which  had  been  made  upon  the  plaintiff,  for  him  to 
show  cause  why  the  verdict  which  he  had  obtained  against  the  buyer 
should  not  be  set  aside,  and  why  there  should  not  be  a  new  trial.^ 

1  Arc:  McComb  v.  Wright,  4  Johns.  Ch.  659  (1820)  ;  Royce  v.  Allen,  28  Vt.  234 
(1856);  McClellan  v.  Parker,  27  Mo.  162  (1858)  ;  Pierce  v.  Johnson,  34  Conn.  274 
(1867). 

It  is  settled  that  sales  at  auction  are  within  the  Statute  of  Frauds.  Kenworthy  v. 
Schofield,  2  B.  &  C.  945  (1824).  — Ed. 


SECT.  III.]  DAVENPORT   V.    RILEY.  659 


S.  DAVENPORT   &   CO.  v.  RILEY  AND   O'HEAR. 

Constitutional  Court  of  South  Carolina.     1822. 

[2  McCord,  198.] 

In  the  City  Court,  April  Term,  1822.  Process  to  recover  $57,  the 
difference  between  the  vaUie  of  sound  and  damaged  cotton. 

The  report  of  the  Recorder  :  — 

"  The  fact  of  the  damage  and  the  quantum  of  the  injur}'  were  clearly 
proved.  It  was  further  shown  by  a  witness  for  the  plaintiffs,  that  the 
cotton  was  purchased  from  the  defendants,  who  were  well  known  to  be 
factors  in  Charleston;  that  when  the  defendants  were  informed  by  the 
witness  that  the  cotton  was  damaged,  the}'  said  that  it  belonged  to  a 
planter,  and  not  to  them,  they  having  sold  it  as  factors.  The  sales 
were  made  out  in  the  manner  which  is  customary  with  factors,  and  the 
bags  were  stated  in  the  bill  to  be  marked  L ;  previously  to  bringing  the 
suit,  the  attorney  of  the  plaintiffs  wrote  a  letter  to  the  defendants,  who, 
in  their  answer  to  it,  replied  that  the  cotton  was  the  property  of  a  Mr. 
Lapeine,  in  King  Street,  and  that  the}'  had  disposed  of  it  as  factors. 
The  plaintiffs'  counsel  insisted  that,  as  the  defendants  had  sold  without 
disclosing  the  name  of  their  principal,  they  were  personally  responsible. 
The  defendants  contended  that,  the  sale  having  been  made  by  them  in 
their  character  of  factors,  the  principal  was  exclusively  liable.  I  de- 
creed for  the  defendants,  upon  the  ground  that  it  was  manifest  that  the 
sale  had  been  made  by  them  as  factors,  consequently  that  they  could 
not  be  rendered  individually  liable  unless  they  had  entered  into  some 
special  assumpsit  or  undertaking.  Notice  was  served  upon  me  that  a 
new  trial  would  be  moved  for  upon  the  grounds  which  are  enclosed. 

"  Wm.  Draytox,  Jiecorder." 

Richardson,  J.,  delivered  the  opinion  of  the  Court :  — 
In  the  case  of  Rabone  v.  Williams,  7  T.  R.  356,  Lord  Mansfield 
says:  "Where  a  factor  dealing  for  a  pi'incipal,  but  concealing  that 
principal,  delivers  goods  in  his  own  name,  the  person  contracting  with 
him  has  a  right  to  consider  liira,  to  all  intents  and  purposes,  as  the 
principal ;  and  though  the  real  principal  ma}'  bring  an  action,  yet  the 
purchaser  may  set  off  any  claim  he  may  have  against  the  factor."  This 
has  been  long  settled.  In  the  case  of  Mauri  r.  Hefferman,  13  Johns. 
58,  it  is  decided  that  to  excuse  an  agent  he  should  have  communicated 
his  agency.  See  also  2  Str.  1182  and  2  Camp.  24  and  341,  where  the 
same  rule  is  fully  recognized.  Without  such  a  rule,  the  opportunity  of 
committing  frauds  would  be  infinite,  and  the  greatest  caution  in  con- 
tracts utterly  vain.  For  instance,  a  country  trader,  who  had  purchased 
goods  of  a  respectable  and  res|)onsible  merchant,  upon  discovering  that 
they  were  unsound,  might  be  tiu-ned  over  for  his  remedy  to  an  unknown 
foreigner.     A  citizen   who  purchased   a   horse   in  the  same  situation 


660  CHASE   V.   DEBOLT.  [CHAP.  V. 

might  be  sent  to  Kentucky  for  the  restoration  of  his  mone}',  though  he 
had  contracted  with  a  livery*  stable  keeper  resident  here.  A  foreign 
trader  who  has  purchased  our  produce,  upon  the  character  of  an  estab- 
lished factor  or  other  vendor  of  known  responsibility,  might  be  referred 
to  an  insolvent  debtor. 

It  cannot  be  doubted  that  strangers  coming  to  purchase  of  us  will 
not  only  deal  more  readil}',  but  even  give  higher  prices  to  known  fac- 
tors, because  of  their  responsibilit}-.  And  such  a  reliance  is  a  part  of 
Ihe  contract  not  to  be  trifled  with.  The  rule,  then,  that  every  man  is 
liable  upon  his  own  contracts  unless  he  lets  the  opposite  party  know 
ihat  he  is  a  mere  agent  for  another,  must  be  preserved.  Men  depend 
«pon  those  with  whom  the  contract  is  made ;  and  are  not  to  be  sup- 
j)Osed  as  confiding  in  mere  strangers.  To  say  that  the  authority  of  a 
factor's  employment  is  of  itself  notice  to  a  purchaser,  would  be  too 
iftnsafe.  Factors  of  ever}-  description  often  sell  for  themselves.  With 
♦)ur  factors,  selling  rice  or  cotton,  it  is  often  that  they  are  the  planters, 
*jnd  nia}'  be  speculators  in  the  produce  too. 

The  motion  therefore  is  granted. 

Dunkht  &  (Jamphell^  for  the  motion. 

Mamiltoii  &  Petigru,  contra. 


HENRY  J.   CHASE,  Appellant,  v.  DEBOLT,   Appellee. 
Supreme  Court  of  Illinois.     1845. 

[7  ///.  371.] 

This  was  a  suit  originalh-  brought  before  a  justice  of  the  peace  of 
Peoria  County,  by  the  appellee  against  the  appellant,  when  judgment 
was  rendered  for  the  plaintiff  below,  for  $75.93|. 

The  case  was  appealed  to  the  Circuit  Court,  and  heard  before  the 
Hon.  John  D.  Caton  and  a  jury,  at  the  October  term  1845.  Verdict 
and  judgment  for  the  plaintiff,  for  the  amount  recovered  before  the 
justice. 

A  summary  of  the  evidence  will  be  found  in  the  opinion  of  the 
Court. 

E.  JV.  Powell  and  W.  F.  Bryan,  for  the  appellant. 

A.  Lincoln  and  H.  0.  Merriman,  for  the  appellee. 

ScATES,  J.^  Debolt  sued  Chase  before  a  justice  of  the  peace  for 
$75.93f  on  an  account  for  work  and  labor  done  upon  Jubilee  Col- 
lege.'* .   .  . 

1  Wilson-,  C.  J.,  and  Lockwood,  J.,  did  not  sit  in  this  case.  —  Rep. 

2  The  omitted  passages  hold  that  there  was  no  error  in  admitting  certain  evidence 
to  which  objection  had  been  made  as  hearsay.  —  Ed. 


SfiCT.  III.]  CHASE   V.    DEBOLT.  661 

The  refusal  of  the  Court  to  grant  a  new  trial  is  also  assigned  for 
error.  All  the  evidence  is  set  out  in  the  bill  of  exceptions.  The 
plaintiffs  whole  bill  of  items  amounted  to  $75.y3|,  which  was  all 
allowed  by  the  jury.  From  the  evidence,  it  appears  that  Chase  was 
the  agent  of  Bishop  Chase  in  hiring  labor  and  superintending  the  work 
on  Jubilee  College.  Debolt  asked  Bennett,  a  clerk  in  the  store  at 
Jubilee,  if  he  could  get  work  on  the  college.  Bennett  answered  that 
he  supposed  he  could,  but  that  Henry  J.  Chase  was  the  agent  who 
employed  all  hands.  lie  went  to  Chase,  who  employed  him,  but  he 
did  not  tell  him  that  he  was  agent  for  the  bishop.  Debolt  frequentl}^ 
received  pay  from  the  bishop.  The  account  of  labor  was  always  re- 
turned to  Bennett  to  the  store,  and  he  gave  orders  upon  the  bishop  for 
the  pay ;  when  he  had  not  the  change,  he  would  send  to  the  store,  and 
Bennett  would  pay.  One  order  for  eight  dollars  given  Debolt  on  the 
bishop  for  work,  had  been  returned  receipted  by  Debolt ;  and  also 
another  receipt  had  been  given  by  Debolt  for  one  dollar  received  of 
Bishop  Chase.  Witness  supposed  that  when  Debolt  was  receiving  pay 
for  his  labor,  he  knew  he  was  receiving  it  of  Bishop  Chase.  He  fur- 
ther testified  that  Henry  J.  Chase  had  had  no  work  done  for  him  bj- 
Debolt. 

Daniel  Blucher,  another  witness,  testified  that  he  had  worked  on 
Jubilee  College  ;  that  Debolt  commenced  in  the  fall  and  worked  until 
spring,  during  the  time  witness  worked  ;  that  witness  had  been  em- 
ployed by  H.  J.  Chase  ;  that  he  knew  he  was  working  for  the  bishop, 
and  Debolt  also  knew  that  he  was  working  for  Bishop  Chase;  that 
witness  had  always  received  his  pa}'  from  the  bishop,  and  never  from 
H.  J.  Chase,  although  he  had  worked  some  days  on  the  College  farm. 

The  admissions  of  the  plaintiflT,  Chase,  proven  by  the  justice,  were, 
that  he  had  employed  the  defendant,  Debolt,  to  work  on  the  college, 
as  the  agent  of  Bishop  Chase,  but  did  not  inform  defendant  at  the 
time  that  he  was  only  an  agent,  but  the  work  was  done  for  the  bishop ; 
that  defendant  never  worked  for  him,  and  he  owed  him  nothing,  and 
that  defendant  had  received  from  the  bishop  the  greater  portion  of  his 
pay.  The  Court  never  interferes  with  verdicts  upon  facts,  for  any 
slight  preponderance  of  testimony.  But  where  there  is  a  strong  pre- 
ponderance of  testimony  it  will  set  verdicts  aside,  especially  where 
apparent  injustice  has  been  done. 

Agents  may  become  liable  for  contracts  made  for  their  principals, 
where  they  conceal  or  do  not  disclose  their  character  of  agent,  and  it 
is  unknown  to  the  i^arty  with  whom  they  contract,  and  they  may  also 
by  the  nature  and  character  of  the  contract  entered  into.  But  it  is 
quite  immaterial  whether  the  agent  disclose  his  character  or  his  princi- 
pal, himself,  if  it  be  actually  known  at  the  time  to  the  other  part}-.  In 
such  case  the  agent  will  not  be  bound,  unless  he  enter  into  such  a  con- 
tract as  will  bind  him  at  all  events. 

In  this  case,  we  cannot  doubt  that  Debolt  knew  at  the  time  he  was 
employed,  that  plaintiff  was  merely  an  agent,  for  he  had  before  been 


662  PIKE  V.   ONGLEY.  [CHAP.  V. 

SO  informed  by  Bennett,  and  he  afterwards  took  orders  to,  and  re- 
ceived payment  of  the  bishop.  The  fact  of  plaintiff's  agency  was 
known  to  a  co-laborer,  and  from  these  circumstances,  the  preponder- 
ance of  testimony  to  establish  these  facts  is  clear,  strong,  and  irresist- 
ible upon  the  record.  And  establishing  this  fact  discharges  the  plain- 
tiff from  all  liability,  as  there  is  nothing  in  the  nature  of  this  simple 
hiring  to  charge  liiin.  In  another  particular  the  verdict  is  manifestly 
against  the  weight  of  evidence.  The  jury  have  allowed  the  plaintiffs 
whole  account,  although  two  receipts  were  in  evidence,  showing  that 
he  had  been  paid  nine  dollars. 

Upon  the  facts  in  the  record,  we  feel  compelled  to  reverse  the  judg- 
ment and  award  a  new  trial.  Judgment  reversed  with  costs,  and  cause 
remanded  with  directions  to  award  a  venire  de  novo. 

Judgment  reversed.'^ 


PIKE,  SONS,  &  CO.  V.  ONGLEY  AND  THORNTON. 

Queen's  Bench  Division  and  Court  of  Appeal.     1887. 
[18  Q.  B.  I).  708.] 

Motion  for  a  new  trial  or  to  enter  judgment  for  the  defendants  on 
the  ground  of  misdirection  and  misreception  of  evidence. 

The  action  was  brought  against  the  defendants,  who  were  hop 
brokers,  to  recover  damages  for  the  non-delivery  of  hops  equal  to 
sample  sold  under  a  written  contract  in  the  following  terms :  "  Sold 
by  Ongley  &  Thornton  to  Messrs.  Pike,  Sons,  &  Co.,  for  and  on 
account  of  owner,  100  bales,  Hallertau  Bavarian  hops,  at  52.';.  per  cwt. 
Delivery  in  October.  (Signed)  for  Ongley  &  Thornton,  S.  T."  At 
the  trial  before  Manisty,  J.  and  a  special  jury,  the  plaintiffs  contended 
that  the  defendants  were  personally  liable  on  the  contract,  and  evi- 
dence was  tendered  to  show  that,  by  the  custom  of  the  hop  trade  in 
such  a  contract,  if  the  principal  be  not  disclosed  at  the  time  of  making 
the  contract,  the  broker  is  in  fact  regarded  as  the  principal  and  is  held 
liable.  The  evidence  was  admitted  by  the  learned  judge.  It  was  ad- 
mitted by  the  parties  that  the  plaintiffs  had  not  asked  the  defendants 
for  the  name  of  their  principal,  but  there  was  evidence  to  show  that 
the  plaintiffs  in  fact  knew  that  he  was  a  foreigner.  The  jury  found 
a  verdict  for  the  plaintiffs,  and  judgment  was  entered  in  accordance  with 
the  finding. 

Winch ^  for  the  defendants. 

Murphy,  Q.  C,  and  Pyhe  for  the  plaintiffs. 

Day,  J.  The  document  upon  which  this  action  was  brought  is 
a  sale  note  of  the  defendants,  who  purported  to  sell  thereby  certain 

I  Ace:  Boston  &  Maine  Railroad  v.  Whitcher,  1  Allen,  497  (1861);  "Warren  ». 
Dickson,  27  111.  115  (1862).  —  Ed.      . 


SECT.  III.]  PIKE   V.    ONGLEY.  663 

hops  to  the  plaintiffs  "  for  and  on  account  of  the  owner."  The  ques- 
tion is  whether  that  contract  on  the  face  of  it  makes  the  brokers  liable 
as  principals,  or  whether,  if  that  is  not  so,  evidence  can  be  given  to 
vary  the  contract  by  showing  a  trade  custom  to  treat  as  principals 
brokers  who  have  not  disclosed  the  names  of  their  principals  at  the 
time  of  the  making  of  tlie  contract.  "It  is  clear  from  a  series  of 
decisions  that  where  the  contract  sued  upon  has  been  made  b}'  a  broker 
'  for'  or  '  for  and  on  account  of  an  undisclosed  or  foreign  principal, 
the  broker  is  not  priuiuril}'  liable."  That  is  the  result  of  the  decision 
in  Gadd  v.  Houghton,  I  Ex.  D.  357,  where  the  Court  of  Appeal  held 
that  where  the  words  "on  account  of"  were  inserted  in  the  body  of 
a  contract,  the  broker  was  not  personally  liable.  That  case  is  binding 
and  conclusive,  and  we  must  hold  that  in  the  present  case,  where 
goods  have  been  sold  "  for  and  on  account  of"  an  owner  (the  owner 
not  having  been  named),  the  brokers  are  not  primarily  liable.  That 
is  a  convenient  expression  to  use.  But  evidence  was  in  this  case 
tendered  to  prove  a  trade  custom,  and  such  evidence  is  often  admissi- 
ble where  it  is  not  inconsistent  with  the  contract.  "The  custom  here 
set  up  was  that,  if  the  broker  did  not  disclose  the  name  of  his  princi- 
pal, he  was  himself  personally  liable."  I  asked  whether  the  custom 
was  that  "the  principal  should  be  disclosed  at  the  time  of  the  making 
of  the  contract,"  and  I  gather  from  the  judge's  notes  and  from  the 
answers  of  counsel  that  "  a  primary  liabilit}'  would  attach  to  the  broker 
as  part  of  the  contract,"  if  that  was  not  done.  If  that  is  so,  the  new 
term  contradicts  the  written  document,  which  says  that  the  defendants 
do  not  contract  for  themselves,  but  for  the  owner  of  the  hops,  thus 
excluding  all  idea  of  primary  liability  ;  until  it  was  shown  that  they 
were  the  owners,  they  could  not  be  taken  to  be  so.  Therefore  I  am 
of  opinion  that  the  evidence  of  custom  which  was  tendered  was  inad- 
missible, and  that  the  learned  judge  at  the  trial  ought  to  have  con- 
strued the  contract  and  directed  a  verdict  for  the  defendants.^ 

Judgment  reversed. 

The  plaintiffs  appealed. 

3Iurphy.i  Q.  C,  and  PyJce,  for  the  plaintiffs. 

Finlay^  Q.  C.  and  Winc/i,  for  the  defendants. 

Lord  EsHER,  M.  R.  In  this  case  the  defendants  are  clearly  not 
liable  upon  the  contract  itself;  they  were  selling  as  agents  for  an 
owner,  and  in  the  absence  of  trade  usage  no  liability  would  attach  to 
them.  The  evidence  of  tho  witnesses  who  were  called  to  prove  the 
custom  came  to  this,  that  if  the  name  of  the  owner  \.^ac  not  given  in, 
or  at  the  time  of  the  making  of,  the  contract,  the  buyer  had  the  right 
to  treat  the  broker  as  principal ;  and  on  such  a  custom  I  should  say 
that  even  if  the  owner's  name  were  disclosed  after  the  making  of  the 
contract,  the  buyer  might  sue  either  the  principal  or  the  broker.  Is  it 
the  fair  meaning  of  such  evidence  to  say  that  where  a  broker  sa^-s  in 

1  A  concurring  opinion  by  Wills,  J.,  is  not  reprinted.  —  Ed. 


664  JOSEPH   V.   KNOX.  [chap.  T. 

the  contract  that  he  is  acting  for  a  principal,  though  an  undisclosed 
one,  the  buyer  is  to  loolc  onl}'  to  him  and  not  to  the  real  principal? 
Such  a  custom  would  be  in  direct  contradiction  of  the  terms  of  the 
written  contract,  but  I  can  see  no  reason  for  supposing  that  a  man 
having  a  remedy  against  two  persons  would  deliberately  debar  him- 
self of  his  remedy  against  one  of  them.  The  custom  is  not  wanted 
in  such  a  case  :  it  is  only  wanted  where  there  is  a  principal  who  could 
be  charged  and  the  contract  is  made  without  disclosing  his  name. 
The  meaning  of  this  custom  is  that  where  the  principal's  name  is  not 
disclosed  in  or  at  the  time  the  contract  is  made,  the  buyers  reserve  to 
themselves  the  right  of  suing  the  broker  or  factor.  I  can  well  conceive 
that  in  this  trade,  and  in  many  others,  such  a  custom  is  for  the  broker's 
benefit,  and  I  am  clearly  of  opinion  that  the  evidence  was  properly 
admitted  by  the  learned  judge  at  the  trial.  If  any  remarks  of  mine 
in  the  judgment  in  Hutchinson  v.  Tatham,  L.  R.  8  C.  P.  482,  are 
in  conflict  with  our  present  decision  the}'  must  be  considered  as  with- 
drawn.    The  appeal  must  be  allowed. 

Fry,  L.  J.  I  am  of  the  same  opinion.  If  the  objection  were  now 
being  taken  for  the  first  time  to  the  admissibility  of  evidence  of 
a  custom  to  charge  the  brokers  as  principals  in  the  event  of  non- 
disclosure by  them  of  their  principals  at  the  time  of  the  contract,  I 
should  have  paused  before  deciding  in  favor  of  its  admissibility. 
But  that  proposition  is  now  clearly  established ;  and  we  have  only 
to  consider  whether  by  the  custom  of  the  trade  the  defendants  were 
liable  from  the  beginning  as  principals,  and  whether  such  a  custom 
contradicts  the  written  contract.  I  can  entertain  no  doubt  on  either 
point.  By  the  terms  of  the  document  itself  the  owner  is  liable  ;  the 
custom  says  the  broker  shall  be  liable  also  ;  there  is  nothing  in  that 
which  is  inconsistent  with  the  contract,  though  it  would  be  inconsistent 
if  the  custom  were  to  exclude  the  liability  of  the  owner. 

Appeal  allowed} 


SECTION   IV. 

Whether  the  Agent  can  hold  the  Third  Party, 

JOSEPH     AND     OTHERS     V.     KNOX. 

Nisi  Prius.     1813. 

[3   Camp.  320.] 

This  was  an  action  against  the  owner  of  a  ship  on  a  bill  of  lading 
signed  by  the  master,  for  not  carrying  goods  from  London  to  Surinam. 

1  See  Lyon  v.  Williams,  5  Gray,  5.57  (1856)  ;  Williamson  r.  Barton,  ante,  p.  S35; 
Fleet  V.  Murton,  L.  E.  7  Q.  B.  126  (1871).  —  Ed. 


SECT.  lY.]  JOSEPH   V.    KNOX.  665 

The  bill  of  lading  stated  that  the  goods  were  shipped  by  the  plain- 
tiffs ;  that  they  were  to  be  delivered  in  Surinam  to  Levy  Davids  or  his 
assigns  •,  and  that  the  freight  was  paid  in  London. 

The  goods  consisted  chiefly  of  butter,  which  the  plaintiffs  had 
received  from  Sussraan  &  Polack  of  Amsterdam,  to  be  forwarded  to 
Levy  Davids  in  Surinam,  and  which  in  an  answer  to  a  bill  in  equity 
they  swore  they  believed  to  be  his  property. 

Topping^  for  the  defendant,  insisted,  that  this  action  could  not  be 
maintained  by  Joseph  &  Co.,  who  had  no  interest  in  the  goods.  They 
were  merely  the  conduit  through  which  the  goods  were  to  be  trans- 
mitted from  Sussman  &  Polack  at  Amsterdam  to  Levy  Davids  at 
Surinam.  The  property  being  in  Levy  Davids,  he  alone  was  injured 
by  the  non-deliverv  of  the  goods,  and  he  alone  could  sue  to  recover 
their  value.  It  has  often  been  decided  that  an  action  against  a  com- 
mon carrier  for  the  loss  of  goods  must  be  brought  b}-  the  purchaser 
who  ought  to  receive  them,  and  not  by  the  vendor  who  has  delivered 
them  to  the  earlier.  There,  the  vendor  delivers  them  merel}'  as  the 
agent  of  the  purchaser,  and  on  that  ground  can  maintain  no  action 
respecting  them.  What  difference  can  it  make  that  here  the  goods 
were  to  be  conveyed  on  board  a  ship  ?  The  plaintiffs  were  still  merely 
the  agents  of  the  real  owner  of  the  goods. 

Lord  Ellenborough.  1  am  of  opinion  that  this  action  well  lies. 
There  is  a  privit}-  of  contract  established  between  these  parties  by 
means  of  the  bill  of  lading.  That  states  that  the  goods  were  shipped 
b3'  the  plaintiffs,  and  that  the  freight  for  them  was  paid  by  the  plain- 
tiffs in  London.  To  the  plaintiffs,  therefore,  from  whom  the  consid- 
eration moves,  and  to  whom  the  promise  is  made,  the  defendant  is 
liable  for  the  non-delivery  of  the  goods.  After  such  a  bill  of  lading 
has  been  signed  by  his  agent,  he  cannot  say  to  the  shippers  they  have 
no  interest  in  the  goods  and  are  not  damnified  by  his  breach  of  con- 
tract. I  think  the  plaintiffs  are  entitled  to  recover  the  value  of  the 
goods,  and  they  will  hold  the  sum  recovered  as  trustees  for  the  real 
owner. 

It  appeared  that  the  ship  in  question  was  in  the  same  fleet  mentioned 
in  the  case  of  Van  Omeron  y.  Dowick,  2  Campb.  42,  and  that  the 
goods  were  sold  at  Grenada,  exactl}'  under  the  same  circumstances. 
Lord  Ellenborough  again  laid  down  the  same  doctrine  with  regard 
to  the  authority  of  the  master  over  the  cargo,  which  was  acquiesced 
in  on  the  part  of  the  defendant,  and  the  plaintiffs  had  a  verdict^ 

Garrow^  S.  G.  Park,  and    Taclcly,  for  the  plaintiffs. 

Topping  and  Camjybell  for  the  defendant. 

1  Ace:  Blanchard  v.  Page,  8  Gray,  281  (1857). 

Compare  Dawes  v.  Peck,  8  T.  R.  330  (1799). 

See  Dunlop  v.  Lambert,  6  CI.  &  F.  600  (1839)  ;  Col])nrn  v.  Phillips,  13  Gray,  64 
(1859);  Hooper  v.  Western  Railroad  Co.,  27  Wi.s.  81  (1870)  ;  Finn  v.  Western  Rail- 
road Co.,  1 1 2  Mass.  524  (1873) ;  Snider  i-.  Adams  Express  Co.,  77  Mo.  523  ( 1 883).  —  Ed 


666  GARDINER   V.   DAVIS.  [CHAP.  V. 


GARDNER  v.   DAVIS. 

Nisi    Prius.     1825. 

[2  c.  <y  P.  49.] 

Assumpsit  for  goods  sold.  The  plaintiff  was  a  cow-keeper,  the 
defendant  a  milkman.  The  sale  and  deliver^'  by  the  plaintiff  to  the 
defendant  being  proved,  evidence  was  adduced  on  the  part  of 
the  defendant,  to  show,  that  though  the  plaintiff  ostensibly  carried  on 
the  business  of  a  cow-keeper,  and  had  his  name  painted  on  the  carts, 
his  initials  branded  on  the  pails,  &c,  yet  that  the  business  really 
belonged  to  a  Mrs.  Evans. 

Abbott,  C.  J.  The  question  here  is,  more  properly*.  With  whom 
was  this  present  contract  made?  than.  To  whom  did  the  business 
belong?  for  if  a  person  allow  another  to  trade  in  his  own  name,  and 
to  hold  himself  out  to  the  world  as  carrying  on  the  business,  a  pay- 
ment to  that  other  would  be  a  good  bar  to  an  action  brought  bj'  the 
person  for  whom  the  trade  was  reall}'  carried  on.  And  the  person 
ostensibl}'  carrying  on  the  trade  is  by  law  entitled  to  recover  for  goods 
sold  in  the  course  of  that  trade  unless  the  person  so  suffering  him  to 
carry  on  the  trade  interfere,  by  asserting  his  or  her  right  to  the  sum 
due.  In  this  case,  it  appears  that  the  defendant  owes  the  money 
either  to  the  plaintiff  or  to  Mrs.  Evans,  and  that  the  business  was 
carried  on  b}-  the  plaintiff  in  his  own  name,  and  that  Mrs.  Evans  has 
taken  no  step  whatever  to  assert  any  right  that  she  may  have  to  this 
money ;  and,  therefore,  taking  it  that  the  plaintiff  was  carrying  on  the 
trade  in  his  own  name  with  her  privity  and  consent,  but  was  really  a 
sort  of  agent  to  her,  as  she  has  not  interfered  to  assert  an}'  claim  to 
this  mone}',  he  would  still  be  entitled  to  recover  in  this  action.^ 

Verdict  Jvr  t/te  plaintiff.     Damages  £15  6s. 

brougham  and  Abraham,  for  the  plaintiff. 
Corny n,  for  the  defendant. 

1  In  Sims  v.  Bond,  5  B.  &  Ad.  389,  393  (1833),  Denman,  C.  J.,  said:  "It  is  a  well 
established  rule  of  law,  that  where  a  contract,  not  under  seal,  is  made  with  an  agent, 
in  his  own  name,  for  an  undisclosed  principal,  either  the  agent  or  the  principal  may 
sue  upon  it ;  the  defendant  in  the  latter  case  being  entitled  to  be  placed  in  the  same 
situation,  at  the  time  of  the  disclosure  of  the  real  principal,  as  if  the  agent  had  been 
the  contracting  party."  —  Ed. 


SECT.  IV.]  SHOKT  V.   SPACKMAN.  667 


SHORT  AND   OTHERS  V.   SPACKMAN. 
King's  Bench.     1831. 

[2  B.  Si-  Ad.  962.] 

Assumpsit  for  not  delivering  goods.  At  the  trial  before  Lord 
Tenterden,  C.  J.,  at  the  sittings  in  London  after  Trinity  term,  1831, 
a  verdict  was  found  for  the  plaintiffs  for  £600  subject  to  a  reference. 
The  arbitrator  made  his  award,  and  annexed  to  it,  at  the  request  of 
the  defendant's  counsel,  a  statement  to  the  following  effect:  The 
plaintiffs  being  brokers,  and  authorized  b^-  one  Hudson  to  buy  for  him 
twenty  tons  of  Greenland  whale  oil,  employed  Bentle^',  an  oil  broker, 
to  make  such  purchase  for  them.  Bentley  applied  to  the  defendant  to 
sell  that  quantity  to  the  plaintiffs.  The  defendant  at  first  refused  to 
sell  to  the  plaintiffs  ;  but,  upon  being  informed  by  Bentley  that  they 
were  purchasing  not  for  themselves,  but  as  brokers  for  unnamed 
principals,  he  agreed  to  sell  to  them  ;  and  bought  and  sold  notes, 
signed  by  Bentley,  were  sent  by  him  to  the  plaintiff's  and  defendant, 
in  which  the  goods  were  stated  to  be  "  Bought  for  Messrs.  Short, 
Brown,  and  Bowyer,"  (the  plaintiffs)  "  of  Mr.  W.  F.  Spackman,"  (the 
defendant)  on  the  terms  therein  specified,  to  be  paid  for  bj'  the  buyers 
in  ready  money.  The  plaintiffs  sent  a  corresponding  bought  note  to 
Hudson,  their  principal ;  and  they  afterwards,  under  a  general  author- 
ity from  him,  sold  the  goods  for  his  account,  through  another  broker, 
to  Messrs.  Buck  and  Co.  The  bought  and  sold  notes  in  this  ti'ansac- 
tion  mentioned  the  plaintiffs  and  Buck  and  Co.,  as  the  buying  and 
selling  parties.  On  this  sale  being  communicated  to  Hudson,  he 
returned  the  sold  note,  which  had  been  sent  to  him,  declaring  that  he 
would  have  nothing  to  do  with  the  oil  as  purchaser  or  seller ;  and  to 
this  the  plaintiffs  assented.  The  defendant  afterwards  refused  to 
deliver  the  oil  in  pursuance  of  his  agreement,  and  the  plaintiffs,  being 
unable  to  fulfil  their  engagement  with  Buck  and  Co.,  were  obliged  to 
pay  them  a  sum  of  money  in  satisfaction,  the  market  having  risen 
since  the  last-mentioned  contract.  It  was  contended,  on  behalf  of 
the  defendant,  that  Hudson's  repudiation  of  the  contract,  and  the  ac- 
quiescence of  the  plaintiffs  therein,  put  an  end  to  the  engagement 
between  the  plaintiffs  and  defendant.  The  arbitrator,  however,  was 
of  opinion  that  these  facts  did  not  affect  either  the  rights  of  the  de- 
fendant as  against  Hudson,  or  the  rights  and  liabilities  of  the  plaintiffs 
and  defendant.  He  therefore  awarded  that  the  defendant  should  pay 
the  plaintiffs  the  amount  of  the  loss  sustained  by  them  in  their  settle- 
ment with  Buck  and  Co.  A  rule  nisi  was  obtained  this  term  for 
setting  aside  the  award,  on  the  ground  that  the  action  was  not  main- 
tainable upon  the  facts  above  stated. 

F.  Pollock  and  F.  Kellij  now  showed  cause. 

Sir  James  Scurhdt  and  Tomlinson,  contra. 


t)68  UNITED   STATES   TELEGRAPH    CO.    V.    GILDEESLEVE.       [CIIAP.  V. 

Lord  Tenterden,  C.  J.  I  had  at  first  some  difficulty  in  coming  to 
tlie  conclusion  that  the  plaintiffs,  situated  as  they  were  in  this  case, 
could  sue  upon  the  contract  for  their  own  benefit.  But  on  looking  to 
the  contract  itself,  there  appears  nothing  to  prevent  it.  The  form  of 
the  bought  note  is,  "  Bought  for  Messrs.  Short,  Brown,  and  Boyer," 
twenty  tons  of  Greenland  oil,  at  so  much  per  ton,  to  be  paid  for  by 
the  buyers  in  ready  mone}'.  The  sold  note  is  in  the  like  form.  In 
both  the  plaintiff's  appear  as  the  principals.  The  rest  of  the  facts  are 
dehors  the  present  question.     The  rule  will  therefore  be  discharged. 

Parke,  J.  There  was  no  fraud  upon  the  defendant  in  this  case. 
He  was  informed  that  there  was  an  unknown  principal,  and  such  was 
the  fact.  It  is  found  that  the  plaintiffs  were  authorized  bj'  Hudson  to 
buy  the  oil  of  the  defendant,  and  the  contract  was  binding  both  on 
them,  and,  if  the  defendant  chose  to  enforce  it,  on  Hudson.  Then  it 
is  said  the  contract  was  put  an  end  to  by  what  is  called  the  repudiation 
on  Hudson's  part :  that  is,  by  his  informing  the  plaintiffs  that  he  would 
have  nothing  more  to  do  with  the  purchase  or  sale,  and  by  their  ac- 
quiescing in  such  determination.  But  this  is  no  more,  in  effect,  than  if 
Hudson  had  thought  proper  to  sell  the  benefit  of  his  contract  to  any 
other  person,  which  he  might  have  done  without  the  consent  of  the 
plaintiffs  :  and  his  doing  so  would  have  been  nothing  to  the  defendant. 
It  clearly  would  not  have  determined  the  contract.  I  think,  therefore, 
that  the  arbitrator  came  to  a  right  conclusion. 

Taunton,  J.  I  am  of  the  same  opinion.  The  alleged  repudiation 
of  the  contract  b}'  Hudson  was  not  a  circumstance  of  which  the  defend- 
ant can  take  advantage. 

Patteson,  J.  Upon  the  bought  and  sold  notes  the  plaintiffs  appear 
to  purchase  as  principals.  To  show  that  the}'  acted  as  brokers,  other 
facts  must  be  imported  into  the  case ;  and  upon  those  facts  it  appears 
that  they  were  duly  authorized  as  brokers.  What  happened  afterwards 
cannot  affect  their  right  to  recover. 

Rule  discharged. 


THE  UNITED   STATES   TELEGRAPH  COMPANY  v, 
GILDERSLEVE. 

Court  of  Appeals  of  Maryland.  1868. 

[29  Md.  232.] 

Appeal  from  the  Superior  Court  of  Baltimore  City.^  .  .  . 
The   defendant    also   prayed    the    Court    to    instruct   the  jury  as 
follows :  .  .  . 

1  The  reporter's  statement  and  the  opinion  have  been  abbreviated  bj  omitting  pa» 
sages  not  bearing  on  Agency.  —  Ed. 


SECT.  IV.]      UNITED   STATES   TELEGRAPH   CO.    V.   GILDERSLEVE.  669 

3.  That  the  plaintiff  cannot  recover  in  this  case  anything  but  nomi- 
nal damages,  if  the}'  shall  find  that  he  has  sustained  no  loss  by  reason 
of  the  non-delivery  of  said  dispatch,  even  although  they  may  find  that 
A.  B.  Patterson,  acting  by  authority  of  the  plaintiff,  sent  said  message, 
and  sustained  loss  b}'  reason  of  such  failure. 

4.  That  there  is  no  evidence  that  the  plaintiff  has  sustained  any 
damage  in  tliis  cause,  and  the  plaintiff  is  therefore  not  entitled  to 
recover  anything  beyond  nominal  damages.   .   .  . 

The  Court  thereupon  gianted  the  plaintiff's  prayer,  and  the  defend- 
ant's sixth  prayer,  but  rejected  the  defendant's  first  five  prayers.  To 
this  ruling  of  the  court  the  defendant  excepted.  .  .  .  The  verdict  and 
judgment  being  against  him,  he  appealed. 

Jjevin  Gale,  for  the  appellant. 

John  H.  Thomas  and  McIIenrij  Hoirard,  for  the  appellee. 

Alvey,  J.,  delivered  the  opinion  of  the  Court. 

This  was  an  action,  ex  contractu,  instituted  by  the  appellee  against 
the  appellant  to  recover  of  the  latter  damages  resulting  from  its  failure 
to  transmit  and  deliver  a  telegraphic  dispatch  to  certain  stock-brokera 
in  New  York. 

The  dispatch  directed  to  be  transmitted  was  as  follows :  — 

*'  No.  15.  Broker's  Telegram  Like,  4. 

"People's  Telegraph  Lines, 
"No.  23  South  Street,  and  Barnum's  City  Hotel,  Bait. 
"  Send  the  following  message,  without  repeating  it,  subject  to  the 
conditions  indorsed  on  the  back :  — 

"Dated  Baltimore,  March  9,  1865. 
"  To  Dibble  and  Cambloss,  N.  Y. 

"  Sell  fifty  (50)  gold.  Words  3,  cal.  70. 

"  Geo,  Gildersleve.'* 

It  is  alleged  that  this  dispatch  was  an  order  to  the  brokers  in  New 
York  to  sell  for  the  appellee  fifty  thousand  dollars  of  gold,  which  order 
the  brokers  would  have  obeyed,  but  the  appellant  neglected  to  telegraph 
such  dispatch,  whereb}'  the  appellee  was  greatly  damaged  by  reason  of 
the  decline  in  tlie  market  price  of  gold.  The  appellant  pleaded,  not 
indebted  as  alleged  ;  with  an  agreement  that  such  plea  should  be  re- 
ceived, and  that  all  errors  in  pleading  should  be  mutiiall}'  waived,  and 
that  either  party  might  rely  on  any  claim  or  defence  to  which  he  or  it 
would  be  entitled,  if  specially  declared  on  or  pleaded. 

At  the  trial  below,  the  appellee  offered  one  prayer  to  the  court,  which 
was  granted  ;  and  the  appellant  offered  six  prayers,  of  which  the  first 
five  were  rejected,  and  the  sixth  was  granted.  And  it  was  to  the  grant- 
ing of  the  appellee's  pra3'er,  and  the  refusal  of  those  on  the  part  of  the 
appellant,  that  the  first  exception  was  taken. 

On  this  exception,  four  questions  arise:  — 

1.  Whether  the  appellee  can  maintain  this  action,  and  recover  more 
than  nominal  damages  for  the  default  of  the  appellant. 


670         UNITED   STATES   TELEGRAPH   CO.   V.   GILDERSLEVE.       [CHAP.  V. 

2.  Whether  the  contract  for  transmission  of  the  message  was  subject 
to  the  terms  and  conditions  printed  on  tlie  back  of  the  dispatch,  or  to 
other  similar  terms  and  conditions  prescribed  by  the  rules  and  regula- 
tions of  the  appellant's  office. 

3.  To  what  extent,  if  the  contract  be  subject  to  such  terms  and 
conditions,  can  the  appellant  claim  to  be  exonerated  from  liability 
thereunder. 

4.  To  what  measure  of  damage  is  the  appellant  subject,  if  the  con- 
tract be  broken. 

1.  It  appears  that  the  appellee  was  a  broker  in  Baltimore,  and  that 
Dibble  and  Cambloss  were  his  correspondents  and  agents  in  New  York, 
through  whom  he  was  in  the  habit  of  buying  and  selling  stocks  and 
gold  in  the  latter  city;  that  A.  B.  Patterson,  also  a  broker  in  Balti- 
more, was  appellee's  customer,  for  whom  the  appellee  was  in  the  habit 
as  broker  of  buying  and  selling  gold  and  stock  in  New  York,  through 
the  agency  of  Dibble  and  Cambloss  ;  that  by  arrangement  previously- 
made  between  appellee  and  Patterson,  for  the  purpose  of  saving  trouble 
to  them  both,  instead  of  I'atterson  being  required  to  give  orders  to  the 
appellee  for  such  purchases  and  sales,  and  the  appellee  being  required 
to  send  them  to  his  correspondents,  Patterson  was  authorized  to  send 
orders  in  the  appellee's  name,  and  on  his  responsibility-  and  account, 
to  Dibble  and  Cambloss,  for  the  purchase  or  sale  of  stock  or  gold ; 
and  that  by  this  arrangement  the  appellee  was  entitled  to  his  commis- 
sions on  purchases  and  sales  made  in  compliance  with  such  orders,  and 
the  rights  and  liabilities  of  the  appellee  and  Patterson  respectively  in 
reference  to  the  orders  so  sent  were  in  all  respects  the  same  as  if  Pat- 
terson had  given  the  orders  to  the  appellee,  and  the  latter  had  trans- 
mitted or  undertaken  to  transmit  them  to  Dibble  and  Cambloss,  in  his 
own  name,  Patterson  not  being  known  to  and  having  no  connection 
with  Dibble  and  Cambloss,  except  through  the  appellee  ;  that  under 
said  arrangement,  on  the  9th  of  March,  1865,  at  about  3.40  p.  m.,  the 
message  in  question,  addressed  to  Dibble  and  Cambloss,  was  left  b}- 
Patterson's  direction  at  appellant's  office,  in  Baltimore,  and  that  the 
appellant,  by  its  agents,  undertook  to  send  and  deliver  it  to  the  parties 
to  whom  it  was  addressed  ;  that  the  message  was  sent  to  the  office 
without  the  knowledge  or  special  direction  of  the  appellee,  but  that  he 
■was  soon  after  informed  of  it,  and  fully  sanctioned  it.  The  appellee 
also  testified  ihat  he  was  not  interested  in  this  ti-ansaction,  and  had  not 
paid  any  loss  to  Patterson,  and  did  not  consider  himself  liable  to  Pat- 
terson unless  he  recovered  in  this  suit,  in  which  event  anything  that 
was  recovered  was  to  be  paid  over  to  Pattei'son.  It  was  also  proved 
that  appellee  had  on  the  da}'  of  the  date  of  the  message  two  hundred 
thousand  dollars  of  gold  to  his  credit  with  Dibble  and  Cambloss,  and 
of  that  sum,  as  between  appellee  and  Patterson,  ninety-five  thousand 
dollars  belonged  to  the  latter. 

Upon  such  state  of  facts,  the  appellee  was  clearly  the  agent  of  Pat- 
terson, and  as  such  agent,  held  and  controlled  the  gold  of  his  principal. 


SECT.  IV.]       UNITED    STATES   TELEGRAPH   CO.    V.    GILDERSLEVE.         671 

It  was  embraced  in  the  appellee's  account,  and  he  had  credit  for  it  in 
the  books  of  his  correspondent,  and  no  other  person  than  himself  could 
have  withdrawn  it  or  disposed  of  it.  And  apart  from  the  fact  that  he 
had  a  special  property  or  interest  in  the  gold  of  his  principal  thus  at 
his  disposal,  he  was  beneficialh'  interested,  at  the  time  of  the  order 
given,  to  the  extent  of  commissions  on  the  sale.  And  where  an  agent 
is  thus  interested,  as  for  commissions,  or  by  reason  of  special  property 
in  the  subject-matter,  and  the  contract,  in  reference  thereto,  is  made  in 
his  name,  it  is  perfectly  competent  for  him  to  sue  and  maintain  an 
action  in  his  own  name,  as  if  he  were  the  princi[)al.  This  is  so  in  the 
case  of  a  factor,  or  a  broker,  or  a  warehouseman,  or  carrier  or  auc- 
tioneer, a  policy  broker  whose  name  is  on  the  policy-,  or  the  captain  of 
a  ship  for  freight.  So  where  a  contract  is  in  terms,  as  in  this  case, 
made  with  an  agent  personally,  he  may  sue  thereon  ;  and  if  an  agent, 
in  his  own  name,  carr}'  on  a  business  for  his  principal,  and  appear  to 
be  the  proprietor,  and  sell  goods  in  the  trade  as  such  apparent  owner, 
he  can  sustain  an  action  in  his  own  name  for  the  price.  1  Chit.  PI.  8 ; 
Joseph  y.  Knox,  3  Camp.  320  ;  Gardiner  r.  Davis,  2  Car.  &  P.  49  ; 
Dancer  c.  Hastings,  4  Bing.  2.  And  where  A.,  for  his  own  account 
and  risk,  carried  on  trade  in  the  name  of  B.,  it  was  held  that  an  action 
for  goods  sold  in  the  course  of  such  trade  was  properl}-  brought  in  the 
name  of  B.  Alsop  v.  Caines,  10  Johns.  396.  And  so  again,  where 
goods  are  consigned  by  A.  to  B.,  the  former,  in  contemplation  of  law,  is 
the  agent  of  the  latter,  for  the  purpose  of  contracting  for  the  carriage  ; 
and  where  a  bill  of  lading  stated  that  the  goods  were  shipped,  and  their 
freight  paid  by  the  consignor,  it  was  held  to  establish  a  privity  of  con- 
tract between  the  consignor  and  shipowner,  which  would  entitle  the 
former  to  recover  against  the  latter  for  non-deliver}'  of  the  goods,  the 
damages  so  recovered  being  held  by  the  plaintiff  in  trust  for  the  con- 
signee. Joseph  V.  Knox,  3  Camp.  320;  Broom  on  Parties,  49.  And 
if,  in  the  instances  mentioned,  the  agent  can  sue  and  recover  the  full 
measure  of  damages,  we  can  see  no  reason  wh}-  the  appellee,  looking 
to  his  relation  to  this  transaction,  may  not  recover  the  full  amount  of 
damages  resulting  from  a  breach  of  the  contract  with  the  appellant. 
He,  of  course,  sues  and  recovers  as  trustee  for  his  principal.  The 
court  below  was  therefore  right  in  rejecting  the  appellant's  third  and 
fourth  prayers,  which  raised  the  question  of  the  right  of  the  appellee  to 
recover  more  than  nominal  damages.  .  .  . 

Differing  with  the  court  below  in  regard  to  the  appellee's  pra3'er  and 
the  first  and  second  prayers  of  the  appellant,  we  must  reverse  its 
judgment.  Judgment  reversed  and  procedendo  awarded. 


672  LUDWIG    V.    GILLESPIE.  [CHAP.  V. 


LUDWIG,  Respondent,  v.  GILLESPIE,  Appellant. 

Court  of  Appeals  of  New  York.     1887. 

[105  N.  Y.  653.1] 

The  following  is  the  mem.  of  opinion  herein  :  — 

"  The  action  was  to  recover  $22,2yL60,  as  the  price  of  certain 
bitumen  theretofore  sold  and  delivered  by  the  plaintiff  to  the  defendant. 
Besides  a  general  denial,  the  answer  set  up  that  the  bitumen  was  sold 
and  delivered  by  the  plaintiff,  not  on  his  own  account,  "  but  as  known 
agent  for  the  firm  of  Aries,  Uufour,  &  Co.,  his  disclosed  principals 
under  a  special  contract  in  writing,  and  without  authority  to  receive 
the  proceeds  of  such  sales,"  and  upon  this  defence  the  defendant, 
upon  trial  of  the  issues  before  a  referee,  asked  a  dismissal  of  the 
complaint.  His  request  was  denied  and  judgment  went  against  him, 
both  upon  the  report  of  the  referee  and  at  the  General  Term. 

"  The  principal  point  made  in  his  behalf  upon  this  appeal  is  that 
the  action  was  improperly  brought  b}'  the  plaintiff  in  his  own  name. 
It  appeared  that  the  contract  was  negotiated  by  one  Clarke,  a  broker, 
who  in  that  character  made  and  signed  a  writing  which,  so  far  as  is 
material,  was  in  these  words  :  '  New  York,  April  25,  1882.  —  Sold  for 
account  of  Mr.  E.  Ludwig,  Agt.,  to  Mr.  L.  C.  Gillespie,  four  thousand 
(4,000)  cases  Syrian  bitumen,'  etc.  A  time  for  delivery  was  speci- 
fied and  the  price  declared  '  payable  thirty  da3s  from  each  delivery.' 
This  contract  was  assented  to  by  both  parties,  and  the  referee  finds 
that  '  there  was  no  proof  that  the  name  of  Aries,  Dufour,  &  Co.  was 
disclosed  or  mentioned  as  the  principal  of  the  plaintiff  in  the  negotia- 
tions for  the  sale,  nor  at  any  time  before  this  contract  had  been  exe- 
cuted and  delivered  ;  but  he  also  finds  that  at  the  time  of  making  it 
the  '  plaintiff  was  in  fact  the  agent  of  Aries,  Dufour,  &  Co.,  of 
Marseilles,  France,  for  the  sale  of  imported  goods,'  and  that  the 
bitumen  was  sold  and  delivered  by  him,  not  on  his  own  account,  but 
for  and  on  account  of  Aries,  Dufour,  &  Co.,  and  as  their  agent. 

"  The  evidence  sustains  these  findings,  and  the  case  is  thus  brought 
within  the  well  established  rule  of  law  that  when  a  contract  not  under 
seal  is  made  with  an  agent  in  his  own  name  for  an  undisclosed  princi- 
pal, whether  he  describes  himself  to  be  an  agent  or  not,  either  the 
agent  or  principal  may  sue  upon  it.  Considerant  v.  Brisbane,  22 
N.  Y.  389;  Schaefer  v.  Henkel,   75  id.  378. 

"  The  defendant  has  received  the  thing  bargained  for,  and  a  recovery 
by  the  plaintiff  and  payment  of  the  judgment  will  be  a  complete  pro- 
tection to  the  defendant  against  any  claim  of  the  principal  arising  upon 
the  contract. 

"  The  other  questions  presented  by  the  appellant  relate  to  rulings  by 

1  Among  "  Memoranda  of  causes  not  reported  in  full."  —  Ed. 


SECT,  v.]  RABONE    V.   WILLIAMS.  673 

the  referee  upon  offers  of  evidence,  and  were  properly  held  b}'  the 
Generiil  Term  to  be  without  merit. 

"  Tlie  judgment  should  be  affirmed." 

IVilliam  midreth  Field  for  appellant. 

M.  W.  Divine  for  respondent. 

Danforth,  J.,  reads  for  affirmance.     All  concur. 

Judgment  affirmed. 


SECTION  V. 

Defences. 
{A)   Ih  an  Action  brought  by  the  Principal  against  the  Third  Party. 

RABONE,   JuN.,   V.   WILLIAMS. 
Nisi  Prids.     1785. 

[7  T.  R.  360,  n.  (a).] 

Action  for  the  value  of  goods  sold  to  the  defendant  b}^  means  of  the 
house  of  Rabone,  Sen.,  and  Co.  at  Exeter,  factors  to  the  plaintiff. 
The  defendant,  the  vendee  of  the  goods,  set  off  a  debt  due  to  him  from 
Rabone  and  Co.,  the  factors,  upon  another  account,  alleging  that  the 
plaintiff  had  not  appeared  at  all  in  the  transaction,  and  that  credit  had 
been  given  by  Rabone  and  Co.,  the  factors,  and  not  by  the  plaintiff. 

Lord  Mansfield,  C.  J.  Where  a  factor,  dealing  for  a  principal  but 
concealing  that  principal,  delivers  goods  in  his  own  name,  the  person 
contracting  with  him  has  a  right  to  consider  him  to  all  intents  and  pur- 
poses as  the  principal ;  and  though  the  real  principal  may  appear  and 
bring  an  action  upon  that  contract  against  the  purchaser  of  the  goods, 
3'et  that  purchaser  maj'^  set  off  any  claim  he  ma}'  have  against  the  fac- 
tor in  answer  to  the  demand  of  the  principal.  This  has  been  long 
settled.^ 

Upon  this   opinion  the  rest^  being  a  mere  matter  of  account, 
icas  referred. 

1  In  Bayley  v.  Morley,  London  Sittings  after  Mich.  1788,  Lord  Kbnyon  recognized 
the  law  of  this  case.  —  Rep. 


674  GEOEGE  V.   CLAGETT.  [CHAP.  V. 


GEORGE   V.   CLAGETT  and  another. 

King's  Bench.     1797. 

[7  T.  R.  359.] 

On  the  trial  of  this  action,  which  was  assumpsit  for  goods  sold  and 
delivered  to  the  amount  of  £142  Is.  9c?.,  before  Lord  Kenyon  at  the 
Guildhall  Sittings,  the  case  appeared  to  be  this  :  The  plaintiff  a  clothier 
at  Frome  emplo3-ed  Messrs.  Rich  and  Heapy  in  London,  Black  well- 
Hall  factors,  as  his  factors  under  a  commission  del  credere,  who  besides 
acting  as  factors  bought  and  sold  great  quantities  of  woollen  cloths  on 
their  own  account,  all  their  business  being  carried  on  at  one  warehouse. 
The  factors  sold  at  twelve  months'  credit,  and  were  allowed  two  and  a 
half  per  cent.  On  the  30th  of  September,  1795,  Delvalle,  a  tobacco 
broker,  and  who  had  been  in  habits  of  dealing  with  the  defendants, 
bought  several  parcels  of  tobacco  of  them,  and  gave  them  in  payment 
a  bill  of  exchange  for  £1,198  16s.  drawn  by  one  Fisher  on  Rich  and 
Heap3',  on  the  24th  of  September,  1795,  payable  two  months  after  date 
to  J.  Stafford  who  indorsed  to  Delvalle,  who  indorsed  it  over  to  the 
defendants,  it  having  been  previously  accepted  by  Rich  and  Heapj-. 
On  the  12th  of  October,  1795,  the  defendants  bought  a  quantity  of 
woollen  cloths  for  exportation  of  Rich  and  Heap}',  amounting  to  £1,237 
18s.  Zd.  at  twelve  months'  credit ;  the  goods  were  taken  out  of  one  gen- 
eral mass  in  Rich  and  Heapy's  warehouse  ;  Rich  and  Heapy  made  out 
a  bill  of  parcels  for  the  whole  in  their  own  names,  and  the  defendants 
did  not  know  that  any  part  of  the  goods  belonged  to  the  plaintiff. 
Early  in  November,  1795,  Rich  and  Heap}'  became  bankrupts;  and 
afterwards,  on  the  20th  of  the  same  month,  the  plaintiff  gave  the 
defendants  notice  not  to  pay  Rich  and  Heapy  for  certain  cloths  speci- 
fied, part  of  the  above,  amounting  to  £142  Is.  2d.^  the}-  having  been 
his  property,  and  having  been  sold  on  his  account  by  Rich  and  Heapy 
on  commission.  The  question  was  whether  the  defendants  were  or 
were  not  entitled  to  set  off  their  demand  against  Rich  and  Heapy  on 
the  bill  of  exchange,  on  the  ground  that  the  defendants  dealt  with  them 
as  principals  ;  Lord  Kenyon  was  of  opinion  that  they  were,  as  well  on 
principle  as  on  the  authority  of  Rabone  v.  Williams  ;  and  a  verdict  was 
accordingly  found  for  the  defendants. 

A  rule  having  been  obtained,  calling  on  the  defendants  to  show 
cause  why  the  verdict  should  not  be  set  aside,  and  a  new  trial  had, 
on  the  authority  of  the  case  of  Estcott  v.  Milward,  Co.  Bank  Laws, 
236. 

Gihhs  and  Giles  were  now  to  have  shown  cause  against  that  rule. 

Erskine  and  Walton  were  called  upon  to  support  it. 


SECT,  v.]  HORNBY  V.   LACY.  675 

The  Court  were  clearly  of  opinion  that  the  directions  given  by  the 
learned  judge  on  the  trial  of  tliis  cause  were  right ;  and  that  this  case 
was  not  distinguishable  from  that  of  Rabone  v.  Williams.  Tiierefore 
they  Disc/iarged  the  rule} 


HORNBY   AND   OTHERS   V.   LACY. 

King's  Bench.     1817, 
[6  M.  Si-  S.  166.] 

Assumpsit  for  goods  sold  and  delivered,  money  lent,  money  paid, 
money  had  and  received,  and  on  an  account  stated.  Plea,  general 
issue.  On  the  trial  at  the  London  sittings  after  Trinity  term,  1814,  a 
verdict  was  found  for  the  plaintiffs  for  £132  146'.  Gt/.,  subject  to  the 
opinion  of  the  Court  on  the  following  case  :  which  it  was  agreed  should 
be  turned  into  a  special  verdict  if  the  Court  should  think  i)roper  so  to 
direct. 

The  action  is  brought  to  recover  the  price  of  two  parcels  of  linens 
sold  to  the  defendant,  who  resides  and  carries  on  business  in  London, 
under  the  firm  of  Hamle3'  &  Lac}',  by  Messrs.  Duckham  &  Lankester 
of  London.  The  goods  belonged  to  the  plaintiffs,  who  are  linen  manu- 
facturers at  Bentham,  Yorkshire,  and  were,  with  others,  consigned  by 
them  to  Duckham  &  Lankester,  as  their  factors,  for  sale. 

The  first  parcel  was  sold  on  the  2yth  of  April,  1810,  for  £26  18s.,  at 
four  months'  credit  from  the  1st  of  June,  1810,  and  the  last  on  the 
25th  of  May,  1810,  for  £105  16s.  6(/.,  at  four  months'  credit  from  the 
1st  of  July,  1810.  The  plaintiff's  were  in  the  habit  of  sending  goods 
to  Duckham  &  Lankester,  to  dispose  of  as  their  factors  and  paid 
them  a  del  credere  commission.  Duckham  &,  Lankester  transmitted 
to  the  plaintiffs  monthl}'  accounts  of  the  sales,  made  up  from  the 
24th  of  one  month  to  the  24th  of  the  following  month,  but  in 
these  accounts  the  names  of  the  purchasers  were  not  stated.  The 
general  course  of  dealing  between  Duckham  &,  Lankester  and  the 
defendant  was  for  them  to  draw  on  him,  for  the  goods  purchased 
by  him,  at  the  end  of  two  months  from  the  time  the  credit  began 
to  run,  bills  at  two  months  ;  that  between  Duckham  &  Lankester  and 
the  plaintiffs  was  for  the  latter  to  draw  upon  Duckham  &  Lankester 
for  the  amount  of  such  sales,  at  the  expiration  of  two  months  from 
the  first  day  of  the  month  succeeding  that  for  which  the  account  was 
rendered,  bills  at  two  months  ;  so  that  it  was  in  regular  course  for  the 
plaintiffs  to  draw,  and  they  did  draw  on  Duckham  &  Lankester  on  the 
1st  of  August  for  the  goods  sold  to  the  defendant  on  the  25th  of  April, 
and  on  the  1st  of  September  for  those  sold  on  the  25th  of  May.    Duck- 

1  Ace. :  Montagu  v.  Forvrood,  [1893]  2  Q.  B.  350  (C.  A.). 
See  Lime  Rock  Bank  v.  Plimpton,  17  Pick.  159  (1835).  — Ed. 


676  HORNBY   V.   LACY.  [CHAP.  V. 

ham  &  Lankester  dealt  as  factors  for  man}-  other  persons  besides  the 
plaiutiffs,  and  had  been  for  some  time  accustomed  to  sell  goods  to  the 
defendant ;  and  the}-  did  not  communicate  to  him  the  names  of  the  per- 
sons to  whom  the  goods  belonged,  but  the  defendant  knew  they  were 
onh"  factors.  The  invoices  were  entitled,  '"  Messrs.  Hamlc}',  Lacey, 
and  Co.  bought  of  Duckham,  Lankester  &  Co.,  cotton  and  linen  fac- 
tors ; "  and  in  them  it  was  stated  that  no  short  measure  or  damages 
should  be  allowed  unless  agreed  to  within  three  days  after  the  sale. 
The  invoices  of  the  two  parcels  in  question  were  so  entitled,  and  Duck- 
ham  &  Lankester  also  on  one  occasion  acted  as  factors  to  the  defend- 
ant. On  the  11th  of  September,  1810,  before  the  credit  at  which 
either  of  the  two  parcels  of  goods  was  sold  had  expired,  and  before  the 
bills  which  had  been  drawn  b}'  the  plaintiffs  according  to  the  usual 
course  became  payable,  Duckham  &  Lankester  stopped  pa3'ment,  and 
\n  January  following  became  bankrupt.  The  plaintiffs  not  having  been 
paid  by  Duckham  &  Lankester  for  these  goods,  on  the  23d  of  Novem- 
ber, 1810,  gave  notice  to  the  defendant  that  the  goods  sold  in  May 
were  theirs,  and  required  him  to  pay  them  and  not  Duckham  &  Lank- 
ester for  them.  Duckham  &  Lankester,  besides  selling  goods  to  the 
defendant  as  above  stated,  had  a  bill-account  with  him  for  their  mutual 
accommodation,  and  kept  two  separate  accounts,  the  one  of  the  goods, 
the  other  of  the  bill  transactions.  The  defendant  kept  only  one 
account  of  the  goods  and  bills.  At  the  time  of  Duckham  &  Lankester's 
stopping  payment,  there  was  a  balance  due  to  them  from  the  defend- 
ant, as  appeared  upon  Duckham  &  Lankester's  books,  of  £1,945  lis. 
5c?.  on  the  goods  account,  and  at  that  time  there  also  appeared  a  balance 
in  their  favor  on  the  bill-account ;  but  in  consequence  of  the  defendant 
having  afterwards  taken  up  some  returned  bills,  Duckham  &  Lankester 
were  debtors  upon  the  two  accounts  together  at  the  time  of  the  action 
brought  in  the  sum  of  £8  5s.  The  plaintiffs  have  not  been  paid  for 
the  goods,  nor  has  the  defendant  paid  Duckham  &  Lankester  form- 
ally for  them. 

The  question  for  the  opinion  of  the  Court  is,  Whether  the  plaintiffs 
are  entitled  to  recover?  If  they  are,  the  verdict  to  stand;  if  not,  a 
nonsuit  to  be  entered. 

Gaselee,  for  the  plaintiffs. 

Littledale,  contra. 

Lord  Ellenborough,  C.  J.  I  own  I  cannot  think  that  a  commission 
del  credere  is  to  have  an  effect  attributed  to  it  beyond  that  which  regards 
the  benefit  of  the  principal  who  gives  the  commission.  The  commission 
imports,  that  if  the  vendee  does  not  pay,  the  factor  will :  it  is  a  guar- 
antee from  the  factor  to  the  principal  against  any  mischief  to  arise  from 
the  vendee's  insolvenc}-.  But  it  varies  not  an  iota  the  rights  subsisting 
between  vendor  and  vendee.  A  somewhat  different  doctrine  seems  to 
have  originated  with  Grove  v.  Dubois.  A  kind  of  magic  effect  was 
there  given  to  a  commission  del  credere,  changing  the  relative  position 
of  the  owner  and  buyer ;   and  what  is  reported  to  have   fallen    from 


SECT.  V.J  HORNBY   V.   LACY.  677 

Chambre,  J.,  in  a  later  case,  is  referable  to  the  same  authority';  but 
this  was  set  right,  as  I  tliink,  in  the  judgment  in  Morris  v.  Cleasby, 
M.  &  S.  574,  which  was  given  after  much  consideration,  and,  I  ma}' 
add,  with  the  concurrence  of  two  of  our  learned  brethren  on  this  bench, 
now,  unhappily,  no  more.  The  ulterior  effect  given  to  this  commission 
in  the  above  cases  has  created  the  confusion.  As  to  the  argument 
founded  on  the  drawing  of  bills,  if  it  had  amounted  to  payment,  or  to  a 
case  of  mutual  credit,  George  o.  Clagget,  7  T.  R.  Soli,  the  argument 
would  have  been  good.  Tliis  was  \evy  recently  considered  by  us  ia 
Graham  v.  Dyster,  6  M.  &  S.  1. 

Bayley,  J.  It  is  important  that  the  relative  position  of  principal 
and  factor  should  be  understood  and  kept  distinct.  The  factor  is 
agent,  the  parties  to  be  considered  as  principals  are  the  owner  and 
buyer.  The  owner  has  a  right  to  look  for  payment  to  the  bujer,  unless 
by  some  act  in  which  he  has  concurred  he  has  deprived  himself  of  that 
right.  When  he  gives  a  del  credere  commission,  he  means  to  obtain  an 
additional  security  ;  that  is,  the  security  of  the  factor  ;  and  it  would  be 
extremely  hard  if,  instead  of  having  an  additional  security,  he  should 
find  that  he  had  onl}'  substituted  one  for  another,  tliat  he  had  shifted 
the  responsibility  from  the  buyer  to  the  factor.  In  Morris  v.  Cleasby 
the  effect  of  such  a  commission  was  much  considered,  and  it  was  held 
that  it  could  not  have  any  such  effect.  If  tlie  vendee  pa}-  the  factor  for 
the  purchase  in  due  course,  and  according  to  the  contract,  he  will  be 
protected  ;  but  if  otherwise,  he  pavs  on  the  credit  of  the  factor. 

Abbott,  J.  A  del  credere  commission  is  in  the  nature  of  a  private 
agreement  between  factor  and  principal,  and,  therefore,  cannot  vary  th« 
rights  of  third  parties.  The  present  is  the  case  of  a  sale  by  a  factor, 
the  purchaser  knowing  him  to  have  been  such.  Acceptances  given,  oi 
payment  made  at  the  time,  according  to  the  usual  course  of  trade, 
would  have  discharged  the  purchaser.  No  such  paN'ment  having  been 
made,  the  principal  had  a  right  to  step  in  and  require  payment  to  him- 
self. The  circumstance  of  there  being  a  bill-account  between  the 
parties  does  not  varj'  these  rights,  these  being  founded  on  the  del 
credere  commission. 

HoLROYT),  J.  I  am  of  the  same  opinion  with  respect  to  the  effect  of 
a  del  credere  commission  and  the  sale  transaction.  "Where  the  party 
selling  is  known  to  be  a  factor,  if  the  vendee  pa}'  the  price  to  him, 
according  to  the  usual  course  of  his  authority  to  receive,  this  will  dis-- 
charge  him  ;  but  it  is  not  by  a  course  of  drawing  bills  between  tha 
principal  and  factor,  as  stated  in  the  case,  that  he  can  be  discharged. 

Jndgmerit  for  the  plaintiff} 

1  See  Blackburn  v.  Scholes,  2  Camp.  341  (1809).  — Ed. 


678  BOKRIES   V.    IMPERIAL   OTTOMAN    BANK.  [CHAP.  V. 


BORRIES  AKD  ANOTHER  V.   THE  IMPERIAL  OTTOMAN  BANK. 

Common  Pleas.     1873. 

[L.  R.  9  C.  P.  38.] 

The  second  count  was  for  goods  sold  and  delivered,  money  received 
by  the  defendants  for  the  use  of  the  plaintiffs,  and  interest. 

Fifth  plea,  as  to  so  uuich  of  the  second  count  as  related  to  mone}" 
payable  for  goods  sold  and  delivered  by  the  plaintiffs  to  the  defendants, 
that  the  goods  were  sold  and  delivered  to  the  defendants  by  certain 
persons  known  and  carrying  on  business  as  Scheitlin  &  Co.,  then 
being  the  agents  of  the  plaintiffs  in  that  behalf  and  intrusted  by  the 
plaintiffs  with  the  possession  of  the  goods  as  apparent  owners  thereof; 
that  Scheitlin  &  Co.  sold  and  delivered  the  goods  in  their  own  name 
and  as  their  own  goods,  with  the  consent  of  the  plaintiffs  ;  that,  at  the 
time  of  the  sale  and  delivery  of  the  goods,  the  defendants  believed 
Scheitlin  &  Co.  to  be  the  owners  of  the  goods,  and  did  not  know  that 
the  plaintiffs  were  the  owners  of  the  goods  or  of  any  of  them,  or  were 
interested  therein  or  in  the  said  sale  thereof,  or  that  Scheitlin  &  Co. 
were  agents  in  that  behalf;  that,  before  the  defendants  knew  that  the 
plaintiffs  were  the  owners  of  the  goods  or  any  of  them,  or  interested 
therein,  or  that  Scheitlin  &  Co.  were  agents  in  the  sale  thereof, 
Scheitlin  &  Co.  became,  and  at  the  commencement  of  the  suit  were 
and  still  remained  indebted  to  the  defendants  in  an  amount  equal  to 
the  plaintiffs'  claim,  as  the  drawers  of  certain  dishonored  bills  of 
exchange  which  had  been  refused  acceptance  by  the  drawees,  and  for 
goods  bargained  and  sold  by  the  defendants  to  Scheitlin  &  Co.,  and 
for  work  done,  &c.,  &c., — which  amount  the  defendants  were  willing 
to  set  off  against  the  plaintiffs'  claim. 

Second  replication  to  the  fifth  plea,  —  that,  before  and  at  the  time 
when  the  goods  were  so  sold  and  delivered  to  the  defendants  as  in  the 
plea  mentioned  by  the  persons  known  as  Scheitlin  &  Co.  to  the  defen- 
dants, they  the  defendants  had  the  means  of  knowing  that  Scheitlin  & 
Co.  were  merely  apparent  owners  of  the  goods,  and  that  the  same  were 
intrusted  to  Scheitlin  &  Co.  as  agents  of  and  for  the  plaintiffs,  and  that 
Scheitlin  &  Co.  were  agents  of  and  for  the  plaintiffs,  and  as  agents  of 
and  for  the  plaintiffs  sold  and  delivered  the  goods  to  the  defendants. 

Third  replication  to  the  fifth  plea,  —  that,  before  and  at  the  time 
when  the  goods  were  so  sold  and  delivered  to  the  defendants  as  in 
the  plea  mentioned  by  Scheitlin  &  Co.,  they  the  defendants  had  the 
means  of  knowing  that  Scheitlin  &  Co.  were  merely  apparent  owners 
of  the  goods,  and  that  the  same  were  intrusted  to  Scheitlin  &  Co.  as 
agents,  and  that  Scheitlin  &  Co.  were  agents  and  as  agents  sold  and 
delivered  the  goods  to  the  defendants. 

Demurrer  to  the  fifth  plea,  on  the  ground  that  it  did  not  allege  that 


SECT,  v.]  BOKRIES   V.    IMPERIAL    OTTOMAX    BANK.  679 

the  defendants  had  not  the  means  of  knowledge  that  Sehcitlln  &  Co. 
were  acting  in  the  sale  as  agents.     Joinder. 

Demnners  to  the  second  and  third  replications  to  the  fifth  plea, 
on  the  ground  that,  inasmuch  as  the  defendants  acted  in  the  bona  fide 
belief  that  Sclieitlin  &  Co.  were  the  owners  of  the  goods,  and  did  not 
know  that  ScheitHn  &  Co.  were  acting  in  the  sale  as  agents,  it  was 
immaterial  whether  they  had  such  means  of  knowledge  as  alleged. 
Joinder. 

Uda//,  for  the  plaintiffs. 

Jlolf,  contr<(. 

CoLEKiDGE,  C.  J.  I  am  of  opinion  that  our  judgment  should  be 
for  the  defendants.^  ...  It  was  in  the  first  place  contended  by  Mr. 
Udall  that  the  plea  should  have  averred,  not  only  that  the  defendants 
did  not  know  that  the  plaintiffs  were  the  owners  of  the  goods,  and 
believed  Scheitlin  &  Co.  to  be  the  owners,  but  also  that  the  defend- 
ants had  not  the  means  of  knowledge  that  Scheitlin  &  Co.  were  not 
owners,  but  were  acting  in  tlie  sale  as  agents.  It  appears  to  me,  how- 
ever, that  the  plea  states  all  that  is  material  to  raise  the  defence.  It 
states  that  the  plaintiffs  intrusted  Scheitlin  &  Co.  with  the  goods  foi 
sale,  that  they  sold  them,  and  that  the  defendants  bought  them  believ- 
ing Scheitlin  &  Co.  to  be  the  owners  of  them.  The  essence  of  the 
defence  is,  the  real  state  of  the  defendants'  minds  when  they  bought 
the  goods  of  Scheitlin  &  Co.  They  assert  that  it  was  this,  that  thev 
believed  the  goods  to  be  the  goods  of  Scheitlin  &,  Co.,  and  did  not  know 
or  believe  that  the  plaintiffs  were  the  owners  of  or  interested  in  them. 
That  brings  the  case  distinctly  within  the  rule  in  George  v.  Clagett, 
7  T.  R.  359,  and  that  is  the  form  of  plea  which  has  been  commonly 
in  use  to  raise  a  defence  of  this  kind.  I  observe  that  in  two  cases,  — 
Purchell  v.  Salter,  1  Q.  B.  197,  and  Semenza  >\  Brinsley,  18  C.  B.  N.  s. 
467,  —  where  the  plea  contained  an  averment  that  the  defendant  had 
no  means  of  knowledge,  no  notice  is  taken  of  that  allegation  in  the 
judgment.  If  it  be  necessary  to  aver  that  the  defendants  had  not 
notice  that  the  plaintiffs  were  the  owners  of  the  goods,  I  think  that 
is  substantially  averred  in  this  plea  b}'  the  statement  that  Scheitlin 
&  Co.,  with  the  consent  of  the  plaintiffs,  sold  the  goods  as  their  own, 
and  that  the  defendants  believed  them  to  be  the  owners  of  them,  and 
did  not  know  that  the  plaintiffs  were  the  owners.  The  plea  being  good, 
it  follows  that  the  replication,  which  mereh'  states  that  at  the  time  of 
the  sale  the  defendants  had  the  means  of  knowing  that  Scheitlin  &  Co. 
were  only  apparent  owners  and  were  intrusted  with  the  goods  as  agents 
of  the  plaintiflTs,  is  no  answer  to  the  plea,  —  being  a  mere  statement  of 
a  fact  which  was  immaterial. 

Keating,  J.  I  am  of  the  same  opinion.  ...  I  think  it  was  quite 
unnecessary  to  go  on  and  aver  that  the  defendants  had  not  notice  or 
means  of  knowledge  ;  for,  if  they  had  means  of  knowledge,  that  might 

1  The  passages  omitted  from  the  several  opinions  contained  restatements  of  the 
case.  —  Ed. 


680  BOERIES   V.   IMPERIAL    OTTOMAN    BANK.  [CHAP.  V. 

be  given  in  evidence  under  a  traverse  of  the  allegation  of  want  of 
knowledge.  For  these  reasons,  I  entirely  agree  with  ni}-  Lord  that 
the  plea  is  good,  and  that  the  replications  afford  no   answer  to  it. 

Brett,  J.  .  .  .  Assuming  the  other  averments  in  the  plea  to  be  true, 
such  an  averment  as  it  is  contended  ought  to  appear  in  it  would,  as  it 
seems  to  me,  throw  upon  the  purchasers  of  goods  a  burthen  which  the 
mercantile  law  never  intended  should  be  cast  upon  them.  "  Means  of 
knowledge  "  is  so  large  and  comprehensive  a  term  that  the  defendants 
might  be  bound  to  prove  that  they  could  not  by  inquiry  have  ascer- 
tained that  the  plaintiffs  were  the  owners  of  the  goods,  and  that 
Scheitlin  &  Co.  were  acting  only  as  agents  in  the  sale  of  them.  That 
would  be  manifestly  unjust,  seeing  that  the  plaintiffs,  by  intrusting 
Scheitlin  &  Co.  with  the  possession  of  tlie  goods  for  sale,  gave  them 
the  opportunity  of  representing  themselves  to  be  the  real  owners  of 
them.  It  was  further  said  that  the  plea  is  bad  for  not  averring  that  the 
defendants  had  not  notice.  It  is  unnecessary  to  decide  that.  If  it 
were,  I  should  be  prepared  to  hold  that  the  negation  of  notice  is 
involved  in  the  affirmative  allegation  that  Scheitlin  &  Co.  sold  the 
goods  in  their  own  names  and  as  their  own  goods,  and  that  the  defend- 
ants bought  them  believing  Scheitlin  &  Co.  to  be  the  owners  and  not 
knowing  the  plaintiffs  to  be  the  owners.  But,  though  it  is  not  neces- 
sary, I  should  incline  to  go  further  and  to  say,  that,  if  the  replication 
bad  expressly  averred  that  the  defendants  had  notice  at  the  time  of  the 
sale  that  Scheitlin  &  Co.  were  acting  merely  as  agents,  if  the  allega- 
tions in  the  plea  were  true  that  averment  would  be  immaterial.  1  take 
the  rule  of  law  to  have  been  properly  laid  down  by  Willes,  J.,  in 
Semenza  v.  Brinsley,  where,  treating  of  the  facts  necessary  to  be 
alleged  in  a  plea  of  this  sort,  he  says,  referring  to  the  rule  in  George  v, 
Clao-ett:  "In  order  to  make  a  valid  defence  within  the  rule  above 
stated,  it  is  obvious  that  the  plea  should  show  that  the  contract  was 
made  by  a  person  whom  the  plaintiff  had  intrusted  with  the  possession 
of  the  goods,  that  that  person  sold  them  as  his  own  goods  in  his  own 
name  as  principal,  with  the  authority  of  the  plaintiff,  that  the  defendant 
dealt  witli  him  as  and  believed  him  to  be  the  principal  in  the  transac- 
tion, and  that  before  the  defendant  was  undeceived  in  that  respect  the 
set-off  accrued."  In  that  statement  of  the  law  by  that  very  learned 
judge,  neither  of  the  allegations  the  absence  of  which  is  relied  on 
here  is  alluded  to.  Mr.  Udall's  reference  to  the  precedent  in  Chitty, 
jun.  3rd  ed.  p.  514,  shows  that  the  extreme  caution  of  the  learned 
editors  induced  thein  to  put  in  something  which  was  not  absolutely 
necessary  to  the  validity  of  the  plea.  I  am  of  opinion  that  the  plea 
is  good,  and  the  replications  bad. 

Denman,  J.  I  am  of  the  same  opinion.  I  think  the  plea  contains 
all  that  is  essential  to  constitute  a  defence.  Means  of  knowledge  may 
be  material  evidence  on  the  trial.  So,  the  allegation  of  notice  would  be 
merely  stating  matter  of  evidence. 

Judgment  for  the  defendants. 


SECT,  v.]  ROOSEVELT   V.   DOHERTY.  681 


R008P:VELT    v.   DOHERTY. 

Supreme  Judicial  Coukt  of   Massachusetts.     1880. 

[129  Mass.  301.) 

Contract  to  recover  the  price  of  plate  glass  sold  and  delivered  to 
the  defendant.  Trial  in  the  Superior  Court,  before  Pitman,  J.,  who 
directed  a  verdict  for  the  defendant,  and  reported  the  case  for  the 
determination  of  this  court.  If  the  plaintiff  could  maintain  the  action, 
a  new  trial  was  to  be  ordered  ;  otherwise,  judgment  on  the  verdict. 
The  facts  appear  in  the  opinion. 

H.  Grai/  tt'  H.  W.  Swift,  for  the  plaintiff. 

F.  S.  Ilesseltine,  for  the  defendant. 

Endicott,  J,  It  appears  from  the  report  that  the  firm  of  Hills, 
Turner,  &,  Harmon  were  importers  of  and  dealers  in  window  and  plate 
glass,  and  they  made  a  contract  in  writing  witli  the  defendant  to 
furnish  the  glass  for  a  building  which  he  was  about  to  erect  in  Boston, 
according  to  the  specifications  furnished  by  the  architect,  for  the  gross 
sum  of  $688  in  cash.  The  contract  describes  the  quality  and  diraen* 
sions  of  the  glass  to  be  furnished,  and  the  number  of  lights  of  each 
qualit}-.  Hills,  Turner,  &,  Harmon  were  the  selling  agents  for  the 
plaintiff,  in  Boston,  for  plate  glass,  and  the  hrst  four  items  of  glass  to 
be  furnished,  as  specified  in  the  contract,  were  plate  glass,  and  be- 
longed to  the  plaintiff,  having  been  consigned  to  the  firm  for  sale. 
The  remainder  of  the  glass  was  furnished  by  the  firm.  The  defendant 
had  no  knowledge  that  any  of  the  glass  belonged  to  the  plaintiff. 

We  can  have  no  doubt  that,  as  between  the  firm  and  the  defendant, 
this  was  an  entire  contract ;  it  was  to  furnish  the  glass  for  the  building 
for  a  specified  sum  of  mone}'.  There  was  no  price  named  in  tLie  con- 
tract for  the  several  kinds  and  qualities  of  glass  to  be  furnished  ;  and  it 
is  immaterial  that  the  quality  of  the  several  kinds  of  glass  to  be  fur- 
nished was  specified.  The  consideration  being  entire,  there  could  be 
no  distinct  apportionment  of  the  consideration  between  the  different 
qualities  of  glass  furnished.  There  were  not  two  contracts,  one  for 
plate  glass,  and  the  other  for  glass  of  different  qualities,  but  one  con- 
tract for  all  the  glass  thus  furnished  to  the  building.  Clark  v.  Baker, 
5  Met.  452.  The  firm  could  not  recover  for  any  portion  of  the  glass, 
but  only  on  the  entire  contract,  by  which  all  the  glass  passed  to  the 
defendant.  And  the  question  to  be  considered  here  is,  whether  the 
plaintiff,  as  an  undisclosed  principal,  can  maintain  an  action  against 
the  defendant  to  recover  the  value  of  the  plate  glass  belonging  to  him, 
included  in  the  entire  contract.     We  are  of  opinion  that  he  cannot. 

It  is  too  well  settled  to  require  the  citation  of  many  authorities,  that 
an  undisclosed  principal,  whose  goods  are  sold  by  a  factor,  may  sue 
the  purchaser  for  the  price  ;  and  where  the  contract  of  sale  is  in  writ- 
ing, and  made  in  the  name  of  the  factor,  he  may  bring  an  action  upon 


682  ROOSEVELT   V.   DOHERTY.  [CHAP.  V. 

it.     A  sale  by  his  agent  is  a  sale  b}-  him.     Lerned  u.  Johns,  9  Allen, 
419,  and  cases  cited. 

In  the  case  at  bar,  it  does  not  appear  that  any  instructions  were 
given  b}'  the  plaintiff  in  regard  to  the  price,  manner,  or  terms  of  sale 
of  his  goods.  The  factors  therefore  had  the  right  to  sell  in  such 
manner  as  would  best  promote  the  interests  of  their  prhicipal ;  and  it 
is  to  be  presumed  that  the  plaintiff  understood  that  the}-  would  sell 
according  to  the  usual  course  of  dealing  in  Boston,  when  goods  are 
consigned  to  a  factor  for  sale.  Dwight  v.  Whitne}',  15  Pick.  179. 
That  a  factor  may  sell  on  credit,  and  take  a  note  in  his  own  name 
from  the  purchaser,  and  if  he  uses  due  diligence  he  is  not  responsible, 
in  case  of  loss  b}'  reason  of  the  purchaser's  failure,  was  settled  in  an 
earl}'  case.  A  factor  also  may,  and  often  does,  sell  the  goods  of  differ- 
ent principals  in  one  sale,  and  has  authorit}-  to  take  a  note  for  the 
whole  sum  from  the  purchaser,  and  may  hold  the  note  for  the  benefit 
of  his  principals.  Goodenow  v.  Tyler,  7  Mass.  36 ;  Chesterfield 
Manuf.  Co.  y.  Dehon,  5  Pick.  7 ;  West  Boylston  Manuf.  Co.  v. 
Searle,  15  Pick.  225  ;  Hapgood  v.  Batcheller,  4  Met.  573  ;  Hamilton 
V.  Cunningham,  2  Brock.  350  ;  Corlies  v.  Gumming,  6  Cowen,  181  ; 
Beawes  Lex  Merc.  (5th  ed.)  45. 

In  West  Boylston  Manuf.  Co.  v.  Searle,  ubi  siqjra,  a  factor  sold  the 
goods  of  two  consignors  in  one  sale,  and  took  the  note  of  the  pur- 
chaser ;  and  it  was  held  that  it  operated  as  payment ;  that  the  factor 
had  power  to  release  it ;  and,  although  he  afterwards  indorsed  it  to 
one  of  the  consignors,  that  no  action  could  be  maintained  on  the  note 
by  the  indorsee  ;  and  the  Court  said,  "  The  factors  having  an  unques- 
tioned authority  to  take  a  negotiable  note  in  their  own  name,  and 
thereupon  to  cancel  and  discharge  the  simple  contract  debt,  the  note 
was  rightly  taken,  and  whether  it  was  rightly  held  and  retained  by  the 
factors  as  their  own,  or  otherwise  appropriated,  was  a  question  merely 
between  them  and  their  employers." 

So  a  factor  may  sell  his  own  goods  with  those  of  his  principal,  and 
take  a  note  which  includes  the  amount  due  for  both,  as  in  Hapgood  v. 
Batcheller,  4  Met.  573.  In  that  case  it  appears  that  the  factors  had 
sold  goods  of  the  plaintiffs  and  some  of  their  own  in  one  sale,  and  had 
taken  a  note  from  the  purchaser  which  included  the  amount  due  for 
the  plaintiff's  goods  and  their  own  ;  and  it  was  said  by  the  Court,  that 
the  sales  by  the  defendant  were  made  in  the  nsual  manner,  and  the 
terms  of  credit  were  reasonable,  and  that  the  sales  were  at  the  risk  of 
the  principals.  Accounts  had  been  rendered  to  the  plaintiff  by  the 
factors  of  the  sale  of  the  goods,  a  portion  of  the  proceeds  had  been 
paid  over,  and  the  note  in  suit  was  given  for  the  balance  by  the  factors 
to  the  plaintiff.  Before  the  note  of  the  purchasers  was  due,  they 
became  insolvent,  and  it  was  held  that,  as  a  note  for  the  balance  of 
an  account  is  oii\\  prima  facie  evidence  of  payment,  the  factors  were 
not  liable  for  so  much  of  the  note  as  included  the  debt  of  the  insolvent 
purchaser.     See  also  Vail  v.  Durant,  7  Allen,  408. 


SECT,  v.]  KOOSEVELT   V.   DOHERTY.  683 

It  is  clear,  therefore,  that  when  a  note  is  taken  from  a  purchaser  hy 
a  factor,  for  the  sale  of  the  goods  of  several  consignors,  or  for  the 
sale  of  the  goods  of  one  or  more  consignors  and  of  the  goods  of  th& 
factor,  one  consignor  cannot  sue  the  purchaser  for  the  value  of  his 
goods  taken  separately,  although  his  goods  were  sold  for  a  definite 
sum,  capable  of  being  ascertained,  and  which  forms  a  distinct  part  of 
the  consideration  of  the  note.  The  note  is  payment  for  the  whole,  it 
is  a  contract  which  the  factor  had  the  right  to  make,  and  upon  which 
alone  the  purchaser  is  liable.  The  principal  is  thus  deprived  of  his 
direct  remedy  against  the  purchaser  for  the  separate  price  of  his  goods. 

In  the  case  at  bar,  Hills,  Turner,  &  Harmon  were  importers  of  and 
dealers  in  glass,  as  well  as  selling  agents  for  the  plaintiff,  and  they 
could  sell  their  own  goods  with  those  of  the  plaintiff,  in  the  same 
manner  as  they  could  soil  the  goods  of  several  principals  together. 
Having  authority  to  do  this,  and  thus  mingle  the  plaintiffs  goods  with 
their  own,  they  ma}'  make  an  entire  contract  with  the  purchaser  for 
the  goods  so  mingled.  And  this  contract  being  entire,  the  remedy,  as 
against  the  purchaser,  must  be  upon  the  contract  itself.  The  charac- 
ter of  the  contract  precludes  the  plaintiff  from  suing  separatel}-  for  the 
vahie  of  his  glass,  to  the  same  extent  as  he  would  have  been  precluded 
if  a  note  had  been  given  by  the  defendant  in  payment  for  the  goods 
sold  to  him  under  the  written  contract.  And  although  an  undisclosed 
principal  ma}'  maintain  an  action  in  his  own  name  against  one  who 
has  purchased  his  goods  through  a  factor,  yet  the  purchaser  is  entitled 
to  all  the  equities  and  defences  he  would  have  had  if  the  action  had 
been  brought  in  the  name  of  the  factor,  for  the  principal  has  permitted 
his  factor  to  act  as  the  apparent  principal  in  the  transaction.  Hunting- 
ton V.  Knox,  7  Cush.  371;  Barr\-  v.  Page,  10  Gra}-,  398;  Locke  v. 
Lewis,  124  Mass.  1,  7,  and  cases  cited. 

No  case  has  been  cited,  in  the  ver}-  elaborate  argument  for  the 
plaintiff,  in  which  such  an  action  as  this  has  been  maintained  ;  but  it 
is  argued  that  the  plaintiff's  position  is  sustained  by  the  onl}'  two  cases 
which  bear  upon  this  point, — Corlies  v.  Camming,  6  Cowen,  181; 
"West  Boylston  Manuf.  Co.  v.  Searle,  15  Pick.  225. 

The  case  of  Corlies  v.  Cumming  is  clearly  distinguishable.  There  a 
factor  sold  cheese  of  one  of  his  consignors  on  a  credit  of  ninety  days 
for  a  definite  and  distinct  sura,  and  at  the  same  time  sold  to  the  same 
purchaser  cheese  belonging  to  another  consignor,  and  took  from  the 
purchaser  a  note  payable  to  himself  for  both.  As  the  note  b}'  the  law 
of  New  York  was  not  a  payment,  it  was  held  that  the  factor  had  not 
made  himself  liable,  for  the  principal  might  sue  the  purchaser  for  the 
price  of  his  cheeses,  which  could  be  clearl}'  ascertained,  in  the  same 
manner  as  he  might  have  done  if  no  note  had  been  taken. 

A  dictum  of  Chief  Justice  Shaw  in  West  Boylston  Manuf.  Co.  v. 
Searle  is  relied  on  by  the  plaintiff.  "If,"  he  says,  "the  principal  is 
in  a  condition  to  declare  on  a  contract  for  goods  sold,  treating  the  note 
as  a  nullity,  or  as  a  mere  collateral  security,  not  amounting  to  paj-- 


684  STEBBINS   V.    WALKER.  [CHAP.  V. 

ment,  he  might  probably  recover  in  his  own  name."  This,  as  a 
general  proposition,  may  be  correct,  but  as  b}-  our  law  a  promissory 
note  is  prima  facie  pa3ment,  the  principal  cannot  recover  for  goods 
sold,  where  such  a  note  has  been  given  in  payment  for  his  goods. 

We  are  therefore  of  opinion  that  the  presiding  judge  correctl}'  ruled 
that  the  contract  made  by  the  defendant  was  an  entire  contract  for  a 
gross  sum  ;  and  that  the  plaintiff  had  no  right  to  sever  the  same  and 
maintain  an  action  in  his  own  name,  and  subject  the  defendant  to  a 
separate  suit  for  the  value  of  the  plate  glass  belonging  to  him  and 
included  in  the  contract  of  sale. 

Judgment  on  the  verdicU 


ORAMEL   G.    STEBBINS   v.   WALKER   and   another. 
Supreme  Court  of  Michigan.     1881. 

[46  Mich.  5.] 

Assumpsit.     Plaintiff  brings  error.     Affirmed. 

Latham  &  Case,  for  plaintiff  in  error. 

J.  W.  McGrath,  and  C.  I.  Walker,  for  defendants  in  error. 

CooLEY,  J.  This  case  was  sent  to  a  referee  by  the  circuit  court,  audi 
judgment  was  given  in  favor  of  defendant  on  the  referee's  report.  The 
important  facts  in  the  case  are  the  following :  — 

For  some  time  prior  to  June,  1879,  and  up  to  August  of  that  year, 
plaintiff  was  a  dealer  in  grain  at  Vermontville  in  this  State,  and  defend- 
ants were  commission  brokers  and  members  of  the  Board  of  Trade  of 
Detroit.  As  commission  brokers  the}'  had  bought  and  sold  for  the 
plaintiff  previous  to  the  30th  of  June,  1879,  and  made  advances  which 
were  all  settled  on  that  day.  On  August  14,  1879,  plaintiff  made  a 
conditional  sale  of  his  business  to  his  brother  Osmyn  G.  Stebbins. 
The  conditions  were  to  be  performed  within  a  week  thereafter,  but  the}' 
were  not  performed,  and  at  the  end  of  the  week  plaintiff  resumed  his 
business  and  took  possession  of  his  property,  which  in  the  mean  time 
his  brother  had  had  and  controlled,  A  few  days  before  this  the  de- 
fendants had  written  the  plaintiff,  soliciting  his  shipments,  and  in  reply 
they  received  the  following  letter :  — 

Office  of  O.  G.  Stebbins, 
Thornapple  Valley  Mills, 
And  dealer  in  Grain,  Feed,  Land,  Plaster,  etc. 

Vermontville,  Mich.,  Aug.  14,  1879. 
Messrs.  Walker,  Sumner,  «fe  Co. : 

Your  letter  of  the  4th  of  August  was  duly  received  at  my  stopping 
place,  and  by  reason  of  my  absence  from  home  and  general  inattention 
to  business  lies  unanswered.  At  the  opening  of  the  new  crop  trade 
this  season  I  did  not  think  I  should  engage  in  active  work  at  all  at 
present ;  and  as  I  am  yet  unable  to  labor,  I  do  not  know  when  I  shall 
take  hold  again.     I  am  now  seriously  contemplating  a  trip  to  Colorado. 


SECT,  v.]  STEBBINS   V.   WALKER.  685 

Mj  brother  is  at  work  in  a  mild  wa\'  in  the  wheat  business,  but  he  has 
so  far  seen  fit  to  ship  to  another  part}*  from  whom  he  gets  the  same 
rebate  as  you  offer.  His  initials  are  the  same  as  ray  own,  so  that  if 
j'ou  choose  to  correspond  with  him,  the  same  direction  will  reach  him 
as  myself. 

Thanking  you  for  your  efforts  in  m}-  behalf, 

1  remain  trul}'  yours, 

O.  G.  Stebbins. 

This  letter  was  understood  by  defendants  to  mean  that  the  plaintiff 
intended  to  remain  out  of  business  for  a  time,  and  that  the  brother 
Osmyn  was  then  in  the  wheat  business  in  Vermontville,  and  thereupon 
they  addressed  a  letter  to  Osmyn,  soliciting  his  business.  They  also 
wrote  to  the  plaintifT  informing  him  how  they  understood  his  letter,  and 
th.at  thej'  had  solicited  his  brother's  consignments.  To  this  the  plain- 
tiff sent  no  reply,  and  until  November  26th  following  defendants  sup- 
posed the  dealings  with  them  in  the  name  of  O.  G.  Stebbins  hereinafter 
mentioned  were  on  behalf  of  Osm^n  G.  Stebbins,  and  had  no  informa- 
tion and  no  reason  to  suspect  the  contrary.  These  dealings  began 
after  September  17th,  on  which  da}-  plaintiff  left  home  for  his  health 
and  remained  absent  until  October  24th,  leaving  his  brother  Osm3n  in 
charge  of  his  business.  While  he  was  gone  Osmj'n  shipped  to  defend- 
ants five  car-loads  of  wheat  in  the  name  of  O.  G.  Stebbins  and  for  the 
olaintiff,  but  which  defendants  received,  sold,  and  accounted  for,  sup- 
posing it  to  be  the  wheat  of  Osmyn  himself.  On  these  dealings  a  bal. 
ance  remained  due  to  the  defendants  of  $74.64.  There  was  also  sent 
to  defendants  a  car-load  of  wheat  which  was  placed  in  the  elevator,  but 
b}'  reason  of  some  mistake,  owing  to  a  change  of  bookkeepers,  was  not 
credited  to  any  one.  This  also  belonged  to  the  plaintiff.  Earh*  in 
November  defendants  also  made  a  purchase  of  wheat,  and  also  a  sale 
of  it  which  the}'  supposed  to  be  for  Osm^n,  but  which  was  in  realitv  on 
an  order  from  plaintiff,  on  which  they  realized  a  profit  of  $307.50,  and 
which  left  standing  to  the  credit  of  O.  G.  Stebbins  on  their  books 
$232.86. 

Osmyn  G.  Stebbins  left  his  brother's  employ  November  5,  1879. 
On  November  15th  he  telegraphed  defendants  from  Jackson  in  the 
name  of  O.  G.  Stebbins,  asking  them  to  send  him  $700.  Relying  upon 
his  personal  credit  they  sent  the  money.  At  the  same  time  he  re- 
quested them  to  purchase  for  O.  G.  Stebbins  3000  bushels  of  wheat  for 
January  deliver}'.     With  this  request  they  also  complied. 

On  November  26th  defendant  Walker  was  at  Vermontville,  when  he 
for  the  first  time  learned  that  plaintiff  had  resumed  business,  and  that 
all  the  wheat  dealings  previous  to  November  15th  had  been  conducted 
by  Osmyn  as  agent,  not  as  principal.  Plaintiff  told  Walker  he  had  no 
interest  in  the  purchase  of  November  15th,  but  would  take  it  off  de- 
fendants* hands.  This  he  could  then  have  done  at  a  profit  of  $150. 
Walker  declined  this  offer,  but  said  he  would  stand  upon  the  purchase 


686  STEBBINS    V.    WALKER.  [CHAP.  V. 

until  he  could  realize  $700  profit  upon  it,  and  then  close  it  out.  The 
wheat  was  afterwards  sold,  however,  without  profit.  Afterwards  plain- 
tiff had  other  dealings  with  defendants  which  entitled  them  to  claim 
from  him  $79.75.  The  car-load,  which  by  mistake  was  not  credited  to 
any  one,  was  sold  by  defendants  in  January  following,  and  realized 
$452.79.  The  defendants  claimed  they  were  entitled  to  appl}'  this  and 
also  the  $232.86  which  was  in  their  hands  to  the  credit  of  0.  G.  Steb- 
bins,  on  November  15,  1879,  as  part  payment  of  the  $700,  which 
Osmyn  G.  Stebbins  obtained  from  them  on  that  day.  Plaintiff  resisted 
this  claim,  and  demanded  from  defendants  the  proceeds  of  all  the  wheat 
belonging  to  him  which  had  been  forwarded  to  and  sold  by  them. 

The  circuit  court  gave  judgment  for  the  defendants,  applying  the 
$232.86  and  $452.79  in  accordance  with  their  claim,  and  permitting 
them  to  recover  the  balance  of  $79.25  on  subsequent  dealings.  This 
would  leave  a  balance  of  $14.35  of  the  $700  still  unpaid. 

Was  this  judgment  correct?  We  think  it  was.  Defendants  from 
August  14th  to  November  5th  had  been  dealing  with  Osmyn  G.  Steb- 
bins in  the  belief  that  he  was  principal  in  the  business,  induced  to  that 
belief  by  the  letter  and  subsequent  conduct  of  the  plaintifl",  and  having 
no  reason  to  think  or  suspect  the  contrary.  Plaintiff  knew  that  the 
manner  in  which  the  business  was  done  and  the  correspondence  con- 
ducted, was  calculated  to  lead  the  defendants  to  suppose  that  he  had 
retired  from  the  business,  and  Osm3'n  had  become  his  successor.  When 
Osmj'n  left  his  employment,  no  notice  was  given  to  defendants,  and  to 
all  appearance  the  business  continued  as  before.  The  defendants  were 
therefore  not  in  fault,  and  were  chargeable  with  no  negligence  in  assum- 
ing that  Osmyn  still  continued  to  be  the  principal.  He  had  forwarded 
several  car  loads  of  wheat  to  defendants  in  the  name  of  O.  G.  Stebbins 
prior  to  November  5th,  and  received  the  proceeds  in  the  name  of  O.  G. 
Stebbins,  and  it  is  conceded  that  pa^-ment  was  properl}'  made  to  him, 
though  the  wheat  belonged  to  the  plaintiff.  Defendants  supposed  the 
wheat  belonged  to  Osmj-n,  but  it  is  conceded  that  if  they  had  known 
the  plaintiff  was  owner,  the  payment  to  Osmyn  would  have  been  a 
valid  payment,  because  Osmyn  was  the  plaintiff's  agent  and  doing  busi- 
ness in  the  plaintiff's  name.  But  if  a  payment  to  Osmyn  before 
November  5th  was  good,  one  after  November  5th  must  have  been 
equally  good.  Defendants  had  no  notice  of  any  change  in  the  business, 
and  in  fact  there  had  been  none.  The  same  person  who  had  sent  wheat 
to  them,  and  who  they  supposed  and  had  a  right  to  suppose  was  the 
principal,  requested  of  them  an  advance,  and  they  made  it.  The  referee 
reports  that  defendants  relied,  in  making  this  advance,  on  the  personal 
credit  of  Osmyn ;  but  their  reliance  on  his  credit  would  not  preclude 
their  rel3-ing  also  on  their  lien  upon  the  grain  received  from  him. 
Liens  on  propert}'  are  commonly  accompanied  b}'  a  personal  responsi- 
bility, and  the  creditor  is  entitled  to  rely  upon  both. 

The  case  in  judgment  is  a  plain  case  of  estoppel.  There  has  been 
aegligence  from  which  one  of  two  parties  must  suffer,  and  the  responsi- 


SECT.  V.J  COOKE    V.    ESHELBY.  687 

bilit}'  for  this  negligence  justly  and  exclusiveh'  lies  at  the  door  of  the 
plaintiff.  If  he  were  now  to  collect  of  defendants  the  sum  they  ad- 
vanced to  his  brother  while  he  was  acting  ostensibly  as  principal,  they 
would  be  defrauded,  and  the  plaintiff's  negligence  would  have  furnished 
the  opportunit}-,  and  the  agent.  The  loss  must  therefore  fall  upon  the 
plaintiff,  though  his  intentions  may  have  been  entirely  honest :  Vanne- 
ter  V.  Grossman,  42  Mich.  465.  Nor  has  there  been  any  failure  here,  as 
there  was  in  Maxwell  v.  Bay  City  Bridge  Co.,  41  Mich.  453,  to  find  the 
facts  from  which  the  estoppel  springs  :  they  all  appear  in  the  referee's 
report. 

It  is  claimed  that  defendants  waived  the  lien  on  the  car  load  of 
wheat  remaining  in  their  hands  when  they  were  informed  of  plaintiffs 
interest ;  but  the  record  shows  no  express  waiver,  and  no  facts  from 
which  it  must  necessarily  be  implied.  The}-  did  indeed  express  a  will- 
ingness to  hold  the  January  wheat  until  the  rise  in  value  should  make 
good  their  loss  ;  but  there  was  no  agreement  to  that  effect,  and  if  there 
had  been,  a  desire  to  protect  the  plaintiff  against  loss  might  sufficiently 
account  for  it.  They  also  declined  plaintiff's  offer  to  take  the  January 
wheat  off  their  hands,  coupled  as  it  evidently  was  in  his  mind  with 
leaving  them  to  lose  the  $700  advance  ;  and  for  this  they  cannot  be 
blamed.  It  was  talked  over  between  the  parties  that  defendants  should 
proceed  to  sell  the  car  load  of  wheat  then  on  hand  ;  but  if  plaintiff  ex- 
pected defendants  to  waive  any  existing  lien,  and  pav  over  to  him  the 
proceeds,  he  neither  gave  any  consideration  therefor,  nor  asked  or  ob- 
tained an}'  promise  to  that  effect.  The  defendants  were  therefore  at 
liberty  to  stand  upon  their  rights  as  the}'  existed  at  the  time  they  first 
learned  that  the  business  carried  on  with  them  by  Osmyn  in  the  name 
of  O.  G.  Stebbins  was  really  the  business  of  the  plaintiff. 

The  judgment  must  be  affirmed,  with  costs. 

The  other  justices  concurred. 


ISAAC   COOKE   &   SONS    v.   ESHELBY. 
House  of  Lords.     1887. 

[12  App.  Cas.  271.] 

Appeal  from  a  decision  of  the  Court  of  Appeal. 

In  April  and  June  1883  Livesey  Sons  &  Co.,  cotton  brokers  at 
Liverpool,  sold  to  Isaac  Cooke  &  Sons,  on  the  Liverpool  cotton 
market,  cotton  for  future  deliveries.  Livesey  Sons  &  Co.  made  these 
two  contracts  in  their  own  names,  but  were  really  acting  as  agents  for 
Maximos,  their  undisclosed  principal.  Before  maturit}'  of  the  con- 
tracts Livesey  Sons  &  Co.  suspended  pa3-ment,  and  under  the  rules 
of  the   Liverpool    Cotton   Association,    Limited,    the    contracts   were 


688  COOKE  V.    ESHELBY.  [CHAP.  V. 

closed  in  the  form  of  repurcliases  by  Livesey  Sons  &  Co.  from  Isaac 
Cooke  &  Sons.  The  price  of  cotton  having  fallen,  the  result  of  this 
transaction  was  that  a  sum  of  £680  was  due  from  Isaac  Cooke  &  Sons 
to  Livese3-  Sons  &  Co.  For  this  sum  an  action  was  brought  against 
Isaac  Cooke  &  Sons  by  Eshelby  as  trustee  in  the  liquidation  of 
Maximos,  who  had  failed. 

The  defendants  by  their  defence  claimed  to  set  off  against  the  plain- 
tiff's claim  monej'  due  from  Livesey  Sous  &  Co.  to  the  defendants 
upon  a  general  account. 

In  answer  to  the  plaintiff's  interrogatories  whether  in  the  transac- 
tions sued  on  the  defendants  did  not  believe  that  Livese}'  &  Co.  were 
acting  as  brokers  on  behalf  of  principals  the  defendants  said:  "We 
had  no  belief  on  the  subject.  We  dealt  with  Livese\'  &  Co.  as  prin- 
cipals, not  knowing  whether  they  were  acting  as  brokers  on  behalf  of 
principals,  or  on  their  own  account  as  the  principals." 

At  the  trial  at  Liverpool  in  February,  1884,  before  Baggallay,  L.  J., 
■without  a  jury,  it  was  proved  that  Livese}'  &  Co.  bought  and  sold  both 
for  principals  and  on  their  own  account,  and  that  Cooke  &  Sons  knew 
this.  Baggallay,  L.  J.,  held  that  the  defendants  were  entitled  to  the 
set-off,  and  gave  judgment  for  them. 

The  Court  of  Appeal  (Bkett,  M.  R.,  Lindley  and  Bowen,  L.JJ.) 
reversed  this  decision,  and  entered  judgment  for  the  plaintiff  for  the 
amount  claimed,  on  the  ground  that  the  defendants  were  not  entitled 
to  the  set-off  unless  the}-  had  been  induced  by  the  conduct  of  Maximos 
the  principal  to  believe,  and  did  in  fact  believe,  that  they  were  dealing 
with  Livese}'  &  Co.  as  the  principals. 

Against  this  decision  the  defendants  appealed. 

W.  R.  Kennedy,  Q.  C,  and  T.  G.  Carver  for  the  appellants. 

D.  French,  Q.C.,  and  Synnott,  for  the  respondents,  were  not  heard. 

Lord  Halsbury,  L.  C.  My  Lords,  in  this  case  a  merchant  in 
Liverpool  effected  two  sales  through  his  brokers.  The  brokers  effected 
the  sales  in  their  own  names.  The  appellants,  the  merchants  with 
whom  these  contracts  were  made,  knew  the  brokers  to  be  brokers,  and 
that  it  was  their  practice  to  sell  in  their  own  names  in  transactions  in 
which  they  were  acting  only  as  brokers.  The}-  also  knew  that  the 
brokers  were  in  the  habit  of  buying  and  selling  for  themselves.  The 
appellants  with  commendable  candor  admit  that  the}'  are  unable  to 
say  that  they  believed  the  brokers  to  be  principals  ;  they  knew  they 
might  be  either  one  or  the  other ;  they  say  that  they  dealt  with  the 
brokers  as  principals,  but  at  the  same  time  the}-  admit  that  the}'  had 
no  belief  one  way  or  the  other  whether  they  were  dealing  with  prin- 
cipals or  brokers. 

It  appears  to  me  that  the  principle  upon  which  this  case  must  be 
decided  has  been  so  long  established  that  in  such  a  state  of  facts  as  I 
have  recited  the  legal  result  cannot  be  doubtful.  The  ground  upon 
which  all  these  cases  have  been  decided  is  that  the  agent  has  been 
permitted  by  the  principal  to  hold  himself  out  as  the  principal,  and  that 


SECT,  v.]  COOKE   V.   ESHELBY.  689 

the  person  dealing  with  the  agent  has  believed  that  the  agent  was  the 
principal,  and  has  acted  on  that  belief.  With  reference  to  both  those 
propositions,  namely,  first,  the  permission  of  the  real  principal  to  the 
agent  to  assume  his  character,  and  with  reference  to  tlie  fact  wliether 
those  dealing  with  the  supposed  principal  have  in  fact  acted  upon  the 
belief  induced  by  tlie  real  principal's  conduct,  various  difficult  ques- 
tions of  fact  have  from  time  to  time  arisen  ;  but  I  do  not  believe  that 
any  doul)t  has  ever  been  thrown  upon  the  law  as  decided  by  a  great 
variety  of  judges  for  something  more  than  a  century.  The  cases  are 
all  collected  in  the  notes  to  George  v.  Clagctt,  2  Sm.  L.  C.  8th  Ed. 
118. 

In  Baring  v.  Corrie,  2  B.  &  Aid.  137,  144,  147,  in  1818,  Lord  Ten- 
terden  had  before  him  a  very  similar  case  to  that  which  is  now  l)efore 
your  Lordships,  and  although  in  that  case  the  court  had  to  infer  what 
we  have  here  proved  by  the  candid  admission  of  the  part}-,  the  prin- 
ciple upon  which  the  case  was  decided  is  precisely  that  which  appears 
to  me  to  govern  the  case  now  before  your  Lordships.  Lord  Tenterden 
says  of  the  persons  who  were  in  that  case  insisting  that  they  had  a 
right  to  treat  the  brokers  as  principals :  "  They  knew  that  Coles  &  Co. 
acted  both  as  brokers  and  merchants,  and  if  they  meant  to  deal  with 
them  as  merchants,  and  to  derive  a  benefit  from  so  dealing  with  them, 
they  ought  to  have  inquired  whether  in  this  transaction  they  acted  as 
brokers  or  not;  but  the}'  made  no  inquir}'."  And  Bayley,  J.,  saj's : 
"  When  Coles  «S;  Co.  stood  at  least  in  an  equivocal  situation,  the 
defendants  ought  in  common  honesty,  if  they  bought  the  goods  with 
a  view  to  cover  their  own  debt,  to  have  asked  in  what  character 
the}-  sold  the  goods  in  question.  I  therefore  cannot  think  that  the 
defendants  believed,  when  they  bought  the  goods,  that  Coles  &  Co. 
sold  them  on  their  own  account.  And  if  so,  they  can  have  no  defence 
to  the  present  action." 

I  am  therefore  of  opinion  that  the  judgment  of  the  Court  of  Appeal 
was  right.  The  selling  in  his  own  name  by  a  broker  is  only  one  fact, 
and  by  no  means  a  conclusive  fact,  from  w-hich,  in  the  absence  of  other 
circumstances,  it  might  be  inferred  that  he  was  selling  his  own  goods. 
Upon  the  facts  proved  or  admitted  in  this  case  the  fact  of  selling  in 
the  broker's  name  was  neither  calculated  to  induce  nor  did  in  fact 
induce  that  belief. 

I  now  move  your  Lordships  to  affirm  the  judgment  of  the  Court  of 
Appeal  and  to  dismiss  this  appeal  with  costs. 

Lord  Watson.^  The  only  facts  which  have  a  material  bearing  upon 
the  appellants'  defence  are  these.  According  to  the  practice  of  the 
Liverpool  cotton  market  with  which  the  appellants  were  familiar, 
brokers  in  the  position  of  Livesey  Sons  &  Co.  buy  and  sell  both  for 
themselves  and  for  principals  ;  and  in  the  latter  case  they  transact, 
sometimes  in  their  own  name  without  disclosing  their  agency,  and  at 

*  After  stating  the  case.  —  Ed. 
44 


690  COOKE  V.    ESHELBY.  [CHAP.  T. 

other  times  in  the  name  of  their  principal.  In  their  answer  to  an 
interrogation  by  the  plaintiff  touching  their  belief  that  Livesey  Sons  & 
Co.  were  acting  on  behalf  of  principals  in  the  two  transactions  in  ques- 
tion, the  appellants  say  :  "  We  had  no  belief  upon  the  subject.  We 
dealt  with  Livesey  Sons  &  Co.  as  principals,  not  knowing  whether 
they  were  acting  as  brokers  on  behalf  of  principals  or  on  their  own 
account  as  the  principals." 

That  is  a  very  candid  statement,  but  I  do  not  think  any  other 
answer  could  have  been  honestlj'  made  b}'  persons  who,  at  the  time  of 
the  transactions,  were  cognizant  of  the  practice  followed  by  members 
of  the  Liverpool  Cotton  Association.  A  sale  bv  a  broker  in  his  own 
name  to  persons  having  that  knowledge,  does  not  conve}-  to  them  an 
assurance  that  he  is  selling  on  his  own  account ;  on  the  contrary  it  is 
equivalent  to  an  express  intimation  that  the  cotton  is  either  his  own 
property  or  the  property  of  a  principal  who  has  employed  him  as  an 
agent  to  sell.  A  purchaser  who  is  content  to  buy  on  these  terms 
cannot,  when  the  real  principal  comes  forward,  allege  that  the  broker 
sold  the  cotton  as  his  own.  If  the  intending  purchaser  desires  to  deal 
with  the  broker  as  a  principal  and  not  as  an  agent  in  order  to  secure 
a  right  to  set-off,  he  is  put  upon  his  inquiry.  Should  the  broker  refuse 
to  state  whether  he  is  acting  for  himself  or  for  a  principal,  the  buj'er 
may  decline  to  enter  into  the  transaction.  If  he  chooses  to  purchase 
without  inquiry,  or  notwithstanding  the  broker's  refusal  to  give  infor- 
mation, he  does  so  with  notice  that  there  may  be  a  principal  for  whom 
the  broker  is  acting  as  agent ;  and  should  that  ultimately  prove  to  be  the 
fact,  he  has,  in  m}-  opinion,  no  right  to  set  off  his  indebtedness  to  the 
principal  against  debts  owing  to  him  by  the  agent. 

It  was  argued  for  the  appellants,  that  in  all  cases  where  a  broker, 
having  authority  to  that  effect,  sells  in  his  own  name  for  an  undis- 
closed principal,  the  purchaser,  at  the  time  when  the  principal  is  dis- 
closed, is  entitled  to  be  placed  in  the  same  position  as  if  the  agent  had 
contracted  on  his  own  account.  That  was  said  to  be  the  rule  estab- 
lished by  George  v.  Clagett,  Sims  v.  Bond,  5  B.  &  Ad.  389,  and  sub- 
sequent cases.  It  is  clear  that  Livesey  Sons  &  Co.  were  not  mere 
brokers  or  middlemen,  but  were  agents  within  the  meaning  of  these 
authorities,  and  if  the  argument  of  the  appellants  were  well  founded 
they  would  be  entitled  to  prevail  in  this  ap])eal,  because  in  that  case 
their  right  of  set-off  had  arisen  before  the  20th  of  July,  1883,  when 
they  first  had  notice  that  Maximos  was  the  principal. 

I  do  not  think  it  necessary  to  enter  into  a  minute  examination  of 
the  authorities,  which  were  fully  discussed  in  the  arguments  addressed 
to  us.  The  case  of  George  v.  Clagett  has  been  commented  upon 
and  its  principles  explained  in  many  subsequent  decisions,  and  notably 
in  Baring  v.  Corrie,  Semenza  v.  Brinsley,  18  C.  B.  n.  s.  467,  and 
Borries  v.  Imperial  Ottoman  Bank,  Law  Rep.  9  C.  P.  38.  These  deci- 
sions appear  to  me  to  establish  conclusive!}'  that,  in  order  to  sustain 
the  defence  pleaded  by  the  appellants,  it  is  not  enough  to  show  that 


SECT.  V.J  COOKE    V.    ESHELBY.  691 

the  agent  sold  in  his  own  name.  It  must  be  shown  that  he  sold 
the  goods  as  his  own,  or,  in  other  words,  that  the  circumstances  at- 
tending the  sale  were  calculated  to  induce,  and  did  induce,  in  the 
mind  of  the  purcluiser  a  reasonable  belief  that  the  agent  was  selling 
on  his  own  account  and  not  for  an  undisclosed  principal ;  and  it  must 
also  be  shown  that  the  agent  was  enabled  to  appear  as  the  real  con- 
tracting party  by  the  conduct,  or  by  the  authortty,  express  or  implied, 
of  the  principal.  The  rule  thus  explained  is  intelligible  and  just ; 
and  I  agree  with  Bowen,  L.  J.,  that  it  rests  upon  the  doctrine  of 
estoppel.  It  would  be  inconsistent  with  fair  dealing  that  a  latent 
principal  should  by  his  own  act  or  omission  lead  a  purchaser  to  rel}' 
upon  a  right  of  set-off  against  the  agent  as  the  real  seller,  and  should 
nevertheless  be  permitted  to  intervene  and  deprive  the  purchaser  of 
that  right  at  the  very  time  when  it  had  become  necessary  for  his 
protection, 

1  therefore  agree  with  the  conclusion  of  the  learned  judges  of  the 
Court  of  Appeal,  and  with  the  reasoning  upon  which  it  is  founded. 
A  broker  who  effects  a  sale  in  his  own  name  with  an  intimation, 
express  or  implied,  that  he  is  possibly  selling  as  an  agent,  does  not 
sell  the  goods  as  his  own,  and  in  such  a  case  the  purchaser  has  no 
reasonable  grounds  for  believing  that  the  agent  is  the  real  part^'  with 
whom  he  has  contracted. 

Lord  FitzGerald.^  I  concur  with  ray  noble  and  learned  friend  in 
adopting  at  once  the  decision  and  the  reasons  of  the  Court  of  Appeal. 
I  have,  however,  some  hesitation  in  accepting  the  view  that  the  deci- 
sions  rest  on  the  doctrine  of  estoppel.  Estoppel  m  pais  involves 
considerations  not  necessarily  applicable  to  the  case  before  us.  There 
is  some  danger  in  professing  to  state  the  principle  on  which  a  line  of 
decisions  rests,  and  it  seems  to  me  to  be  sufficient  to  say  in  the  present 
case  that  Maximos  did  not  in  any  wa^^  wilfully  or  otherwise  mislead 
the  defendants  (Cooke  &  Sons)  or  induce  them  to  believe  that  Livesej' 
&  Co.  were  the  owners  of  the  goods  or  authorized  to  sell  them  as  their 
own,  or  practice  any  imposition  on  them.  The  defendants  were  not 
in  any  way  misled. 

Order  appealed  from  affirmed ;  and  appeal  dismissed  with  costs.^ 

^  After  discussing  the  facts.  —  Ed. 

2  Arc:  Miller  v.  Lea,  35  Md.  396  (1872),  where,  at  pp.  406-407,  Alvet,  J.,  said: 
"  The  buyer  must  be  cautious,  and  not  act  regardless  of  the  rights  of  the  principal, 
though  undisclosed,  if  he  has  any  reasonable  grounds  to  believe  that  the  party  with 
whom  he  deals  is  but  an  agent.  Hence,  if  the  character  of  the  seller  is  equivocal,  if 
he  is  known  to  be  in  the  liabit  of  selling  sometimes  as  principal  and  sometimes  as 
agent,  a  purchaser  who  buys  witli  a  view  of  covering  his  own  debts  and  availing  him- 
self of  a  set-off  is  bound  to  inquire  in  what  character  he  acts  in  the  particular  trans- 
action ;  and  if  the  buyer  chooses  to  make  no  inquiry,  and  it  should  turn  out  that  he 
has  bought  of  an  undisclosed  principal,  he  will  be  denied  the  benefit  of  his  set-off."  — 
Ed. 


692  HEALD   V.    KENWORTHY.  [CHAP.  V 

SECTION  V.  {continued). 
iB)    In  an  Action  brought  by  the  Third  Party  against  the  Principal. 

NELSON   V.   POWELL. 
King's  Bench.     1784. 

[3  Doug.4]0.] 

This  was  an  action  of  assumpsit  for  goods  sold  and  delivered,  tried 
at  Exeter  before  Mr.  Baron  Hotham.  The  facts  at  the  trial  appeared 
to  be  these :  The  defendant,  b}'  one  Thomas  his  broker,  bought 
goods  of  the  plaintiff.  The  invoices  were  made  out  in  the  broker's 
name  for  goods  delivered  to  him,  and  were  all  paid  for  except  a  bal- 
ance, for  which  the  plaintiff  pressed  Thomas,  who  had  not  declared  his 
principal.  One  of  the  plaintiff's  letters  to  Thomas  was  sent  by  him  to 
the  defendant,  who,  having  remitted  to  Thomas  sufficient  to  paj*  the 
plaintiff,  wrote  to  the  latter  and  informed  him  of  that  fact.  After  this 
the  plaintiff  again  called  on  Thomas  to  pay  the  monej-  as  due  from 
him  ;  but  this  not  being  done,  the  plaintiff  brought  the  present  action. 
The  jury  having  found  a  verdict  for  the  plaintiff, 

Lavrence  now  moved  for  a  new  trial,  on  the  ground  that  the  credit 
had  been  given  to  Thomas,  and  that  he  alone  was  liable  ;  but 

Lord  Mansfield  held  the  principal  liable  whenever  he  was  known, 
and  The  rule  xoas  refused.^ 


HEALD   AND  OTHERS  V.  KENWORTHY. 

Exchequer.     1855. 
[10  Exch.  739.] 

The  declaration  was  for  goods  sold  and  delivered. 

Plea.  That  the  selling  and  delivering  in  the  declaration  mentioned 
was,  and  consisted  in,  the  sales  and  deliveries  hereinafter  in  this  plea 
mentioned,  and  not  otherwise  ;  and  that  the  sales  and  deliveries  of  the 
said  goods  to  the  defendant,  and  the  purchases  by  the  defendant  from 
the  plaintiffs,  were  made  by  the  agency,  on  behalf  of  the  defendant,  of 
W.  V.  Taj'lor,  and  not  otherwise ;  and  the  said  purchases,  and  the  ac- 
ceptance from  the  plaintiffs  of  the  said  goods,  were  made  by,  and  the 

^  See  Raymond  f.  Crown  &  Eagle  Mills,  2  Met.  319  (1841).  — Ed. 


SECT,  v.]  HEALD   V.    KENWORTHY.  693 

said  sales  and  deliveries  by  the  pluiiilifi's  were  made  to,  the  said  Ta}  lor 
in  his  own  name  and  not  in  the  name  of  the  defendant ;  and  that  the 
plaintiffs  at  the  time  of,  and  in  and  about  the  said  sales  and  deliveries, 
gave  credit  to  the  said  Taj-lor  as  buyer  of  the  said  goods,  and  in  respect 
of  the  prices  thereof,  and  in  all  respects  treated  him  as  a  principal,  and 
continued  so  to  credit  him  and  to  treat  him  until  after  the  defendant 
had  made  the  payments  to  the  said  Taylor,  and  settled  with  and  satis- 
fied him  as  hereinafter  is  mentioned  ;  and  the  plaintiffs  did  not  at  any 
time,  until  after  the  defendant  had  so  made  the  payments  to  and  set- 
tled with  and  satisfied  the  said  Taylor  as  aforesaid,  give  credit  to  the 
defendant  in  respect  of  any  of  the  said  sales  or  prices,  or  in  any  way 
treat  the  defendant  as  buyer  of  the  said  goods  or  any  part  thereof,  or 
as  in  any  way  responsible  to  the  plaintiffs,  or  make  any  claim  or  de- 
mand on  him  in  respect  of  any  of  the  said  sales  or  prices  ;  and  that 
after  the  said  sales  respectively,  and  before  the  defendant  knew  or  had 
notice  or  reason  to  believe  that  the  said  Taylor  was  or  would  be  unable 
to  pay,  or  that  he  would  not  pay  the  vendors  of  the  said  goods  the 
prices  thereof  in  full,  according  to  the  terms  of  the  said  sales,  and 
when  (on  the  contrary)  the  defendant  had  reason  to  believe,  and  did 
believe,  that  the  said  Taylor  would  duly  settle  with  the  vendors  ac- 
cording to  the  said  terms,  he  the  defendant  bona  fide  settled  w'ith  the 
said  Taylor  in  respect  of  the  said  purchases  and  prices,  and  bona  fide 
paid  the  said  Taylor,  on  account  of  the  said  goods  and  the  purchases 
and  prices  thereof,  moneys  sufficient,  and  more  than  sufficient  to  pay 
and  satisfy  the  said  prices  and  all  claims  of  the  said  Taylor  in  respect 
of  the  said  purchases  and  prices,  and  being  sufficient  and  more  than 
sufficient  to  pay  and  satisfy  all  claims  of  the  plaintiffs  in  respect 
of  the  said  goods  and  the  said  prices ;  and  the  said  Taylor  then 
became,  and  was,  satisfied  in  respect  of  the  said  goods  and  prices,  and 
of  all  claims  on  account  thereof,  and  then  became  indebted  to  the  de- 
fendant, and  hath  at  all  times  continued  and  still  is  so  indebted  to  the 
defendant ;  and  the  defendant  hath  not  since  the  said  settlement  been 
indebted  to  the  said  Taylor ;  that  the  said  payments  to  the  said  Taylor 
were  made  by  the  defendant  before  commencement  of  this  suit,  and 
were  made  by  the  defendant  at  reasonable  and  proper  times,  and  ac- 
cording to  the  usual  course  of  dealing  between  the  defendant  and  the 
said  Taylor,  and  according  to  the  usual  and  proper  course  of  business, 
and  not  unduly  early  ;  and  the  said  times  were  times  which,  before  and 
when  the  defendant  made  the  said  payments,  were  represented  by  the 
said  Taylor  to  the  defendant  to  be,  and  which  the  defendant  before 
and  when  he  made  the  said  payments  had  reason  to  believe  and  did  be- 
lieve to  be,  necessary  and  proper  times  of  payments  of  the  said  sums, 
and  necessary  and  proper,  in  order  to  put  the  said  Taylor  in  funds, 
and  enable  him  to  pay  and  satisfy  the  vendors  according  to  the  terms 
of  the  said  sales  ;  and  that  before  he  knew  or  had  notice  that  the 
plaintiffs  had  been  the  vendors,  or  that  the  vendors  were  not  paid 
according  to  the  terms  of  the  said  sales,  he  the  defendant  had  reason 


69-4  HEALD   V.    KENWOKTHY.  [CIIAP.  V. 

to  believe,  and  did  believe,  that  the  persons  wlio  had  sold  tlie  said 
goods  to  the  said  Taylor  as  aforesaid  had  been  paid  ;  and  that  the 
defendant  did  not  know,  nor  had  notice  until  after  he  had  made  the 
payments  to  and  settled  with  and  satisfied  the  said  Taylor  as  aforesaid, 
nor  until  after  the  defendant  had  received  the  said  goods  from  the  said 
Taylor,  that  the  plaintiffs  had  become  or  were  vendors  of  the  said  goods, 
or  an}'  of  them,  or  that  they  made  or  had  any  claim  in  respect  of  any 
of  the  said  goods,  or  of  the  prices  thereof,  nor  did  the  defendant  know, 
nor  had  he  notice  until  after  the  said  payments  to  and  the  settlement 
with  and  satisfaction  of  the  said  Taylor,  what  were  the  terms  as  to 
times  or  modes  of  payment  on  which  the  said  Taylor  had  bought  the 
said  goods,  or  an^-  of  them  ;  and  the  defendant  says  that,  according  to 
the  terms  of  the  said  sales  by  the  plaintiffs,  the  said  prices  were  pay- 
able to  the  plaintiffs  before  the  time  when  the  defendant  first  had  notice 
of  any  claim  or  right  of  the  plaintiffs  in  respect  of  any  of  the  said  goods 
or  prices. 

Dem.urrer  and  joinder. 

The  case  came  on  for  argument  in  last  Michaelmas  Term  (November 
13),  when  the  court,  inclining  to  the  opinion  that  the  plea  was  ambig- 
uous, and  might  perhaps  afford  a  defence,  as  amounting  to  the  general 
issue,  and  the  parties  being  desirous  that  it  should  raise  the  substantial 
question,  the  case  was  ordered  to  stand  over  for  the  purpose  of  amend- 
ing the  plea.  Certain  alterations  were  now  made  in  the  plea  b}'  the 
court,  to  admit  that  a  debt  had  been  created  between  the  plaintiffs 
and  the  defendant. 

Cleashy  in  support  of  the  demurrer.  It  being  agreed  that  the  plea 
shall  not  be  taken  to  amount  to  the  general  issue,  it  affords  no  defence 
to  this  claim  by  the  seller  of  the  goods  against  the  principal.  The 
simple  fact,  that  a  principal  has  bona  fide  provided  his  agent  with 
money  for  the  payment  of  a  debt,  which  monej'  is  not  paid  b}-  the 
agent  to  the  creditor,  does  not  discharge  the  principal.  [Alderson, 
B.  Credit  was  not  given  to  the  agent  by  the  plaintiffs.  Parke,  B. 
The  plaintiffs'  argument  is,  that  the  simple  fact  of  the  agent  having 
received  the  money  is  no  answer  to  the  claim.  The  defendant  was 
bound  to  see  that  the  plaintiffs  were  duly  paid.  This  case  does  not 
fall  within  the  principle  that  the  debtor  cannot  be  sued  where  he 
has  been  misled  by  the  creditor  to  make  the  payment.  The  dicta  of 
learned  judges  are  to  be  regarded  in  this  light.  Thus  in  Kymer  v. 
Suwercropp,  1  Camp.  110,  Lord  Ellenborough,  C.  J.,  says:  "  If  he," 
that  is  the  seller  of  the  goods,  "lets  the  day  of  payment  go  by,  he 
may  lead  the  principal  into  a  supposition  that  he  relies  solely  on  the 
broker ;  and  if  in  that  case  the  price  of  the  goods  has  been  paid  to  the 
broker  on  account  of  this  deception,  the  principal  shall  be  discharged." 
Smyth  r.  Anderson,  7  C.  B.  21,  and  Wyatt  r.  Marquess  of  Hertford, 
3  East.  147,  contain  diita  which  may  be  explained  in  the  same  way. 
In  such  a  case  it  would  be  unjust  to  allow  the  seller  to  recover  against 
the  principal.]     If  the  plaintiffs  had  by  their  conduct  altered  the  state 


SECT,  v.]  HEALD    V.    KENWOKTHY.  695 

of  accounts  between  the  defendant  and  hi.s  agent,  the  case  would  have 
fallen  within  the  same  principle.     He  was  then  stopped  by  the  court. 

Asjjlmid  contra.  The  plea  alleges  that  the  goods  were  delivered  to 
the  agent,  and  that  when  the  payment  was  made  b}-  the  defendant  to 
him  he  had  reason  to  believe,  and  did  believe,  that  the  agent  would  pay 
the  plaintiffs,  and  that  payment  so  made  to  the  agent  was  not  unduly 
earl\-.  It  has  been  assumed  on  the  part  of  the  plaintiffs  that  the  rule 
under  which  the  principal  wlien  discovered  is  liable  to  the  seller  is  an 
unlimited  one.  But  the  application  of  that  rule  depends  on  the  partic- 
cular  facts  of  the  case  ;  for  instance,  a  foreign  principal  is  not  liable. 
[Pahki:,  B.  The  question  of  his  liability  is  one  of  fact.  Where  the 
seller  deals  with  an  agent  resident  in  this  countr}',  and  acting  for  a 
foreign  principal,  the  presumption  is,  that  the  seller  does  not  contract 
with  the  foreigner  and  trust  him,  but  with  the  party  with  whom  he 
makes  the  bargain.  That  is  a  question  of  fact,  and  not  of  law. 
Martin,  B.  Here  the  defendant  authorized  his  agent  to  pledge  his 
credit.  The  case  differs  from  that  where  a  servant  is  sent  with  the 
money  in  his  hand  to  make  a  purchase,  for  there  the  master  gives  no 
authority  to  his  servant  to  pledge  his  credit.  Parke,  B.  A  debt  has 
been  created  In-  the  defendant's  authority.  He  is  bound  to  see  that  it 
is  paid.  What,  then,  is  there  in  the  plea  which  precludes  the  plaintiffs 
from  recovering  their  debt?]  There  is  no  authority  precisely  in  point, 
although  the  reports  contain  several  dicta  which  are  in  the  defendant's 
favor.  In  Paterson  v.  Gandasequi,  15  East,  62,  Lord  EUenborough, 
C.  J.,  said,  "  The  case  in  which  I  remember  that  the  liability  of  a 
principal  was  carried  furthest  was  Powel  v.  Nelson  upon  the  Western 
Circuit,  of  which  Mr.  Justice  Lawrence  had  a  manuscript  note. 
There,  a  factor  made  purchases  for  his  principal,  who  made  pa3'ments 
for  him  on  account.  Afterwards  the  factor  was  pressed  for  payment 
by  a  letter  which  came  to  the  hands  of  the  principal,  who  transmitted 
it  to  tlie  factor,  and  with  a  knowledge  of  the  fact  paid  him  the  residue. 
It  was  held  b}'  Lord  Mansfield,  C.  J.,  that  the  principal  was  liable 
over  to  the  sellers  for  the  money  he  had  so  paid  to  his  factor  after 
notice."  In  Smyth  v.  Anderson,  7  C.  B.  21,  INIaule,  J.,  in  delivering 
the  judgment  of  the  court,  cites  the  dictum  of  Bayley,  J.,  to  be  found 
in  Thomson  v.  Davenport,  9  B.  &  C.  78,  that  "it  is  said  that  the 
seller  ought  to  have  asked  the  name  of  the  principal,  and  charged  him 
with  the  price  of  the  goods.  B}'  omitting  to  do  so,  he  might  have  lost 
his  right  to  claim  payment  from  the  principal,  had  the  latter  paid  the 
agent,  or  had  the  state  of  the  accounts  between  the  principal  and  the 
agent  been  such  as  to  make  it  unjust  that  the  former  should  be  called 
upon  to  make  the  payment."  [Parke,  B.  Something,  however,  must 
occur  to  make  it  unjust  to  call  upon  the  principal  for  payment ;  where, 
for  instance,  the  seller  tells  the  principal  that  he  will  look  to  the  agent 
for  payment,  and  the  principal  pays  the  agent,  it  would  be  unjust  to 
hold  the  principal  liable,  in  case  of  non-payment  b}'  the  agent.]  Wilde, 
C.  J.,   in   Smyth  r.   Anderson,  makes   the  following  observations  on 


696  HEALD    V.    KENWOKTHY.  [cHAP.  V. 

Kymer  v.  Suwercropp ;  after  stating  the  marginal  note  and  facts  of 
that  case,  his  Lordship  says,  "  The  objection,  however,  was  not  that 
the  money  was  paid  before  it  was  due,  but  that  it  never  was  paid  at 
all  according  to  the  contract.  The  case  therefore  does  not  involve  the 
principle  in  support  of  which  it  has  so  frequently  been  cited." 

Cleasby  was  not  called  upon  to  reply. 

Pollock,  C.  15.  I  am  of  opinion  that  tlie  plea  is  bad.  It  comes 
shortly  to  this.  A  person  employs  his  agent  to  purchase  goods  for 
him,  with  authority  to  pledge  his  credit.  The  agent  does  so,  and  thus 
creates  a  debt ;  and  1  agree  with  the  remark  made  by  my  Brother 
Parke,  that  all  the  cases  in  which  the  principal  has  been  held  to  be 
discharged,  are  cases  in  which  the  seller  has  enabled  the  agent  to  mis- 
represent, or  where  the  agent  by  some  conduct  adopted  by  the  seller 
has  placed  his  principal  in  a  worse  situation  than  that  he  ought  to  be 
in.  This  plea  contains  nothing  of  that  sort.  It  merely  states  that  the 
plaintiffs  treated  Taylor  as  the  principal,  and  that  the  defendant  bona 
fide  settled  with  him. 

Parke,  B.  I  am  of  the  same  opinion.  The  plea  simply  states,  that, 
after  the  contract  was  entered  into  between  the  plaintiffs  and  a  third 
party,  the  agent  of  the  defendant,  under  circumstances  which  rendered 
the  defendant  liable  upon  it,  the  latter  paid  the  agent.  I  am  of  opinion 
that  this  is  no  defence  to  the  action.  It  is  clear,  that,  if  a  person 
orders  an  agent  to  make  a  purchase  for  him,  he  is  bound  to  see  that 
the  agent  pays  the  debt ;  and  the  giving  the  agent  money  for  that  pur- 
pose does  not  amount  to  payment,  unless  the  agent  pays  it  accordingly. 
But  there  are  no  doubt  cases  and  dicta^  which,  unless  they  be  under- 
stood with  some  qualification,  afford  ground  for  the  position  taken  by 
the  counsel  for  the  defendant.  First,  there  is  the  dictum  of  Baylej-, 
J.,  in  Thomson  v.  Davenport,  where  that  learned  judge  lays  down  the 
rule,  that  "  if  the  agent  does  make  himself  personall}-  liable,  it  does 
not  follow  that  the  principal  ma}'  not  be  liable  also,  subject  to  this 
qualification,  that  the  principal  shall  not  be  prejudiced  by  being  made 
personally  liable,  if  the  justice  of  the  case  is  that  he  should  not  be  per- 
sonally liable."  And  he  then  proceeds  to  say,  "  If  the  principal  has 
paid  the  agent,  or  if  the  state  of  accounts  between  the  agent  here  and 
the  principal  would  make  it  unjust  that  the  seller  should  call  on  the 
principal,  the  fact  of  payment  or  such  a  state  of  accounts  would  be  an 
answer  to  an  action  brought  b}'  the  seller,  where  he  had  looked  to  the 
responsibility  of  the  agent."  The  expression,  "  make  it  unjust,"  is 
very  vague  ;  but  if  rightly  understood,  what  the  learned  judge  said  is, 
no  doubt,  true.  If  the  conduct  of  the  seller  would  make  it  unjust  for 
him  to  call  upon  the  buyer  for  the  money  ;  as,  for  example,  where  the 
principal  is  induced  by  the  conduct  of  the  seller  to  pa}'  his  agent  the 
money  on  the  faith  that  the  agent  and  seller  have  come  to  a  settlement 
on  the  matter,  or  if  any  representation  to  that  effect  is  made  by  the 
seller  either  by  words  or  conduct,  the  seller  cannot  afterwards  throw 
off  the  mask  and  sue  the  principal.    It  would  be  unjust  for  him  to  do  so. 


SECT,  v.]  HEALD   V.    KENWORTHY.  697 

But  I  think  that  there  is  no  case  of  this  kind  where  tlie  plaintiff  has 
been  precluded  from  recovering,  unless  he  has  in  some  way  contributed 
either  to  deceive  the  defendant  or  to  induce  him  to  alter  his  position. 
This  was  the  ground  of  the  decision  in  Wyatt  v.  The  Marquis  of  Hert- 
ford, where  the  seller  took  the  security  of  the  agent  unknown  to  the 
principal,  and  gave  the  agent  a  receipt  as  for  the  money  due  from  the 
principal,  in  consequence  of  which  the  principal  dealt  differently  with 
his  agent  on  the  faith  of  such  receipt,  and  it  was  properly  held  that 
the  seller  could  not  sue  the  principal.  80  in  the  case  put  by  Lord  Ellen- 
borough,  C.  J.,  in  Kymer  v.  Suwercropp,  the  observations  of  that 
learned  judge  are  perfectly  correct ;  for  the  fact  of  the  seller's  allowing 
the  time  for  payment  to  elapse  might  afford  evidence  of  deceit  on  his 
part,  and  of  his  having  thereby  induced  the  principal  to  pay  the  agent. 
Neither  does  tlie  case  of  Smyth  v.  Anderson,  nor  the  elaborate  judg- 
ment of  my  Brother  Maule,  contain  anything  at  variance  with  the 
principle  I  have  stated.  He  adopts  the  proposition  expounded  by 
Bay  ley,  J.,  that  the  seller  cannot  recover  against  the  principal,  if  it 
be  unfair  for  him  to  do  so.  In  Smyth  c.  Anderson,  which  contains  a 
good  illustration  of  this  principle,  the  agent  purchased  goods  on  ac- 
count of  his  principal,  who  resided  abroad  ;  but  at  the  time  of  the  pur- 
chase, although  he  did  not  inform  the  seller  who  his  principal  was,  the 
invoice  stated  that  the  goods  "  were  brought  on  account  of  B."  the 
principal.  The  seller  drew  certain  bills  of  exchange  on  the  agent, 
who  became  insolvent  before  the  bills  arrived  at  maturity'.  The  prin- 
cipal, after  having  received  advice  of  the  purchaser,  and  of  the  accept- 
ance of  the  bills  In*  the  agent,  made  large  remittances  on  account  of 
the  goods  to  the  agent,  who  at  the  time  of  his  stoppage  was  largely 
indebted  to  his  principal.  JNIy  Brother  Maule  sa3-s,  the  court  were  of 
opinion  that  under  such  circumstances  it  was  unfair  and  unjust  to 
allow  the  seller  to  receive  the  value  of  the  goods  from  the  principal. 
I  think  that  there  is  no  authority  for  saying  that  a  payment  made  to 
the  agent,  as  in  this  case,  precludes  the  seller  from  recovering  from  the 
principal,  unless  it  appears  that  he  has  induced  the  principal  to  believe 
that  a  settlement  has  been  made  with  the  agent.  There  is  no  aver- 
ment of  that  kind  here,  and  consequently  the  plaintiffs  are  entitled  to 
recover. 

Alderson,  B.  I  am  of  the  same  opinion.  It  is  clear  that  the  de- 
fendant, who  is  the  principal  in  the  transaction,  authorized  the  agent 
to  contract  the  debt  on  his  account ;  the  defendant  afterwards  paid  his 
agent  mone}',  which,  however,  he  did  not  pay  over  to  the  plaintiffs. 
Now  tlie  defendant  i?  not  excused  from  seeing  that  the  plaintiffs  are 
paid,  unless  the  latter  by  their  acts  induced  the  defendant  to  make  the 
payment  to  their  agent.  AY  here  the  seller  trusts  the  agent  only,  and 
says  that  he  will  consider  him  as  tlie  only  party  liable,  the  agent  alone 
is  responsible,  and  the  seller  cannot  proceed  against  the  principal. 
But  there  must  be  some  act  on  the  part  of  the  creditor  to  warrant  us 
in  saying  that  the  paj'ment  by  the  debtor  to  his  agent  is  to  be  treated 


698  PRIESTLY   V.   FEKNIE.  [CHAP.  V. 

as  a  payment  to  the  creditor.  Where  a  creditor  b^-  his  conduct  in- 
duces the  debtor  to  pa}-  a  third  party,  and  thereby  alters  his  debtor's 
position,  it  would  be  unjust  to  call  upon  the  debtor  to  pay  the  amount 
of  the  debt  to  the  creditor.  But  there  is  nothing  of  that  sort  in  this 
case,  and  consequently  the  defendant  is  not  discharged. 

Judgment  for  the  plaintiffs.^ 


PRIESTLY   V.    FERNIE   and   another. 

Exchequer.     1865. 

[3  H.  cj-  (7.  977.] 

Declaration  by  the  plaintiff  as  secretary  of  the  Melbourne  Gas 
Company-.  For  that  Daniel  Kavanagb,  master  of  the  vessel  called 
"  The  Queen  of  Commerce,"  for  a  voyage  of  the  said  vessel  from  the 
port  of  Liverpool  to  Hobson's  Bay,  Port  Phillip,  signed  the  following 
bill  of  lading  :  — 

"  Shipped  in  good  order  and  condition,  except  chips  and  sand-cracks, 
by  Edmund  Thompson,  &c.,  agent  for  Harper  and  Moore,  in  or  upon 
the  good  ship  or  vessel  called  '  The  Queen  of  Commerce,'  whereof 
Kavanagh  is  master  for  this  present  voyage,  and  now  lying  in  the  port 
of  Liverpool  and  bound  to  Hobson's  Ba}',  Port  Phillip,  264  retorts, 
being  marked  and  numbered  and  enumerated  as  per  margin,  and  are 
to  be  delivered  in  the  like  order  and  condition,  except  chips  and  sand- 
cracks,  or  breakage  arising  from  any  cause  save  improper  stowage, 
and,  subject  to  the  undermentioned  clauses,  from  the  ship's  tackle  at 
Hobson's  Bay  or  railway  pier  (all  and  every  the  dangers  and  accidents 
of  the  seas,  fire  and  navigation  of  whatsoever  nature  or  kind  excepted), 
unto  the  Melbourne  Gas  Company,  or  their  assigns,  freight  for  the  said 
goods  being  payable  in  Melbourne  as  per  margin,  with  primage  and 
average  accustomed.  In  witness  whereof  the  master  of  the  said  ship 
or  vessel  hath  affirmed  to  three  bills  of  lading,  all  of  this  tenor  and 
date,  one  of  which  bills  being  accomplished  the  rest  to  stand  void." 
(Then  followed  other  provisions,  not  material  to  the  present  question). 
Averments  :  That  the  said  Company,  by  their  agents  in  that  behalf, 
shipped  and  delivered  such  goods  as  are  specified  in  the  said  bill  of 
lading  to  the  defendants,  and  the}'  accepted  and  received  of  and  from 
the  said  Company  the  same  on  board  the  said  vessel  in  such  order  and 
condition  as  are  mentioned  in  the  said  bill  of  lading,  to  be  by  the  de- 
fendants conveyed  in  the  said  vessel  to  such  place  and  for  such  purpose, 
and  subject  to  such  terms  and  conditions  as  are  in  the  said  bill  stated 
and  contained ;  and  the  said  vessel  completed  the  said  voyage,  and 

'  Martin,  B.,  had  left  the  court  during  the  argument.  —  Rep. 
See  Macfarlane  v.  Giannacopulo,  3  H,  &  N.   860  (1858);  Smethurst  v.  Mitchell, 
1  E-  &  E.  622  (1859).— Ed. 


SKCT.  v.]  PKIESTLY   V.   FERNIE.  699 

everything  has  been  done  and  happened  and  all  times  elapsed  requisite 
to  enable  the  said  Compan}'  to  have  all  the  said  terms  observed  and 
performed,  and  the  said  goods  delivered  to  the  said  Company  at  the 
place  in  the  said  bill  of  lading  specified  in  that  behalf,  and  in  the  order 
and  condition  contracted  for,  and  to  entitle  the  plaintiff  suing  as  afore- 
said to  recover  in  this  action  in  respect  of  the  matters  in  this  count 
stated.  —  Breach  :  That  the  defendants,  although  not  i)revented  by  the 
said  excepted  dangers,  accidents,  causes,  matters  or  things,  or  an}"  of 
them,  failed  to  deliver  the  said  goods  to  the  said  Company-  in  the  order 
and  condition  contracted  for,  &c. 

Plea.  That  the  plaintiff  as  such  secretary  as  in  the  declaration  al- 
leged, and  on  behalf  of  the  said  Company,  heretofore,  in  the  Supreme 
Court  of  Melbourne,  in  the  colony  of  Victoria,  then  having  jurisdiction 
in  that  behalf,  impleaded  the  said  Daniel  Kavanagh  in  the  declaration 
mentioned,  as  and  being  the  master  of  the  said  ship,  and  signing  the 
said  bill  of  lading,  for  the  same  identical  causes  of  action  as  in  the 
declaration  alleged,  and  such  proceedings  were  thereupon  had  in 
the  said  court  that  the  plaintiff  as  such  secretarj'  recovered  against  the 
said  Daniel  Kavanagh  £140  3s.  for  the  said  cause  of  action,  and  his 
costs  of  suit  in  tliat  behalf;  and  afterwards  the  plaintiff,  as  such  secre- 
tar}-  as  aforesaid  and  on  behalf  of  the  said  Company,  in  the  Court  of 
Exchequer  of  Pleas,  Westminster,  impleaded  the  said  Daniel  Kavanagh 
for  and  in  respect  of  and  upon  the  said  judgment  so  recovered  as  afore- 
said, and  such  proceedings  were  thereupon  had  in  that  action  that  the 
plaintiff  afterwards,  b}"  the  judgment  of  the  said  last  mentioned  court, 
recovered  against  the  said  Daniel  Kavanagh  ^288  lOs.  lOd.  and  his 
costs  of  suit  in  that  behalf,  and  after  the  recover}'  of  the  said  last  men- 
tioned judgment,  the  plaintiff  for  having  satisfaction  thereof,  caused  to 
be  dul}'  issued  out  of  the  said  Court  of  Exchequer  of  Pleas  a  writ  of 
ca.  sa.  upon  the  said  judgment,  and  by  virtue  of  which  said  writ  the 
said  Daniel  Kavanagh  was  before  this  suit  dulj-  taken  in  execution  at 
the  suit  of  the  plaintiff,  and  was  kept  and  detained  in  custod}"  to  satisfy 
the  plaintiff  in  the  said  action  ;  and  the  defendants  say  that  the}'  are 
being  sued  in  this  action  in  respect  of  the  said  Daniel  Kavanagh  having 
signed  the  said  bill  of  lading  as  master  of  the  said  ship  on  behalf  of  the 
defendants  as  owners  thereof,  and  that  they  are  not  otherwise  liable  in 
this  action. 

Replication.  That  the  said  Daniel  Kavanagh,  being  a  prisoner 
under  the  said  writ,  became  bankrupt  within  the  meaning  of  the 
statutes  in  force  concerning  bankrupts,  and  thereupon  was  discharged 
from  custodv  under  the  said  writ  of  ca.  sa.,  without  the  consent  of  the 
plaintiff,  by  act  of  law  under  and  by  virtue  of  the  statutes  then  in  force 
relating  to  bankrupts  ;  and  that  such  proceedings  were  had  in  the  mat- 
ter of  the  said  bankruptcy  that  the  said  Daniel  Kavanagh  afterwards 
and  before  this  suit  duly  obtained  an  order  of  discharge  under  the  said 
statutes,  and  was  thereby  discharged  of  and  from  the  said  judgments, 
and  each  of  them  ;  and  the  said  judgments  are  and  each  of  them  is 


700  PRIESTLY    V.    FERNIE.  [CHAP.  V. 

wholly  unsatisfied,  and  the  plaintiff  had  not  at  any  time  before  the  re- 
covery of  the  said  judgment  in  the  said  Court  of  Exchequer,  or  before 
the  said  Daniel  Kavanagh  obtained  his  order  of  discharge  as  aforesaid, 
notice  or  knowledge  that  the  said  bill  of  lading  and  contract  was  made 
b^-  the  defendants  or  any  of  them. 

The  plaintiff  also  demurred  to  the  plea. 

Rejoinder.  That,  after  the  said  Daniel  Kavanagh  became  and  was 
bankrupt  as  in  the  said  replication  mentioned,  and  before  the  com- 
mencement of  this  suit,  the  plaintiff  was  admitted  to  prove,  and  proved, 
in  respect  of  the  said  judgment  so  recovered  in  the  said  Court  of 
Exchequer  as  aforesaid,  against  the  estate  of  the  said  Daniel  Kava- 
nagh, under  the  said  bankruptc}^  for  the  amount  due  upon  the  said 
judgment. 

The  defendant  also  demurred  to  the  replication. 

Qua  in,  agreed  for  the  plaintiff. 

B.  G.  Williams  (Aspinull  with  him)  in  support  of  the  plea. 

Cur.  adv.  vult. 
The  judgment  of  the  court  was  now  delivered  by 
Bramwell,  B.  We  are  of  opinion  our  judgment  should  be  for  the 
defendant.  If  this  were  an  ordinary-  case  of  principal  and  agent,  where 
the  agent,  having  made  a  contract  in  his  own  name,  has  been  sued  on 
it  to  judgment,  there  can  be  no  doubt  that  no  second  action  would  be 
maintainable  against  the  principal.  The  very  expression  that  where  a 
contract  is  so  made  the  contractee  has  an  election  to  sue  agent  or  prin- 
cipal, supposes  he  can  only  sue  one -of  them,  that  is  to  say,  sue  to 
judgment.  For  it  may  be  that  an  action  against  one  might  be  discon- 
tinued and  fresh  proceedings  be  well  taken  against  the  other.  Further, 
there  is  abundance  of  authority  to  show  that  where  the  situation  of  the 
principal  is  altered  by  dealings  with  the  agent  as  principal,  the  former 
is  no  longer  subject  to  an  action.  But  this  is  the  case  here.  The  de- 
fendants may  or  may  not  be  liable  to  indemnify  the  master  in  respect 
of  his  costs  or  his  imprisonment.  But  they  are  clearly  liable  to  him  or 
his  estate,  in  respect  of  the  damages  recovered  against  him,  and  pro- 
ceedings might  have  been  taken  against  them  as  soon  as  judgment  was 
recovered  against  the  master,  and  before  any  payment  by  or  execution 
against  him.  They  are  now  therefore  under  a  liability  to  the  master  or 
his  estate  to  the  extent  of  the  whole  claim,  and  yet  it  is  sought  to 
bring  them  under  a  fresli  liability  for  that  to  the  plaintiffs. 

If  this,  then,  were  the  ordinary  case  we  have  mentioned,  there  could 
be  no  doubt  on  the  subject.  But  it  is  said  that  the  liability  of  the  mas- 
ter of  a  vessel  acting  for  his  owners  and  their  liability  where  he  acts 
for  them  is  different  from  the  liabihties  in  ordinary  cases  of  principal 
and  agent,  and  that  first  one  and  then  the  other  may  be  sued.  The 
plaintiff's  argument,  then,  viz.,  that  the  present  case  is  anomalous,  is 
exceptional.  When  that  is  contended  for  strong  reason  ought  to  be 
given  for  it.  What  is  given  here  ?  It  is  certain  tliat  the  master's  lia- 
liility  is  founded  on  the  same  considerations  as  that  of  an  ordinary 


SECT,  v.]  PEIESTLY   V.   FERNIE.  701 

ageut,  viz.,  he  makes  the  contract  in  his  own  name.  Rich  v.  Coe,  2 
Cowp.  636,  Story  on  Agency,  §  296.  But  it  is  said  that  for  purposes 
of  commerce  it  is  convenient  both  master  and  owner  should  be  suable. 
So  it  is,  but  why  to  the  extent  contended  for  more  than  in  an\-  other 
case  of  principal  and  agent?  It  might  be  hard  to  make  a  person  who 
deals  with  the  master  run  after  the  owner  to  sue  him ;  but  why,  if  he 
sues  the  master,  should  he  afterwards  sue  the  owner  merely  because  it 
IS  very  right  he  should  be  able  to  sue  the  captain  or  owner?  In  reality 
no  reason  can  be  given  for  the  distinction  attempted  between  this  and 
other  cases  of  principal  and  agent.  It  is  not  said  none  could  be  given 
why  in  all  cases  of  principal  and  agent  both  should  be  suable,  but  that 
there  is  no  particular  reason  applicable  to  the  masters  and  captains  of 
ships. 

The  case,  then,  must  rest,  not  on  principle,  but  on  authority,  and 
that  authority  is  limited  to  a  passage  in  Storj'  on  Agency.  It  is  re- 
markable that  he  is  of  opinion  that  there  was,  b}'  the  Roman  law,  an 
option  to  sue  either,  but  not  both.  If  so,  what  he  lays  down  is  i)eculiar 
to  "  our  law,"  and  doubly  anomalous.  He  gives  no  reason  for  it,  but 
cites  2  Livermore  on  Agency,  267.  He  (Story)  says  the  second  action 
ma}-  be  maintained,  unless  "  in  the  first  action  he  has  obtained  com- 
plete satisfaction  of  his  claim."  On  reference,  however,  to  Livermore, 
we  say  it  with  great  respect,  he  really  says  nothing  in  support  of  such 
a  proposition.  What  he  says  is  :  "  Masters  of  merchant  vessels  are 
personally  answerable  upon  the  contracts  made  b}-  them  in  relation  to 
the  employment  of  the  ship,  to  repairs,  or  to  supplies  furnished  for  the 
ship's  use.  For  the  law  gives  to  the  merchant  who  contracts  with  the 
master  a  twofold  remcd}-  against  the  owner  and  against  the  master." 
For  this  he  cites  Rich  y.  Coe,  2  Cowp.  636,  which,  though  a  very  ques- 
tionable decision,  justifies  Livermore's  propositions,  but  not  Stor^-'s. 
It  only  decides  that  the  owners  are  liable  upon  an  order  by  the  master 
for  necessaries,  though  without  their  authority.  It  is  true  Lord  Mans- 
field says  the  master,  the  owner  and  the  ship  are  trusted,  but  he  sa^-s 
nothing  to  support  what  is  contended  for.  It  is  remarkable  Story  does 
not  cite  this  authority  so  cited  by  Livermore.  Melius  est  petere  foyites 
quam  sectari  rivulos. 

Then  really  there  is  no  authority  for  this  contention,  while  there  is 
much  the  other  way  in  the  silence  of  all  other  writers  on  the  subject. 
It  is  not  suggested  in  Abbott  on  Shipping,  p.  91,  nor  in  Kent's  Com- 
mentaries (see  3  Kent,  161),  nor  in  Maude  and  Pollock  on  Shipping, 
p.  102,  nor  in  Maclachan,  p.  128,  nor  in  Parsons  on  Maritime  Law, 
vol.  1,  p.  378.  Thei'e  is  one  powerful  consideration  the  other  wa}',  viz., 
if  the  master  contracts  under  seal  no  action  lies  on  the  contract  against 
the  owners.  Why?  If  the  master  makes  two  contracts,  one  for  him- 
self and  one  for  his  owners,  wh}'  should  his  contract,  being  under  seal, 
prevent  the  owners  being  sued  on  that  which  the  master  has  made  for 
them?  Nothing.  But  if  he  makes  one  contract  only,  as  in  ordinary 
cases  where  the  agent  contracts  in  his  own  name,  which  the  merchant 


702  KINGSLEY    V.   DAVIS.  [CIIAP.  V. 

maj-  say  binds  him  because  made  in  his  name,  or  binds  his  owners 
because  made  for  tliem,  then  the  decisions  are  iuteUigible  and  the  ex- 
pression is  correct,  the  owners  are  not  hable  l)ecause  of  a  technical 
rule,  that  a  contract  under  seal  cannot  bind  a  person  not  executing,  and 
not  giving  authority  under  seal  for  its  making.  See  Abbott  on  Shipping, 
ed.  1856,  p.  169.  Leslie  v.  Wilson,  3  B.  &  B.  171,  is  not  opposed  to 
this.     Therefore  we  give  judgment  for  the  defendant. 

Judgment  for  the  defetidant.^ 


KINGSLEY  AND  ANOTHER  V.   CHARLOTTE  DAVIS. 
Supreme  Judicial  Court  op  Massachusetts.     1870. 

[104  Muss.  178.] 

Contract  b}-  brokers  for  commissions;  submitted  to  the  judgment  of 
the  court  on  these  agreed  facts  :  — 

"The  plaintiffs  on  November  12,  1868,  procured  a  purchaser  for  a 
house  belonging  to  the  defendant,  who  is,  and  was  at  that  time,  a  mar- 
ried woman,  and  held  the  legal  estate  in  said  house  in  her  own  right. 
Previously,  John  J.  Davis,  her  husband,  in  his  own  behalf,  and  also 
acting  for  her  and  in  her  presence,  requested  the  plaintiffs  to  find  a 
purchaser  for  the  house  ;  and  in  the  conversation  between  the  parties, 
at  that  time,  the  defendant  also  requested  the  plaintiffs  to  find  a  pur- 

1  In  Kendall  v.  Hamilton,  4  App.  Cas.  504,  514-515  (H.  L.  1879),  Lord  Cairns 
said :  "  Now,  I  take  it  to  be  clear  that,  where  an  agent  contracts  in  his  own  name  for 
an  nndisclosed  principal,  the  per.son  with  whom  he  contracts  may  sue  the  agent,  or  he 
may  sue  the  principal ;  but  if  he  sues  the  agent  and  recovers  judgment,  lie  cannot 
afterwards  sue  the  princijjal,  even  although  the  judgment  does  not  result  in  satisfac- 
tion of  the  debt.  If  any  autho  ity  for  this  proposition  is  needed,  the  case  of  Priestly 
11.  Fernie  may  be  mentioned.  But  the  reasons  why  this  must  be  the  case  are,  I  think, 
obvious.  It  would  be  clearly  contrary  to  every  principle  of  justice  that  the  creditor 
who  had  seen  and  known  and  dealt  with  and  given  credit  to  the  agent,  should  be 
driven  to  sue  the  principal  if  he  does  not  wish  to  sue  him,  and,  on  the  other  hand,  it 
would  be  equally  contrary  to  justice  that  the  creditor  on  discovering  the  principal,  who 
really  has  had  the  benefit  of  the  loan,  should  be  prevented  suing  him  if  he  wishes  to 
do  so.  But  it  would  be  no  less  contrary  to  justice  that  the  creditor  should  be  able  to 
sue  first  the  agent  and  then  the  principal,  when  there  was  no  contract,  and  when  it 
was  never  the  intention  of  any  of  the  parties  that  he  should  do  so.  Again,  if  an  action 
•were  brought  and  judgment  recovered  against  the  agent,  he,.the  agent,  would  have  a 
right  of  action  for  indemnity  against  the  principal,  while,  if  the  principal  were  liable 
also  to  be  sued,  he  would  be  vexed  with  a  double  action.  Farther  than  this,  if  actions 
could  be  brought  and  judgments  recovered,  fir.st  against  the  agent  and  afterwards 
against  the  principal,  you  would  have  two  judgments  in  existence  for  the  same  debt  or 
cau.se  of  action  ;  they  might  not  necessarily  be  for  the  same  amounts,  and  there  might 
be  recoveries  had,  or  liens  and  charges  created,  by  means  of  both,  and  there  would  be 
no  mode,  upon  the  face  of  the  judgments,  or  by  any  means  short  of  a  fresh  proceed- 
ing, of  showing  that  the  two  judgments  were  really  for  the  same  debt  or  cause  of 

action,  and  that  sati.sfaction  of  one  was,  or  would  be,  satisfaction  of  both." 

With  the  principal  case  compare  Maple  v.  Railroad  Company,  40  Ohio  St.  313 

(188.3).— Ed. 


SECT,  v.]  KINGSLEY    V.    DAVIS.  703 

chaser.  On  November  20,  1868,  the  defendant  executed  a  deed  of  the 
house  to  the  purchaser  procured  b\'  the  plaintifTs,  her  husband  joining 
therein.  The  plaintiffs,  at  the  time  they  performed  said  services,  sup- 
posed that  the  legal  title  to  the  house  was  in  John  J.  Davis  ;  and  the}' 
charged  him  therefor  on  their  books  of  account.  On  December  14,  1868, 
they  commenced  an  action  of  contract  against  him  in  tlie  municipal 
court  for  the  city  of  Boston,  in  which  the}'  declared  for  the  same  cause 
of  action  for  which  they  bring  the  present  action.  In  said  action,  on 
December  29,  he  was  defaulted  ;  and  on  March  18,  1869,  the  plaintiffs, 
since  said  default,  being  informed  of  all  the  facts,  and  in  particular  of 
the  fact  that  the  house  belonged  to  the  present  defendant  at  the  time 
they  procured  the  purchaser,  caused  judgment  to  be  entered  against 
said  John  J.  Davis  in  said  action,  and  subsequently  took  out  execution 
against  him.  Said  judgment  now  remains  in  force,  and  unsatisfied. 
After  taking  said  judgment  and  execution,  the  plaintiffs  brought  the 
present  action.'' 

G.  Morrill,  for  the  plaintiffs. 

J.  Latlirop,  for  the  defendant. 

MoRTOx,  J.  We  are  unable  to  see  how,  in  any  aspect  of  the  facts  of 
this  case,  the  plaintiffs  can  recover.  There  is  no  evidence  that  the 
plaintiffs  performed  the  services  sued  for  upon  the  credit  of  the  defend- 
ant, or  that  she  entered  into  a  several  contract  with  them.  The  facts 
stated,  if  thej-  show  an}*  contract  by  the  defendant,  show  a  joint  con- 
tract b}'  herself  and  her  husband.  Upon  such  a  contract  the  plaintiffs 
could  not  maintain  this  action.  The  judgment  which  he  has  taken 
against  one  of  the  joint  debtors  is  a  bar  to  any  future  action  against  the 
other.     Ward  v.  Johnson,  13  Mass.  148.    Gibbs  v.  Bryant,  1  Pick.  118. 

But  the  true  inference  to  be  drawn  from  the  facts  stated  undoubtedly 
is,  that  the  plaintiffs  contracted  with,  and  gave  credit  to,  John  .J.  Davis  ; 
and  they  now  claim  that  he  was  acting  as  the  agent  of  the  defendant 
and  that  the}-  gave  him  credit  in  ignorance  of  this  fact.  If  we  assume 
that  he  was  acting  as  her  agent  in  contracting  with  the  plaintiffs,  3'et 
there  is  an  insuperable  obstacle  to  their  right  to  maintain  this  action. 
The  general  principle  is  undisputed,  that,  when  a  person  contracts  with 
another  who  is  in  fact  an  agent  of  an  undisclosed  principal,  he  may, 
upon  discover}'  of  the  principal,  resort  to  him,  or  to  the  agent  with 
whom  he  dealt,  at  his  election.  But  if,  after  having  come  to  a  knowl- 
edge of  all  the  facts,  he  elects  to  hold  the  agent,  he  cannot  afterwards 
resort  to  the  principal.  In  the  case  at  bar,  it  is  admitted  that  the 
plaintiffs,  after  all  the  facts  became  known  to  them,  obtained  a  judg- 
ment against  John  J.  Davis  upon  the  same  cause  of  action  for  which 
this  suit  is  brought.  We  are  of  opinion  that  this  was  conclusive  evi- 
dence of  an  election  to  resort  to  the  agent,  to  whom  the  credit  was 
originally  given,  and  is  a  bar  to  this  action  against  the  principal. 
Kaymond  v.  Crown  &  Eagle  Mills,  2  Met.  319. 

Judgment  for  the  defendant} 

^  Compare  Beynier  v.  Bonsall,  79  Pa.  298  (1875).  —  Ed. 


704  ARMSTRONG   V.    STOKES.  [CHAP.  T 


ARMSTRONG  v.   STOKES    and  others. 

Queen's   Bench.     1872. 

[L.  R.  7  Q.  B.  598.] 

Declaration  for  goods  sold  and  delivered,  goods  bargained  and 
sold,  work  and  labor,  and  on  accounts  stated. 

Pleas:  1.  Never  indebted;  2.  Payment;  3.  As  to  the  sale  of  the 
goods,  a  special  plea. 

Issues  joined  on  all  the  pleas  ;  demurrer  to  third  plea,  and  joinder. 

At  the  trial  of  the  issues  of  fact  before  Mellor,  J.,  at  the  Man- 
chester Spring  Assizes,  1871,  a  verdict  passed  for  the  plaintiff,  with 
leave  to  move  to  enter  a  verdict  for  the  defendants,  the  court  to  have 
power  to  draw  inferences  of  fact. 

A  rule  was  obtained  accordingl}',  on  the  ground  that  there  was  no 
evidence  of  a  contract  between  the  plaintiff  and  the  defendants ;  and 
also  on  the  ground  that,  under  the  circumstances,  the  plaintiff  had  no 
right  to  come  upon  the  defendants  for  payment. 

Holker^  Q.  C,  and  J.  Edwards  showed  cause. 

Herschell,  Q.  C,  and  Crompton^  in  support  of  the  rule. 

Cur.  adv.  vult. 

The  judgment  of  the  court  (Blackburn,  Mellor,  and  Lush,  JJ.) 
was  delivered  b}' 

Blackburn,  J.  This  was  an  action  for  goods  sold  and  delivered. 
The  third  plea  was  demurred  to,  and  issue  was  also  taken  upon  it. 
The  issue  in  fact  was  tried  before  my  Brother  Mellor,  when  the  verdict 
was  entered  for  the  plaintiff,  with  leave  to  move  to  enter  the  verdict 
for  the  defendants.  A  rule  was  accordingly  obtained,  against  which 
cause  was  shown  at  the  sittings  after  this  term  before  my  Brothers 
Mellor,  Lush,  and  myself,  and  at  the  same  time  the  demurrer,  was 
argued.  We  thought  the  plea  was  good,  and  gave  judgment  at  once 
for  the  defendant  on  the  demurrer ;  ^  but  on  the  rule  the  question  was, 
whether  the  substance  of  the  plea,  that  is,  enough  of  it  to  constitute  a 
defence,  had  been  proved,  and  in  order  to  determine  that  it  is  neces- 
sar}'  to  state  what  the  evidence  at  the  trial  was. 

It  was  proved  that  Messrs.  J.  &  O.  Ryder  &  Co.  were  commission 
merchants  carrying  on  business  at  Manchester,  sometimes  for  them- 
selves, and  sometimes  acting  in  pursuance  of  orders  from  constituents. 

1  The  plea  stated  the  facts  very  much  as  they  are  stated  in  the  judgment ;  but  it 
alTleged  in  addition  that  Kyder  &  Co.  were  indebted  to  the  defendants  after  the  11th 
of  Angnst  up  to  their  stoppage,  and  that  the  plaintiff  negligently  let  the  payment 
from  Ryder  &  Co.  to  him  stand  over  a  long  time  after  the  2.5th  of  August,  when  it 
became  due,  and  permitted  them  to  retain  the  money  in  their  hands  till  they  stopped 
payment.  The  demurrer  was  not  argued,  the  plaintiff's  counsel  at  once  yielding  to 
the  expression  ^f  '■'^a  opinion  of  the  court  that  the  plea  was  good.  —  Rep. 


SECT,  v.]  ARMSTRONG   V.    STOKES.  705 

The}'  were  not  brokers  professing  never  to  act  for  themselves.  The 
plaintiff,  who  was  a  merchant  at  Manchester,  had  had  previous  deal- 
ings with  Rj'der  &  Co.,  in  the  course  of  which  it  appeared  that  he  had 
never  inquired  whether  they  had  constituents  or  not.  All  former 
transactions  had  been  duly  settled  between  him  and  J.  &  O.  Ryder,  so 
that  the  question  had  never  become  material. 

On  the  15th  of  June,  1871,  the  plaintiff's  salesman  made  a  contract 
with  J.  &  O.  Ryder's  salesman,  which,  as  taken  down  in  the  plaintiflTs 
book,  was  as  follows:  "15th  June,  1871.  J.  &  O.  R3-der  &  Co., 
200  pieces  39-inch  17  square  shirtings,  75  yards  at  20s.  6c?.,  £205., 
1^  per  cent,  30  days."  The  meaning  of  this  was  explained  to  be  that 
the  shirtings  were  to  be  paid  for  thirty  days  after  delivery,  and  then 
with  a  deduction  of  1|  per  cent  from  the  nominal  price.  As  we 
understood  the  evidence,  this  is  an  ordinary  mode  of  dealing,  though 
the  more  usual  terms  in  the  Manchester  market  are  cash,  subject  to 
a  discount,  varying  according  to  the  rate  of  interest  and  the  agreement 
of  the  parties,  the  rate  at  this  time  being  about  2  or  2i  per  cent. 
When  the  agreement  is  for  cash  the  goods  are,  in  practice,  delivered 
without  actual  payment,  and  the  price,  less  the  discount,  is  paid  a  few 
days  afterwards,  generally  on  the  Friday  following,  that  being  the 
ordinary  pay-day.  AVhen  this  practice  is  pursued,  there  is  a  period 
during  which  the  seller  has  parted  with  his  vendor's  lien  before  receiv- 
ing the  money,  though  he  is  probably  not  bound  to  do  so,  as  where  he 
Las,  by  the  contract,  given  credit,  and  the  period  is  much  shorter  than 
where  credit  has  been  stipulated  for. 

On  the  24th  of  July  the  plaintiff  sent  the  goods,  which  were  gray, 
that  is,  unbleached  shirtings,  to  J.  &  O.  Ryder,  with  an  invoice,  debit- 
ing them  with  tlie  price  after  deducting  the  discount,  viz.  £205.  The 
period  of  thirty  days  would  elapse  on  the  23rd  of  August,  but,  J.  cSj 
O.  Ryder's  pa3"-day  being  Friday,  actual  payment  would  not,  had  all 
gone  right,  have  been  made  till  the  25th  of  August. 

On  the  24th  the  plaintiff  received  a  memorandum  from  J.  &  O. 
Ryder,  requesting  him  to  delay  applying  for  payment  till  the  following 
Friday,  September  1st.  Nevertheless,  his  salesman  did  call  upon  the 
25th,  but  was  refused  payment,  and  told  it  would  be  all  right  on  the 
next  Friday.  The  plaintiff  saw  in  the  newspaper  an  announcement 
of  the  death  of  one  of  the  partners  in  the  firm  of  J.  &  O.  Ryder,  and 
attributed  the  dela}'  to  this.  He  was,  to  use  his  own  phrase  in  his 
evidence,  considering  what  to  do,  but  had  done  nothing,  when,  on  the 
30th  of  August,  J.  &  O.  Ryder  &  Co.  stopped  payment. 

One  point  that  was  raised  for  the  defendants  may  as  well  be  disposed 
of  here.  We  think  that  if  the  plaintiff  had,  on  the  non-payment  by 
J.  &  O.  Ryder,  any  right  to  come  on  the  defendants,  the  taking  no 
active  step  before  the  30th  was  no  evidence  of  any  such  laches  as 
would  deprive  him  of  that  right. 

To  proceed  with  the  evidence.  It  was  not  pretended  on  either  side 
that  the  plaintiff  knew  before  the  30th  of  August  that  the  defendants 

4.5 


706  ARMSTRONG   V.   STOKES.  [CHAP.  V. 

had  anything  to  do  with  this  transaction,  so  as  to  afford  any  evidence, 
on  the  one  hand,  that  he  had  originally  parted  with  the  goods  on  the 
credit  of  the  defendants,  or,  on  the  other  hand,  that  he  had  elected  to 
give  credit  to  J.  &  O.  Ryder  to  the  exclusion  of  the  defendants.  But, 
after  the  stoppage  of  J.  &  O.  Ryder  &  Co.,  on  examining  their  books 
it  was  discovered  that  in  tbis  case  they  had  been  acting  as  commission 
merchants  for  the  defendants,  and  the  plaintiff's  case  was,  that,  under 
the  circumstances,  he  was  entitled  to  demand  payment  from  the 
defendants,  as  being  undisclosed  principals  of  J.  &  O.  Ryder  in  this 
transaction. 

The  evidence  as  to  this  was,  that  the  defendants  are  merchants  at 
Liverpool,  who  had  often  before  given  orders  to  J.  &  O.  R3  der,  some- 
times for  gray  and  sometimes  for  white  (that  is,  bleached)  shirtings. 
When  such  an  order  had  been  previously  given  for  white  shirtings, 
the  course  of  business  had  always  been  for  J.  &,  O.  Ryder  to  procure 
gray  shirtings,  and  then  to  have  those  gray  shirtings  bleached,  and 
when  they  were  bleached  to  dehver  them  to  the  defendants,  charging 
them  with  the  cost  of  the  gray  shirtings  and  of  the  bleaching,  with 
one  per  cent  commission  on  that  amount  for  placing  the  order,  and 
also  with  any  charges  for  packing,  &c.,  and  this  amount  the  defendants 
always  paid  to  J.  &  O.  Ryder.  As  the  defendants  knew  that  J.  &  O. 
Ryder  were  neither  manufacturers  nor  bleachers,  they  were,  of  course, 
aware  that  J.  &  O.  Ryder  must  have  procured  some  one  to  supply  the 
gray  cloths  and  some  one  to  bleach  them  ;  but  they  never  were,  in  any 
of  the  previous  transactions,  brought  into  communication  with  those 
who  supplied  the  goods  or  those  who  bleached  them,  nor  did  they  ever 
inquire,  nor  were  they  ever  told,  who  they  were. 

There  was  no  running  account  between  the  defendants  and  J.  &  O. 
Ryder,  but  the  defendants  almost  invariably  paid  on  each  transaction. 
It  was  stated  in  the  evidence  that  they  generally,  but  "not  quite 
always,"  paid  in  cash,  that  is,  as  already  explained,  on  the  pay-day 
after  the  goods  were  delivered  to  them. 

No  inquiry  was  made  on  either  side  as  to  the  nature  of  the  excep- 
tional cases  in  which  the  defendants  did  not  pay  casli.  Those  excep- 
tions might  have  thrown  light  on  the  nature  of  the  employment  of 
J.  &  O.  Ryder,  or  they  might  not. 

In  the  present  case  the  defendants  gave  a  verbal  order  to  J.  &  O. 
Ryder  for  bleached  shirtings.  Nothing  was  said  as  to  the  price  at 
which  they  were  to  be  procured,  which  was  therefore  left  to  the  dis- 
cretion and  honesty  of  J.  &  O.  Ryder ;  and  nothing  was  said  as  to  the 
mode  in  which  they  were  to  be  paid  for,  which  was,  therefore,  to  be  as 
usual.  In  consequence  of  this  order  J.  &  O.  Ryder's  manager  went 
to  the  plaintiff's  salesman.  The  manager  at  first  wished  to  buy  for 
cash,  but  wanted  discount  at  2\  per  cent.  Finally  they  agreed  to  split 
the  difference,  and  make  it  1^  per  cent  at  thirty  days.  All  this  was 
perfectly  bona  fide  between  them,  and  the  defendants  knew  nothing 
about  it. 


SECT,  v.]  ARMSTRONG   V.    STOKES.  707 

When  the  gray  shirtings  were  delivered  by  the  plaintiff  to  J.  &  O. 
Ryder  they  sent  them  to  the  bleacher,  who,  as  usual,  cut  each  piece 
in  two  ;  and  having  received  from  J.  &  O.  Ryder  2U()  pieces  of  gra}- 
clolh,  sent  back  to  them  400  pieces  of  white  cloth.  Ryder  &  Co.  sent 
on  these  400  pieces  of  white  cloth  to  tiie  defendants,  with  an  invoice 
dated  the  2nd  of  August,  headed  as  follows:  "Invoice  of  ten  pack- 
ages of  goods  purchased  and  forwarded  per  carrier  to  Liverpool,  by 
order  and  on  account  of  Messrs.  Bates,  Stokes,  &  Co.  there"  (the 
defendants)  "  b\'  the  undersigned,"  &c.  The  defendants  were  in  this 
invoice  charged  with  the  actual  money  which  ought  to  have  been  paid 
to  the  plaintiff  as  the  price  of  the  goods,  viz.,  £205  less  1  i  per  cent  dis- 
count, the  actual  charge  of  the  bleaching,  one  per  cent  on  the  amount 
of  those  two  sums  as  commission,  and  the  amount  of  some  pack- 
ing charges,  making  in  all  £227  lO*-.  9d.  noted  as  being  due  the 
11th  of  August,  which  was  the  first  pay-day  after  the  goods  would  be 
received  in  Liverpool.  On  the  11th  of  August  the  defendants,  with 
perfect  bona  fides,  paid  J.  &  O.  Ryder  that  sum  of  £227  lO.s.  9f7. 

On  this  state  of  the  evidence,  Mr.  Herschell  took  three  points. 
Firsts  he  said  that  the  defendants  were  not  undisclosed  principals, 
employing  J.  &  O.  Ryder  as  agents  with  autliority  to  create  privity 
between  the  unknown  persons  wlio  sup[)lied  tlie  goods  and  the  de- 
fendants. Secondly^  that  even  if  they  were,  the  defendants,  having, 
before  the  plaintiff  heard  of  their  connection  with  the  matter  and 
before  they  heard  of  the  plaintiff,  honestly  and  in  the  ordinary  course 
of  business  paid  J.  &  O.  Ryder,  were  no  longer  liable  to  the  plaintiff. 
And  thirdl}',  that  the  plaintiff  had  by  laches  disentitled  himself  to  sue. 

It  was  admitted  that  all  that  was  sworn  was  honestly  sworn,  and 
neither  counsel  required  anything  to  be  left  to  the  juiy.  M}-  Brother 
Mellor  thereupon  directed  a  verdict  for  the  plaintiff,  with  leave  to 
move  to  enter  a  verdict  for  the  defendants,  the  court  to  have  power 
to  draw  inferences  of  fact. 

The  third  point  taken  was  disposed  of  at  once ;  but  the  other  two 
points  were  fullv  discussed,  and  the  authorities  brought  before  us. 
On  these  we  took  time  to  consider. 

The  first  point  depends  on  a  question  of  fact,  viz.,  what  was  the 
authority  really  given  to  J.  &  O.  Ryder  by  the  defendants  ?  It  is,  we 
think,  too  firmh'  established  to  be  now  questioned,  that,  where  a  per- 
son employs  another  to  make  a  contract  of  purchase  for  him,  he,  as 
principal,  is  liable  to  the  seller,  though  the  seller  never  heard  of  his 
existence,  and  entered  into  the  contract  solely  on  the  credit  of  the 
person  whom  he  believed  to  be  the  principal,  though  in  fact  he  was  not. 
It  has  often  been  doubted  whether  it  was  originalh*  right  so  to  hold ; 
but  doubts  of  this  kind  come  now  too  late :  for  we  think  that  it  is 
established  law  that,  if  on  the  failure  of  the  person  with  whom  alone 
the  vendor  believed  himself  to  be  contracting,  the  vendor  discovers 
that  in  realit}-  there  is  an  undisclosed  principal  behind,  he  is  entitled 
to  take  advantage  of  this  unexpected  godsend,  and  is  not  put  to  take 


70S  ARMSTRONG   V.    STOKES.  [CHAP.  V. 

a  dividend  from  the  estate  of  liim  with  whom  alone  he  believed  himself 
to  be  contracting,  and  to  whom  alone  he  gave  credit,  and  to  leave  the 
trustees  of  that  estate  to  settle  with  the  undisclosed  principal,  subject 
to  all  mutual  credits  and  equities  between  them.  He  may  recover  the 
price  himself  direct  from  the  principal,  subject  to  an  exception,  which 
is  not  so  well  established  as  the  rule,  and  is  not  ver}-  accurately  de- 
fined, viz.,  that  nothing  has  occurred  to  make  it  unjust  that  the  undis- 
closed principal  should  be  called  upon  to  make  the  pa3'ment  to  the 
vendor. 

We  have  first  to  consider  whether  we  should  draw  from  the  evidence 
the  inference  of  fact  that  the  defendants  were  principals,  so  as  to  bring 
the  case  within  the  rule,  so  that  if  the  price  had  not  been  paid  by  the 
defendants  to  Ryder  &  Co.  the  plaintiff  would  have  a  right  to  be  paid 
the  money  rather  than  look  to  the  trustees  of  the  estate  of  J.  &  O. 
Ryder,  This  depends  entirely  on  what  was  the  real  nature  of  the 
employment  of  J.  &  O.  Ryder  by  the  defendants.  The  defendants  not 
being  known  in  the  matter  at  all  to  the  plaintifl!',  there  is  no  room  for 
holding  them  bound  b}'  any  apparent  authority  given  to  J.  &  0.  Ryder. 
There  can  be  no  case  against  the  defendants  of  holding  them  out  as 
having  their  authority,  or  clothing  them  with  ostensible  authorit}',  to  a 
person  who  did  not  know  that  J.  &  O.  Ryder  had  any  principal  at  all. 
As  to  the  real  authority,  there  is  evidence  both  ways.  The  charge  of 
commission  is  conclusive  to  show  that,  to  some  extent,  there  was  a 
relation  of  principal  and  agent ;  the  defendants  were  entitled  to  have 
the  skill  and  diligence  of  J.  &  O.  Ryder  to  get  the  goods  as  cheaply 
as  they  could  ;  and  the  defendants  were  entitled  to  have  the  true  cost 
of  the  goods  debited  to  them  with  no  further  addition  than  the  charges 
and  the  commission.  Then  Ryder  &  Co.  did  not  engage  to  suppl}' 
the  goods  themselves  ;  they  only  undertook  to  find  persons  who  would. 
If  prices  had  risen  after  the  plaintiff  made  his  bargain,  and  the  plaintiff 
had  refused  to  go  on,  the  now  defendants  could  not  have  sued  J.  &  O. 
Ryder  for  this  ;  they  must  either  have  sued  the  now  plaintiff,  if  there 
is  privity  between  them,  or  perhaps  have  used  the  name  of  J.  &  O. 
Ryder,  as  their  trustees,  to  sue,  as  is  suggested  by  Kelly,  C.  B.,  in 
Mollett  i\  Robinson,  L.  R.  7  C.  P.  at  p.  119.  In  the  invoice  the  de- 
fendants are  not  charged  as  purchasers  from  J.  &  O.  Ryder,  but  are 
debited  for  goods  bought  by  tlieir  order  and  on  their  account.  Tliis 
form  is  also  evidence  in  favor  of  the  plaintiff.  But  none  of  these 
things  are  conclusive.  The  great  inconvenience  that  would  result  if 
there  were  privitj-  of  contract  established  between  the  foreign  con- 
stituents of  a  commission  merchant  and  the  home  suppliers  of  the 
goods  has  led  to  a  course  of  business,  in  consequence  of  which  it  has 
been  long  settled  that  a  foreign  constituent  does  not  give  the  commis- 
sion merchant  an}'  authority  to  pledge  his  credit  to  those  from  whom 
the  commissioner  buys  tliem  by  his  order  and  on  his  account.  It  is 
true  that  this  was  originally  (and  in  strictness  perhaps  still  is)  a  ques- 
tion of  fact ;   but  the  inconvenience  of  holding  that  privit}'  of  contract 


SECT,  v.]  ARMSTRONG   V.    STOKES.  709 

was  established  between  a  Liverpool  merchant  and  the  grower  of  every 
bale  of  cotton  whicii  is  forwarded  to  him  in  consequence  of  his  order 
given  to  a  commission  mercliant  at  New  Orleans,  or  between  a  New 
York  merchant  and  the  supplier  of  every  bale  of  goods  purchased  in 
consequence  of  an  order  to  a  London  commission  merchant,  is  so 
obvious  and  so  well  known,  that  we  are  justified  in  treating  it  as  a 
matter  of  law,  and  saying  that  in  the  absence  of  evidence  of  an  ex- 
press authority  to  that  effect,  the  commission  agent  cannot  pledge  his 
foreign  constituent's  credit.  Where  the  constituent  is  resident  in 
England,  the  inconvenience  is  not  so  great,  and  we  think  ihsit,  prima 
facie,  the  authority  is  given,  unless  there  is  enough  to  show  that  it  was 
not  in  fact  given.  It  was  strongly  urged  by  the  defendants'  counsel, 
that  the  course  of  dealing  and  the  mode  of  settlement  by  the  defend- 
ants with  J.  &  O.  Ryder  were  sufficient  to  show  that  J.  &  O.  Ryder 
were  not  intended  to  have  authority  to  establish  privit}"  of  contract 
between  the  defendants  and  those  from  whom  .J.  &  O.  Ryder  obtained 
tlie  goods.  We  agree  that  it  is  evidence  that  way  ;  but  we  do  not  feel 
justified  in  finding  this  question  in  favor  of  the  defendants.  If  a 
special  jury,  who  have  knowledge  of  the  course  of  business  beyond 
what  we  have,  had  on  this  ground  found  a  verdict  for  the  defendants, 
we  should  not  have  been  dissatisfied  with  it.  Indeed,  we  feel  this  so 
strongly  that,  if  the  event  of  the  cause  depended  upon  this  point,  we 
should  probably  have  given  tlie  defendants  liberty  to  have  a  new  trial, 
on  payment  of  costs,  in  order  that  the  opinion  of  a  jur}-  might  be 
taken  on  that  new  trial,  when  the  nature  of  the  exceptions  from  the 
general  habit  of  paying  cash  might  also  be  ascertained.  But  it  is  not 
necessary  to  do  this,  as  we  have  come  to  the  conclusion  that  the 
defendants  are  entitled  to  the  verdict  on  the  second  ground. 

It  is  right,  in  order  to  avoid  misapprehension,  to  sa^-  that  the  phrase 
repeatedly  used  by  the  counsel  for  the  plaintiff  that  the  vendor  has  a 
right  to  follow  the  goods  is,  in  our  opinion,  calculated  to  mislead. 
There  are  cases,  such  as  that  of  Wilson  v.  Hart,  7  Taunt.  295,  to 
which  such  a  phrase  would  be  applicable  ;  but  those,  as  is  pointed  out 
in  2  Smith's  Leading  Cases,  at  p.  332  (5th  ed.  ;  p.  351,  6th  ed.),  pro- 
ceed on  the  ground  of  fraud.  In  the  absence  of  fraud,  unless  the 
person  receiving  the  goods  is  a  party  to  the  contract  under  which  the 
goods  were  sold,  the  vendor  has  no  right  to  follow  them.  If  the  goods 
were  bricks  sold  to  a  contractor,  he  could  not  charge  the  owner  of  the 
house  into  which  they  were  built,  though  he  might  do  so  if  the  person 
supposed  to  be  the  contractor  turned  out  to  be  realh'  agent  for  the 
owner  of  the  house  ;  and  the  principle  is  the  same  in  such  a  case  as 
the  present. 

The  second  point  raised  is  of  considerable  importance.  In  Railton 
V.  Hodgson,  and  Peele  v.  Hodgson,  reported  in  a  note  to  Addison  i?. 
Gandasequi,  4  Taunt.  575,  577,  Mansfield,  C.  J.,  said,  "If  Hodgson" 
(the  undisclosed  principal)  "had  really  paid  Smith,  Lindsay,  &  Co." 
(the  insolvent  actual  purchasers),    "  it  would  have  depended   on   cir- 


710  ARMSTRONG   V.    STOKES.  [cHAP.  V. 

curastances  whether  he  would  have  been  Hable  to  pay  for  the  goods 
over  again  ;  if  it  would  have  been  unfair  to  have  made  him  liable,  lie 
would  not  have  been  so."  This  was  in  1804.  It  is,  however,  to  be 
observed,  that  as  Hodgson  had  not  paid  either,  this  was  not  necessary 
for  the  decision.  Two  cases  of  Waring  v.  Favenck,  1  Camp.  85,  and 
Kymer  r.  Suwercropp,  1  Camp.  lO'J,  which  were  tried  before  Lord 
EUenborough  in  1807,  are  generally  cited  on  this  subject,  without,  as 
it  seems  to  us,  paying  sufficient  attention  to  the  fact  that  Ken3on  & 
Co.,  in  consequence  of  whose  insolvency  the  questions  arose,  were 
London  brokers,  not  commission  merchants.  A  broker  always  pro- 
fesses to  make  a  contract  between  two  principals,  and,  though  in  recent 
times  the  strictness  of  the  rules  has  to  some  extent  been  relaxed,  in 
1807  a  London  broker  was  bound  by  his  bond  (the  form  of  which  will 
be  found  in  Holt  N.  P.  at  p.  431,  n.)  to  make  known  to  the  person 
with  whom  the  agreement  is  made  the  name  of  his  principal  if  re- 
quired, and  not  to  deal  on  his  own  account.  In  Kemble  v.  Atkins, 
Holt  N.  P.  427,  it  was  decided  that  this  did  not  prevent  the  broker 
from  making  the  contract  in  his  own  name  so  as  to  pledge  his  personal 
credit  to  the  seller ;  but  still  he  must  necessarily  have  had  a  principal. 
And,  as  is  laid  down  in  Higgins  v.  Senior,  8  M.  &  W.  at  p.  844,  it 
was  always  competent,  notwithstanding  this  form  of  the  agreement, 
to  show  who  the  person  was  for  whom  the  broker  acted  as  agent  in 
making  the  contract,  "  so  as  to  give  the  benefit  of  the  contract  on  the 
one  hand  to,  and  charge  with  liability  on  the  other,  the  unnamed  prin- 
cipals." In  ever}'  case,  therefore,  where  the  sale  is  to  a  broker,  the 
vendor  knows  that  there  is  or  ought  to  be  a  principal  between  whom 
and  himself  there  is  established  a  privity  of  contract,  and  whose  secur- 
ity he  has  in  addition  to  that  of  the  broker,  and  the  principal  also 
knows  that  the  vendor  is  aware  of  this  and  to  some  extent  trusts  to 
his  liability.  Tiiis  is,  therefore,  a  very  different  kind  of  case  from  that 
of  a  person  selling  goods  to  a  person  whom  at  the  time  of  the  contract 
he  supposes  to  be  a  principal.  The  marginal  note  in  Kymer  v.  Suwer- 
cropp, 1  Camp.  109,  is,  perhaps,  too  general,  even  in  the  case  of  a 
broker,  as  is  pointed  out  by  Maule,  J.,  in  Smyth  v.  Anderson,  7  C.  B. 
at  p.  39,  but  what  was  actually  decided  was  probably  right. 

The  next  case  in  order  of  date  is  Thomson  v.  Davenport,  9  B.  & 
C.  at  pp.  86,  88,  where  Lord  Tenterden,  in  speaking  of  this  subject, 
saj's :  "I  take  it  to  be  a  general  rule,  that  if  a  person  sells  goods, 
supposing  that  at  the  time  of  the  contract  he  is  dealing  with  a  prin- 
cipal, but  afterwards  discovers  that  the  person  with  whom  he  has  been 
dealing  is  not  the  principal  in  the  transaction,  but  agent  for  a  third 
person,  though  he  ma}'  in  the  mean  time  have  debited  the  agent  with 
it,  he  may  afterwards  recover  the  amount  from  the  real  principal ; 
subject,  however,  to  this  qualification,  that  the  state  of  the  account 
between  the  jprinci'pal  and  the  agent  is  not  altered  to  the  prejudice  of 
the  principal.''  And  Bayley,  J.,  says:  "Where  a  purchase  is 
made  by  an  agent,  the  agent  does  not  of  necessity  so  contract  as  to 


SECT,  v.]  ARMSTKONG    V.    STOKES.  711 

make  himself  personally  liable  ;  but  he  mat/  do  so.  If  he  does  make 
himself  personally  liable,  it  does  not  follow  that  the  principal  may  not 
be  liable  also,  subject  to  this  qualification,  that  the  principal  shall  not 
be  prejudiced  hj  being  made  persomdhj  liable^  if  the  justice  of  the 
case  is  that  he  should  not  be  personally  liable.  If  the  primApal  has 
paid  the  agent,  or  if  the  state  of  the  accounts  beticeen  the  agent  here 
and  the  principal  would  make  it  unjust  that  the  seller  should  call  on 
the  princip(d,  the  fact  ofpaifment,  or  such  a  state  of  accounts,  would 
be  an  answer  to  the  action  brought  by  the  seller  where  he  had  looked 
to  the  responsibility  of  the  agent."" 

In  this  case,  as  in  Railton  v.  Hodgson,  4  Taunt,  at  p.  576,  n.,  the 
freshly-discovered  principal  had  not  paid  any  one,  and  therefore  the 
two  i)assages  above  in  italics  were  no  necessary  part  of  the  decision, 
though  they  are  weighty  autliorities  as  indicating  the  decided  opinion 
of  two  judges  of  great  experience  in  commercial  cases. 

In  Smyth  v.  Anderson,  7  C.  B.  21,  36,  the  case  arose  in  such  a 
peculiar  way  that  it  is  difficult  to  say  exactly  what  was  decided.  But 
Maule,  J.,  in  his  very  elaborate  and  able  judgment,  expresses  a  decided 
opinion  that  the  dicta  of  Chief  Justice  Mansfield  and  Bayley,  J.  (he 
seems  not  to  have  noticed  that  of  Lord  Tenterden),  ''  affords  a  sensible 
rule  on  the  subject."  The  latter  dictum  of  Maule,  J.,  adds  very 
greatly  to  the  weight  of  those  which  preceded.  Still,  there  is  no  actual 
decision  on  the  point. 

On  the  otlier  hand,  it  is  stated  in  a  note  to  the  third  edition  of 
Paley's  Principal  and  Agent,  p.  249  n.,  that  Mr.  Justice  James  Parke 
was  amongst  those  who  did  not  acquiesce  in  the  decision  in  Thomson  v. 
Davenport,  9  B.  &  C.  78.  It  is  not  said  on  what  authority'  that  state- 
ment proceeds,  and  from  the  context  it  would  seem  that  his  dissent 
was  rather  from  the  extension  of  the  rule  b}'  which  the  principal  might 
be  charged  than  from  the  exceptions  to  that  rule.  But  in  Ileald  v. 
Kenworthy,  10  Ex.  739,  745,  he  does,  as  it  seems  to  us,  express  dis- 
sent from  the  exceptions.  The  case  itself  arose  on  a  demurrer  to  a 
plea  wliich  is  set  out.  But  then  it  is  stated  that  the  court  thought  it 
might  amount  to  the  general  issue,  and  therefore  it  was  amended,  but 
the  report  does  not  state  what  the  amendments  were.  It  is  not  eas3-, 
therefore,  to  say  what  was  the  actual  decision.  It  does  not,  however, 
appear  that  in  any  part  of  the  plea  it  was  stated  that  the  plaintiff  was 
ignorant  of  the  existence  of  the  defendant  as  principal  till  after  the 
defendant  had  paid  the  agent,  nor  even  that  the  defendant  believed 
such  to  be  the  case.  Unless  the  plea  was  such  as  to  raise  the  very 
point,  tlie  opinion  of  Parke,  B.  (like  those  of  Mansfield,  C.  J.,  Bayley, 
J.,  and  Maule,  J.),  is  but  a  dictum  entitled  to  high  respect  as  an 
authority,  but  not  binding  as  a  decision.  Parke,  B.,  lays  down  gener- 
ally that  "  if  a  person  orders  an  agent  to  make  a  purchase  for  him,  he 
is  bound  to  see  that  the  agent  pays  the  debt ;  and  the  giving  the  agent 
money  for  that  purpose  does  not  amount  to  payment,  unless  the  agent 
pays   it  accordingly."     After  commenting  on  several  of  the  cases  al- 


712  ARMSTRONG   V.    STOKES.  [CHAP.  V. 

read}' referred  to,  he  concludes:  "  I  think  that  there  is  no  authority 
for  saN'ing  that  a  payment  made  to  the  agent  precludes  the  seller  from 
recovering  from  tlie  principal,  unless  it  appears  that  he  has  induced 
thq  principal  to  believe  that  a  settlement  has  been  made  with  the 
agent."  He  states  this  as  generally  true  wherever  a  principal  has 
allowed  himself  to  be  made  a  party  to  a  contract,  and  makes  no  excep- 
tion as  to  the  case  where  the  other  side  made  the  contract  with  the 
agent  believing  him  to  be  principal,  and  continued  in  such  belief  till 
after  the  payment  was  made.  He  certainly  does  not  in  terms  say  that 
there  is  no  qualification  of  the  principle  he  lays  down  when  applicable 
to  such  a  case;  but  recollecting  how  careful  Parke,  B.,  always  was  to 
la}-  down  what  he  thought  to  be  the  law  fully  and  with  accuracy,  we 
think  the  counsel  for  the  plaintiff  were  justified  in  arguing  that  Parke, 
B.,  thought  the  exception  did  not  exist.  And  this  is,  in  our  opinion, 
a  weighty  authority  in  favor  of  the  plaintiff's  contention,  more  espe- 
cially as  Pollock,  C.  B.,  assents  in  his  judgment  to  the  remark  thrown 
out  by  Parke,  B,,  during  the  argument,  and  afterwards  more  elabo- 
rately stated  by  him  in  his  judgment.  And  Alderson,  B.,  in  his  judg- 
ment, appears  entirely  to  assent  to  the  judgment  of  Parke,  B. 

We  think  that  we  could  not,  without  straining  the  evidence,  hold  in 
this  case  that  the  plaintiff  had  induced  the  defendants  to  believe  that 
be  (the  plaintiff)  had  settled  with  J.  &  O.  Rj-der  at  the  time  when  the 
defendants  paid  them. 

This  makes  it  necessary  to  determine  whether  we  agree  in  what  we 
think  was  the  opinion  of  Parke,  B,,  acquiesced  in  b}-  Pollock,  C.  B., 
and  Alderson,  B. 

We  think  that,  if  the  rigid  rule  thus  laid  down  were  to  be  applied  to 
those  who  were  only  discovered  to  be  principals  after  they  had  fairly 
paid  the  price  to  those  whom  the  vendor  believed  to  be  the  principals, 
and  to  whom  alone  the  vendor  gave  credit,  it  would  produce  intolerable 
hardship.  It  may  be  said,  perhaps  truly,  this  is  the  consequence  of 
that  which  might  originally  have  been  a  mistake,  in  allowing  the 
vendor  to  have  recourse  at  all  against  one  to  whom  he  never  gave 
credit,  and  that  we  ought  not  to  establish  an  illogical  exception  in 
order  to  cure  a  fault  in  a  rule.  But  we  find  an  exception  (more  or  less 
extensivel}'  expressed)  always  mentioned  in  the  very  cases  that  lay 
down  the  rule  ;  and  without  deciding  anything  as  to  the  case  of  a 
broker,  who  avowedly  acts  for  a  principal  (though  not  necessarily 
named),  and  confining  ourselves  to  the  present  case,  which  is  one  in 
which,  to  borrow  Lord  Tenterden's  phrase  in  Thomson  v.  Davenport, 
9  B.  &  C.  at  p.  86,  the  plaintiff  sold  the  goods  to  Ryder  &  Co.,  "  sup- 
posing at  the  time  of  the  contract  he  was  dealing  with  a  principal,"  we 
think  such  an  exception  is  established. 

We  wish  to  be  understood  as  expressing  no  opinion  as  to  what 
would  have  been  the  effect  of  the  state  of  the  accounts  between  the 
parties  if  J.  &,  O.  Ryder  had  been  indebted  to  the  defendants  on  a 
separate   account,  so   as   to  give   rise  to   a  set-off  or   mutual  credit 


SECT,  v.]  CURTIS   V.    WILLIAMSON.  713 

between  them.  We  confine  our  decision  tx)  the  case  where  the  defend- 
ants, after  the  contract  was  made,  and  in  consequence  of  it,  hona  fide 
and  witliout  moral  blame,  paid  J.  &  O.  Ryder  at  a  time  when  the 
plaintiff  still  gave  credit  to  J.  «&;  O.  Ryder,  and  knew  of  no  one  else. 
We  think  that  after  that  it  was  too  late  for  the  plaintiff  to  come  upon 
the  defendants. 

On  this  ground  we  make  the  rule  absolute  to  enter  the  verdict  for 
the  defendants.  Ride  absolute. 


CURTIS   AND   OTHERS   V.   WILLIAMSON   and   others. 
Queen's  Bench.     1874. 

[£.  R.  10  Q.  B.  57.] 

Declaration  for  goods  bargained  and  sold,  and  sold  and  delivered, 
and  for  interest  and  money  due  on  accounts  stated. 

Plea,  never  indebted.     Issue  thereon. 

At  the  trial  before  Quain,  J.,  at  the  Winter  Assizes  at  Liverpool,  a 
verdict  was  entered  for  the  plaintiffs,  leave  being  reserved  to  the  de- 
fendants to  move  to  enter  a  nonsuit. 

A  rule  was  accordingly  obtained  on  the  ground  that  the  plaintiffs  had 
not  elected  to  go  against  the  defendants,  but  had  elected  to  proceed 
against  Boulton,  the  agent. 

The  facts  and  arguments  sufficiently  appear  in  the  judgment  of  the 
court. 

Nov.  n.     C.  Mussell,  Q.  C,  and  Potter  showed  cause. 

C  Crompton  and  Gorst,  in  support  of  the  rule. 

Cur.  adv.  vxdt. 

Dec.  10.  The  judgment  of  the  court  (Cockburn,  C.  J.,  Qcain  and 
Archibald,  JJ.)  was  delivered  b}' 

Quain,  J.  This  was  an  action  to  recover  the  price  of  gunpowder 
bought  of  the  plaintiffs  by  one  Boulton  in  his  own  name,  but  in  reality 
as  agent  for  the  defendants,  and  for  the  purpose  of  being  used  in  a 
mine  which  was  their  property.  The  fact  of  the  agency  was  not  dis- 
closed at  the  time  of  the  purcliase,  but  it  afterwards  became  known  to 
the  plaintiffs  that  the  defendants  were  the  principals. 

After  the  plaintiffs  had  acquired  this  information,  Boulton  having 
filed  a  petition  for  the  liquidation  of  his  estate,  an  affidavit  in  the 
usual  form,  for  the  purpose  of  proving  under  the  liquidation  for  the 
price  of  the  powder,  was  made  by  a  clerk  of  the  plaintiffs,  treating 
Boulton  as  their  debtor,  and  was  sent  bj^  post  to  Birmingham,  to  be 
filed  in  the  county  court  there,  in  which  the  proceedings  in  liquidation 
were  carried  on. 

Almost  immediately  after  this  affidavit  had  been  posted  the  plaintiffs' 
attorneys,  being  apprehensive  that  a  claim  against  Boulton's  estate 
might  prejudice  their  riglits  as  against  the  defendants,  despatched  a 


714  CURTIS   V.    WILLIAMSON.  [CHAP.  V. 

telegram  to  their  agent  at  Birmingham,  directing  him  not  to  file  the 
affidavit.     The  telegram,  however,  was  too  late,  and  was  not  received 
until  after  the  affidavit  had  been  filed  ;  but  no  further  step  of  any  kind 
was  taken  by  the  plaintiffs  in  relation  to  the  liquidation  proceedings, 
nor  has  any  dividend  been  received  by  them.     Shortly  after  the  affidavit 
had  been  thus  filed  this  action  was  commenced  against  the  defendants. 
There  was  no  evidence  whatever  that  after  the  fact  of  the  agency  had 
become  known  to  the  plaintiiTs  the  state  of  the  accounts  between  the 
defentlants  and  Boulton  had  been  in  any  way  altered  to  the  prejudice 
of  the  defendants  ;  and  the  sole  question  raised  by  the  rule,  which  was 
oranLed  to  set  aside  the  verdict  for  the  plaintirt's  and  enter  a  nonsuit,  is, 
■whether,  under  the  circumstances,  the  making  and  filing  of  the  affidavit 
in  bankruptc}-  amounted,  in  point  of  law,  to  a  conclusive  election  by 
the  plaintiffs  to  treat  Boulton  as  their  debtor,  so  as  to  preclude  them 
from  maintaining  this  action  against  his  principals.     We  are  of  opinion 
that  it  did  not.     There  can  be  no  doubt  that,  in  the  absence  of  an}' 
alteration  of  the  account  to  the  prejudice  of  the  principals,  the  plain- 
tiffs, on  discovering  that  Boulton  was  merely  an  agent  for  the  defend- 
ants,  had    a   right  within    a  reasonable  time  (Smelhurst  r.   Mitchell, 
1  E.  &  E.  622;    28  L.  J.    (Q.  B.)  241),  to  elect  to  proceed  against 
the  defendants,  Thomson  v.  Davenport,  9   B.  &  C.  78,  86  ;  unless  in 
the  mean  time,  with  full  knowledge  as  to  who  were  the  principals,  and 
with  the  power  of  choosing  between  them  and  the  agent  (Addison  y. 
Gandasequi,  4  Taunt.  574,  and  Paterson  v.  Gandasequi,  15  East,  62), 
they  had  distinctly  and  unquestionably  elected  to  treat  the  agent  alone 
as  their  debtor.    Principals  and  agent  were  equally  liable  upon  the  con- 
tract, and  the  vendor  had  a  clear  option  a.    to  which  of  them  he  would 
hold  responsible.     The  question  is,  What  is  sufficient  to  constitute  a 
binding  election  in  point  of  law?     In  general,  the  question  of  election 
can  only  be  properly  dealt  with  as  a  question  of  fact  for  the  jury,  subject 
to  the  direction  of  the  presiding  judge,  as  was  done  in  the  case  of  Calder 
V.  Dobell,  Law  Rep.  6  C.  P.  486  ;   but  there  may  no  doubt  be  cases  in 
which  the  act  of  the  contractee  in  regard  to  his  dealings  with  or  proceed- 
ing against  the  agent,  with  full  knowledge  of  the  facts  and  freedom  of 
choice,  may  be  such  as  to  preclude  him  in  point  of  law  from  afterwards 
resorting  to  the  principal.     Wliether  in  regard  to   proceedings  taken 
against  the  agent  by  action  at  law  anything  short  of  judgment  and  sat- 
isWlion  would  be  sufficient  to  exclude  resort  to  the  principal,  was  the 
point  raised  in  the  case  of  Priestly  v.  Fernie,  which  was  cited  on  behalf 
of  the  defendants.!  .   .  .  But  it  is  clear,  from  the  language  used  by 
Bramwell,  B..  in  delivering  the  judgment  of  the  court,  that  whilst  it 
was  considered  that  judgment  against  the  agent,  even  without  satisfac- 
tion, would  constitute  a  conclusive  election,  yet  that  no  legal  proceed- 
ings short  of  judgment  would  have  that  effect,  for  he  distinctly  points 
oul;  that  by  the  word  "  sue  "  he  means  "  sue  to  judgment."    If  the  facts 
in    the  present  case  were   similar  to  those  in  Priestly  v.    Fernie,  we 

1  Here  was  stated  Priestly  v.  Fernie,  antp,  p.  698.  —  Ed. 


SECT,  v.]  IRVINE    V.    WATSOX.  715 

should,  of  course,  be  bound  by  the  decision  in  that  case  to  bold  that 
"  suing  "  the  principal  in  tlie  sense  in  which  the  word  "  sue  "  is  there 
used,  would,  though  the  claim  remained  unsatisfied,  amount  to  a  bind- 
ing election  ;  but  the  proceedings  in  question  have  little  analog}',  and 
fall  very  far  short  of  what  occurred  in  Priestly  r.  Fernie.  There  two 
successive  actions  had  l)een  brought  against  the  captain,  one  abroad 
and  the  other  in  this  country,  without  any  intermediate  attempt,  so  far 
as  appears,  to  hold  the  shipowner  liable,  and  tiie  agent  (the  captain) 
had  been  actually  taken  in  execution.  Here,  however,  no  action  was 
ever  commenced  against  the  agent,  and  every  effort  was  made  to  inter- 
cept and  withhold  the  affidavit  in  bankruptcy  which  had  been  made,  as 
it  would  seem,  without  due  consideration  and  without  any  intention 
whatever  to  discharge  the  present  defendants  from  responsibility.  We 
think  it  would  be  going  much  too  far  to  hold  that  this  was  in  point  of 
law  a  binding  election  to  deal  with  the  agent  as  alone  liable,  and  aban- 
don all  right  to  take  proceedings  against  his  principals.  It  might  possi- 
bly, in  an  appropriate  case,  constitute  with  other  facts  some  evidence 
of  election  to  be  submitted  to  a  jury  ;  but  we  cannot  regard  it  in  itself 
as  a  legal  bar  to  proceedings  against  the  defendants  ;  nor  is  there  an}' 
question  that,  if  at  lil)erty  to  sue  the  principal  at  all,  the  action  was 
brought  within  a  reasonable  time.  For  these  reasons  we  are  of  opinion 
that  the  rule  to  set  aside  the  verdict  and  enter  a  nonsuit  should  be  dis- 
charged. Hide  discJiarged} 


IRVINE   &   CO.    V.   WATSON    &   CO. 

Court  of  Appeal.     1880. 

[5  Q.  B.  D.  414.] 

This  was  an  action  brought  to  recover  the  price  of  certain  casks  of 
oil.  BowEN,  J.,  on  further  consideration,  gave  judgment  for  the  plain- 
tiffs,'^ and  the  defendants  appealed. 

1  See  Gardner  v.  Bean,  124  Mass.  .347  (1878)  ;  Dyer  v.  Swift,  1.54  id.  1.59  (1891).  — 
Ed. 

-  In  the  course  of  his  opinion  in  the  Queen's  Bench  Division,  as  reported  in  5  Q.  B.  D. 
102,  106-108  (1879),  Bowen,  J.,  said:  "It  is  obvious  that  when,  as  in  Armstrong  v. 
Stokes,  the  seller  deals  exclusively  with  the  agent  as  principal,  tlie  seller  sells  know- 
ing, if  his  buyer  turns  out  to  have  a  principal  behind  him,  the  principal  will  have,  at 
all  events,  been  justified  in  assuming,  as  the  fact  is,  that  the  seller  deals  simply  with 
the  agent.  The  principal  may  be  expected  to  arrange  with  his  agent  on  that  basis. 
If  before  recourse  is  liad  to  him  the  undisclosed  principal  has  put  his  agent  in  funds 
to  pay,  the  seller  cannot  afterwards  object  that  the  imdisclosed  principal,  who  had  a 
right  to  suppose  his  credit  was  not  looked  to  in  the  matter,  shouhl  have  held  his  hand. 
The  case  is  altered  where  the  agent  when  buying  states  that  he  lias  a  principal  whose 
existence,  though  he  does  not  name  him,  he  is  authorized  in  mentioning.  I  think  that 
the  liability  of  the  principal,  who  under  such  circumstances  pays  his  agent,  to  pav  over 
again  to  the  seller,  must  depend  in  each  case  on  what  j)asscs  between  tlie  seller  and  the 


716  IRVINE   V.    WATSON.  [CHAP.  V. 

GuUy^  Q.  C,  and  Crompton,  for  the  defendants. 

W.  li.  Kennedy  (/Sir  F.  HerschelU  S.  G.,  with  him),  for  the  plain- 
tiffs. 

Bramwell,  L.  J.  I  am  of  opinion  that  the  judgment  must  be 
affirmed.  The  facts  of  the  case  are  shortly'  these  :  The  plaintiffs  sold 
certain  casks  of  oil,  and  on  tlie  face  of  the  contract  of  sale  Conning 
appeared  as  the  purchaser.  But  the  plaintiffs  knew  that  he  was  only 
an  agent  buying  for  principals,  for  he  told  them  so  at  the  time  of  the 
sale  ;  therefore  the}'  knew  that  they  had  a  right  against  somebody 
besides  Conning.  On  the  other  hand,  the  defendants  knew  that  some- 
bod}-  or  other  had  a  remedy  against  them,  for  they  had  authorized 
Conning,  who  was  an  ordinarj'  broker,  to  pledge  their  credit,  and  the 
invoice  specified  the  goods  to  have  been  bought  "  per  John  Conning." 
Then,  that  being  so,  the  defendants  paid  the  broker ;  and  the  question 
is  whether  such  payment  discharged  them  from  their  lial)ilit3'  to  the 
plaintiffs.  I  think  it  is  impossible  to  sa\"  that  it  discharged  them, 
unless  the}'  were  misled  b}-  some  conduct  of  the  plaintiffs  into  the 
belief  that  the  broker  had  already  settled  with  the  plaintiffs,  and  made 
such  payment  in  consequence  of  such  belief.  But  it  is  contended  that 
the  plaintiffs  here  did  mislead  the  defendants  into  such  belief  b}-  parting 
with  the  possession  of  the  oil  to  Conning  without  getting  the  money. 
The  terms  of  the  contract  were  "  cash  on  or  before  deliver}-,"  and  it  is 
said  that  the  defendants  had  a  right  to  suppose  that  the  sellers  would 
not  deliver  unless  they  received  payment  of  the  price  at  the  time  of 
delivery.  I  do  not  think,  however,  that  that  is  a  correct  view  of  the 
case.     The  plaintiffs  had  a  perfect  right  to  part  with  the  oil  to  the 

agent  acting  within  the  scope  of  his  authority,  and  on  the  precise  nature  of  the  contract 
which  the  agent  has  lawfully  made.  In  the  present  instance  the  plaintiffs  were  informed 
that  Conning  &  Co.  bought  as  agents,  and  that  they  had  an  undisclosed  principal  in 
the  transacti(jn.  The  plaintiffs  sold,  trusting  partly,  but  not  wholly,  to  the  credit  of 
the  agent,  for  in  fact  they  relied  on  the  credit  of  an  unknown  and  unnamed  principal, 
to  the  disclosure  of  whose  name  they  were  entitled  on  demand.  The  contract  was  for 
cash ;  the  price  was,  if  not  received  before  delivery,  to  be  payable  forthwith  upon  deliv- 
ery. The  essence  of  such  a  transaction  is  that  the  seller  as  an  ultimate  resource  looks 
to  the  credit  of  some  one  to  pay  him  if  the  agent  does  not.  Till  the  agent  fails  in 
payment  the  seller  does  not  want  to  have  recourse  to  this  additional  credit.  It  remains 
in  the  background  ;  but  if,  before  the  time  comes  for  payment,  or  before,  on  non- 
payment by  the  agent,  recourse  can  be  fairly  had  to  the  principal  whose  credit  still 
remains  pledged,  the  principal  can  pay  or  settle  his  account  with  his  own  agent,  he 
will  be  depriving  the  seller,  behind  the  seller's  back,  of  his  credit.  It  surely  must,  at 
all  events,  be  the  law  that  in  the  case  of  sale  of  goods  to  a  broker  the  principal  known 
or  unkno^vn  cannot,  by  paying  or  settling  before  the  time  of  payment  comes  with  his 
own  agent,  relieve  himself  from  responsibility  to  the  seller,  except  in  the  one  case 
where  exclusive  credit  was  given  by  the  seller  to  the  agent.  But  may  the  payment 
or  settlement  to  or  with  the  agent  be  safely  made  in  such  a  case  after  the  day  of  pay- 
ment has  arrived,  and  if  so  within  what  time  ?  It  seems  to  me  that  it  can  only  safely 
be  made  if  a  delay  has  intervened  which  may  reasonably  lead  the  principal  to  infer 
that  the  seller  no  longer  requires  to  look  to  the  principal's  credit,  such  a  delay  for 
example  as  leads  to  the  inference  that  the  debt  is  paid  by  the  agent,  or  to  the  inference 
that  though  the  debt  is  not  paid  the  seller  elects  to  abandon  his  recourse  to  the  prin- 
cipal and  to  look  to  the  agent  alone."  —  Ed. 


SECT,  v.]  IRVINE    V.    WATSON.  717 

broker  without  insisting  strictly  upon  their  right  to  prepayment,  and 
there  is,  in  my  opinion,  nothing  in  the  facts  of  tlie  case  to  justify-  the 
defendants  in  believing  that  they  would  so  insist.  No  doubt  if  there 
was  an  invariable  custom  in  the  trade  to  insist  on  prepayment  where 
the  terms  of  the  contract  entitled  the  seller  to  it,  that  might  alter  the 
matter  ;  and  in  such  case  noninsistence  on  prepayment  might  discharge 
the  buyer  if  he  paid  the  broker  on  the  faith  of  the  seller  already  having 
been  paid.  But  that  is  not  the  case  here  ;  the  evidence  before  Bowen,  J., 
shows  that  there  is  no  invariable  custom  to  that  effect. 

Apart  from  all  authorities,  then,  I  am  of  opinion  that  the  defendants' 
contention  is  wrong,  and  upon  looking  at  the  authorities,  I  do  not  think 
that  an}'  of  them  are  in  direct  conflict  with  that  opinion.  It  is  true 
that  in  Thomson  v.  Davenport,  9  B.  &  C.  78,  both  Lord  Tenterden 
and  Bayley,  J.,  suggest  in  the  widest  terms  that  a  seller  is  not  entitled 
to  sue  the  undisclosed  principal  on  discovering  him,  if  in  the  mean  time 
the  state  of  account  between  the  principal  and  the  agent  has  been 
altered  to  the  prejudice  of  the  principal.  But  it  is  impossible  to  con- 
strue the  dicta  of  those  learned  judges  in  that  case  literall}' ;  it  would 
operate  most  unjustlj"  to  the  vendor  if  we  did.  I  think  the  judges  who 
uttered  them  did  not  intend  a  stricth'  literal  interpretation  to  be  put  on 
their  words.  But  whether  the}'  did  or  no,  the  opinion  of  Parke,  B.,  in 
Heald  v.  Kenworthy,  10  Ex.  739,  seems  to  me  preferable;  it  is  this, 
that  "  If  the  conduct  of  the  seller  would  make  it  unjust  for  him  to  call 
upon  the  buyer  for  the  mone}',  as  for  example,  where  the  principal  is 
induced  by  the  conduct  of  the  seller  to  pa}'  his  agent  the  money  on  the 
faith  that  the  agent  and  seller  have  come  to  a  settlement  on  the  matter, 
or  if  any  representation  to  that  effect  is  made  by  the  seller,  either  by 
words  or  conduct,  the  seller  cannot  afterwards  throw  off  the  mask  and 
sue  the  principal."  That  is  in  ray  judgment  a  much  more  accurate 
statement  of  the  law.  But  then  the  defendants  rely  on  the  case  of 
Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  598.  Xow  that  is  a  very  remark- 
able case  ;  it  seems  to  have  turned  in  some  measure  upon  the  peculiar 
character  filled  by  Messrs.  Ryder  as  commission  merchants.  The 
court  seemed  to  have  thought  it  would  be  unreasonable  to  hold  that 
Messrs.  Ryder  had  not  authority  to  receive  the  money.  I  think  upon 
the  facts  of  that  case  that  the  agents  would  have  been  entitled  to  main- 
tain an  action  for  the  money  against  the  defendant,  for  as  commission 
merchants  they  were  not  mere  agents  of  the  buyer.  Moreover,  the 
present  is  a  case  which  Blackburn,  J.,  there  expressly  declines  to  de- 
cide. He  expressly  draws  a  distinction  between  a  case  in  which,  as  in 
Armstrong  v.  Stokes,  the  seller  at  the  time  of  the  sale  supposes  the 
agent  to  be  himself  a  principal,  and  gives  credit  to  him  alone,  and 
one  in  which,  as  here,  he  knows  that  the  person  with  whom  he  is  deal- 
ing has  a  principal  behind,  though  he  does  not  know  who  that  princi- 
pal is. 

It  is  to  my  mind  certainly  difficult  to  understand  that  distinction, 
or  to  see  how  the  mere  fact  of  the  vendor  knowing  or  not  knowing 


718  IRVINE    V.    WATSON.  [CHAP.  V. 

that  the  agent  has  a  principal  behind  can  affect  the  liabihty  of  that 
principal.  I  should  certainly  have  thought  that  his  liabilitj-  would 
depend  upon  what  he  himself  knew,  that  is  to  saj'  whether  he  knew  that 
the  vendor  had  a  claim  against  liim  and  would  look  to  him  for  payment 
in  the  agent's  default.  But  it  is  sufficient  liere  that  the  defendants  did 
know  that  the  sellers  had  a  claim  against  them,  unless  the  broker  had 
already  paid  for  the  goods. 

In  this  view  of  the  case  it  is  unnecessary  to  consider  the  furtlicr 
question  raised  b3'  Mr.  Kenned}',  as  to  whether  a  pa^^ment  on  a  general 
running  account,  as  distinguished  from  a  payment  specifically  appro- 
])riated  to  the  particular  purchase,  would  be  sufficient  to  bring  the  case 
within  Lord  Tenterden's  qualification  of  the  general  rule. 

Baggallay,  L.  J.  I  am  of  the  same  opinion.  When  the  case  was 
before  Bovven,  J.,  two  questions  were  raised :  first,  whether  the  broker 
had  authority  to  bind  and  did  bind  the  defendants,  and  secondly 
whetlier,  assuming  that  he  had  done  so,  the  defendants  were  exonerated 
b}'  anything  which  subsequently  occurred.  The  first  question  is  one  of 
fact,  which  I  agree  ought  to  be  answered  in  the  aflBrmative.  Then  did 
anything  occur  subsequently  to  discharge  the  defendants?  It  is  said 
that  the}'  paid  the  brokers,  and  that  that  fact  operated  as  a  discharge. 
I  may  say  that  I  doubt  wliether  their  acceptances  being  in  settlement 
of  a  general  account  could  strictl}'  be  said  to  be  paj'ment  for  the  oil,  but 
I  am  content  to  treat  them  as  such.  What  then  was  the  effect  of  that 
payment?  If  the  dicta  in  Thomson  y.  Davenport  are  to  be  taken  as 
strictly  correct,  the}'  certainly  go  a  long  way  to  support  the  defendants' 
contention.  But  it  is  to  be  observed  that  they  were  mere  dicta^  and 
quite  unnecessary  to  the  decision.  The  largeness  of  those  dicta  has 
since  been  dissented  from  by  Parke,  B.,  in  the  case  of  Heald  v.  Ken- 
worthy,  and  with  his  dissent  I  entirely  agree.  He  sought  to  limit  the 
qualification  of  the  general  rule  to  cases  in  which  the  seller  by  some 
conduct  has  misled  the  buyer  into  believing  that  a  settlement  has  been 
made  with  the  agent.  And  if  that  limitation  is  correct,  I  am  of  opinion 
that  there  is  no  such  payment  here  as  would  discharge  the  defendants. 

But  reliance  is  placed  upon  tlie  case  of  Armstrong  v.  Stokes  as  estab- 
lishing the  doctrine  that  the  buyer  is  released  from  liability,  if  be  pays 
the  agent  at  a  time  at  which  the  seller  still  gives  credit  to  the  agent  — 
and  it  is  contended  that  as  that  state  of  facts  existed  here,  the  defend- 
ants are  accordingly  discharged.  But  I  think  that  is  not  the  true  view 
of  the  decision  in  Armstrong  v.  Stokes.  It  must  be  accepted  with  refer- 
ence to  the  particular  circumstances  of  that  case.  There  at  the  time  of 
the  payment  by  the  principal  to  the  brokers,  the  sellers  still  gave  credit 
to  the  brokers  and  to  the  brokers  alone.  But  that  is  not  the  case  here ; 
the  plaintiffs  it  is  true  gave  credit  to  Conning,  but  they  did  not  give 
him  exclusive  credit.  I  do  not  think  I  am  running  counter  to  any  of 
the  decided  cases  in  thinking  that  this  judgment  must  be  aflflrmed. 

Brett,  L.  J.  The  material  facts  of  this  case  are  these.  There  is 
a  contract  for  the  sale  of  goods  made  between  the  plaintiffs  and  the 


SECT,  v.]  IRVINE   V.    WATSON.  719 

defendants  through  the  agency  of  one  Conning,  a  broker.  But  in  mak- 
ing this  contract  Conning  acted  solely  as  agent  of  the  defendants,  not 
as  agent  of  the  plaintiffs  at  all.  Tlie  contract  was  for  "  cash  on  or 
before  delivery  ; "  and  the  goods  having  been  delivered,  the  defendants 
pay  Conning,  who,  as  I  have  said  before,  was  their  agent  and  no  one 
else's.  Now,  apart  from  authority,  I  should  certainly  say  that  a  pay- 
ment to  such  an  agent  could  not  be  a  good  payment  to  the  plaintiffs. 
But  then  it  is  said  that  it  is  a  good  payment  within  the  dicta  of  Thomson 
V.  Davenport ;  but  there  the  question  for  the  decision  of  the  court  was, 
not  whether  a  payment  by  the  principal  to  the  agent  precluded  the  seller 
from  suing  the  principal,  but,  wliether  the  seller  could  sue  the  principal 
at  all.  The  main  proposition  laid  down  by  Lord  Tenterden  was  this, 
"  that  if  a  person  sells  goods,  supposing  that  at  the  time  of  the  contract 
he  is  dealing  with  the  principal,  but  afterwards  discovers  that  the  person 
with  whom  he  has  been  dealing  is  not  the  principal,  but  agent  for  a 
third  person,  though  he  may  in  the  mean  time  have  debited  tlie  agent 
with  it,  he  may  afterwards  recover  the  amount  from  the  real  principal." 
He  then  introduces  a  qualification,  "subject,  however,  to  this  qualifica- 
tion, that  the  state  of  the  account  between  the  principal  and  the  agent 
is  not  altered  to  the  prejudice  of  the  principal."  Now  the  terms  of  that 
qualification  are  certainly  very  wide,  and  Bayley,  J.,  in  qualifying  the 
above  general  rule  uses  equally'  wide  language:  "  If  the  principal  has 
paid  the  agent,  or  if  the  state  of  accounts  between  the  agent  and  the 
principal  would  make  it  unjust  that  the  seller  should  call  on  the  princi- 
pal, the  fact  of  payment  or  such  a  state  of  accounts  would  be  an  answer 
to  the  action  brought  by  the  seller  where  he  had  looked  to  the  responsi- 
bilit}'  of  the  agent." 

And  Maule,  J.,  in  the  case  of  Smyth  v.  Anderson,  7  C.  B.  21,  ex- 
presses himself  in  the  same  general  terms.  But  there  again  the  point 
did  not  directly  call  for  decision.  Now,  I  think  it  is  not  fair  to  put  a 
strictly  literal  interpretation  on  the  language  used  by  judges  when 
merely  glancing  at  by  matters,  with  their  minds  mainl}'  directed  to 
another  question,  and,  tying  them  down  to  the  very  words  they  used, 
to  assume  that  those  words  contained  in  their  opinion  an  absolutely 
accurate  statement  of  the  law.  I  do  not  think  those  dicta  were  so  in- 
tended to  be  read.  In  Heald  v.  Kenworthy,  however,  the  question 
directly  arose.  And  Parke,  B.,  after  citing  the  dictum,  of  Bayley,  J., 
to  the  effect  that  the  seller  cannot  sue  the  principal  if  the  state  of 
accounts  between  the  principal  and  the  agent  would  make  it  inequitable 
that  he  should  do  so,  proceeds  to  ask  what  equity  there  can  be,  unless 
it  is  something  arising  out  of  the  conduct  of  the  seller,  something  to 
induce  the  defendant  to  believe  that  a  settlement  has  already  been 
made  with  the  agent. 

If  the  authorities  stood  there,  I  should  have  no  doubt  that  the  limita- 
tion put  by  Parke,  B.,  on  the  earlier  wide  qualification  was  correct. 
But  it  is  suggested  that  that  limitation  was  overruled  in  Armstrong  v. 
Stokes.     I  think,  however,  that  the  court  there  did  not  intend  to  over- 


720  MEKKILL    V.    KENYON.  [CHAP.  V. 

rule  it,  but  to  treat  the  case  before  them  as  one  to  which  the  limitation 
did  not  apply.  I  think  they  noticed  the  peculiar  character  of  Man- 
chester commission  merchants.  Probably  their  decision  means  this, 
that,  when  the  seller  deals  witli  the  agent  as  sole  principal,  and  the 
nature  of  the  agent's  business  is  such  that  the  buyer  ought  to  believe 
that  the  seller  has  so  dealt,  in  such  a  case  it  would  be  unjust  to  allow 
the  seller  to  recover  from  the  principal  after  he  paid  the  agent.  Or  it 
may  perhaps  be  that  Blackburn,  J.,  finding  the  wider  qualification  in 
the  very  case  which  la^'s  down  the  general  rule,  felt  himself  bound  by 
the  terms  of  that  qualification,  and  applied  them  to  the  case  before  him. 

If  the  case  of  Armstrong  v.  Stokes  arises  again,  we  reserve  to  our- 
selves sitting  here  the  right  of  reconsidering  it. 

The  only  other  question  is  whether  the  present  case  falls  within  the 
qualification  as  limited  b}'  Parke,  B.,  whether  there  was  an}'  misleading 
conduct  on  the  part  of  the  plaintiffs.  But  the  only  thing  relied  on  by 
the  defendants  on  that  point  was  the  noninsistence  on  prepayment  by 
the  plaintiffs.  And  I  do  not  think  that  that  amounted  to  laches,  or  was 
such  an  act  as  would  justify  the  defendants  in  supposing  that  Conning 
had  already'  paid  the  plaintiffs. 

Baggallay,  L.  J.  I  wish  to  add  that  Littledale,  J.,  in  the  case  in 
Thomson  v.  Davenport,  confined  his  judgment  to  the  general  rule. 

Appeal  dismissed.^ 


MERRILL   AND   OTHERS   V.   KENYON. 
Supreme  Court  of  Connecticut.     1880. 

[48  Conn.  314.] 

Assumpsit  for  goods  sold ;  brought  to  the  Court  of  Common  Pleas, 
and  tried  to  the  jury  on  the  general  issue  before  Mather,  J. 

On  the  trial  it  was  agreed  that  the  goods  for  the  value  of  which  the 
action  was  brought  were  delivered  to  one  George  A.  Hoyle,  who  was 
carrying  on  the  business  of  a  saloon-keeper  in  Norwich,  ostensibly  on 
his  own  account,  and  that  the  credit  was  given  by  the  plaintiffs  to 
Hoyle.  It  was  claimed  by  the  defendant  that  the  plaintiffs  knew  that 
Hoyle  was  doing  business  as  an  agent  when  they  sold  the  goods,  but 
this  was  denied  by  the  plaintiffs. 

The  plaintiffs  claimed  that  at  the  time  the  goods  were  furnished,  and 
for  a  long  time  afterwards,  they  supposed  that  Hoyle  was  the  real  pro- 

'  In  Davison  v.  Donaldson,  9  Q.  B.  D.  623,  628  (C.  A.  1882),  Jessel,  M.  R.,  said: 
"I  am  far  from  saying  that  there  may  not  be  special  cases  in  which  mere  delay  on 
the  part  of  the  plaintiff  would  be  held  to  be  sufficiently  misleading  conduct ;  it  may 
amount  to  a  representation  that  he  has  been  paid." 

With  the  principal  case  compare  Fradley  v.  Hyland,  37  Fed.  Rep.  49  (U.  S.  C  C, 
S.  D.  N.  Y.,  1888).  — Ed. 


SECT,  v.]  MERRILL    V.    KENYON.  721 

prietor  of  the  place  and  business,  and  bad  no  reason  to  suppose  other- 
wise, but  that  subsequently  the}'  received  information  that  led  them  to 
believe  that  he  was  only  an  agent,  and  that  the  real  proprietor  was  tlie 
defendant,  and  that  immediately  upon  this  discovery  the}'  ceased  to 
look  to  Hoyle  for  payment,  and  elected  the  defendant  as  their  debtor, 
and  brought  this  suit  to  recover  the  value  of  the  goods.  The  defend- 
ant denied  that  he  was  the  proprietor  of  the  saloon,  or  had  any  interest 
in  the  business,  though  he  admitted  that  he  was  the  owner  of  the  fix- 
tures and  some  of  the  property  in  the  saloon.  He  also  denied  that  the 
plaintiffs  made  their  election  of  him  as  their  debtor  as  soon  as  they  dis- 
covered, as  they  supposed,  that  he  was  the  proprietor,  but  continued  to 
give  credit  to  Hoyle. 

It  appeared  in  evidence  that  two  negotiable  notes  bearing  date  July 
25th,  1877,  and  payable  in  two  and  three  months,  had  been  given  by 
Hoyle  to  the  plaintiffs  for  the  account  of  the  goods  which  were  fur- 
nished, the  account  commencing  November  25th,  1876,  and  closing 
July  31st,  1877,  which  notes  were  still  retained  by  the  plaintiffs,  and 
have  never  been  surrendered  or  cancelled,  negotiated  or  paid;  and  it 
was  claimed  b}'  the  defendant  that  the  notes  were  received  in  payment, 
which  was  denied  by  the  plaintitTs. 

The  plaintiffs  requested  the  court  in  writing  to  charge  the  jury  as 
follows  :  — 

1.  If  the  plaintiffs  did  not  know  that  Hoj'le  was  acting  as  agent, 
while  the  goods  were  being  furnished,  and  as  soon  as  they  discovered 
that  he  was  the  agent  of  Kenyon  the}'  elected  Kenyon  as  their  debtor 
instead  of  Hoyle,  your  verdict  should  be  for  the  plaintifTs  ;  and,  under 
this  head,  it  is  for  you  to  find  as  a  matter  of  fact,  when,  if  ever,  the 
plaintiffs  had  such  information  as  I'equired  them  to  make  their  election. 
The  plaintiffs  were  not  obliged  to  make  their  election  on  a  mere  rumor, 
but  only  on  such  information  as  they  could  rely  upon. 

2.  If  the  plaintiffs  knew,  while  they  were  furnishing  the  goods,  that 
Hoyle  was  an  agent,  but  did  not  know  whose  agent  he  was,  the  same 
rule  applies  as  if  they  did  not  know  that  he  was  an  agent  at  all. 

3.  Taking  notes  for  an  antecedent  debt  does  not  discbarge  the  debt, 
unless  it  is  expressly  agreed  between  the  parties  that  the  notes  shall 
be  received  as  payment.  The  presumption  is  that  they  are  not  so 
received. 

4.  Even  if  the  plaintiffs  took  the  notes  as  payment,  but  did  not  have 
reason  to  know  at  the  time  that  Hoyle  was  Kenyon's  agent,  then, 
unless  the  notes  were  paid,  on  discovering  that  fact  they  were  still 
entitled  to  look  to  Kenyon. 

The  court  did  so  instruct  the  jury. 

The  defendant  requested,  in  writing,  the  court  to  charge  the  jury, 
that  if  the  plaintiffs  knew  that  Hoyle  was  agent,  and  then  received  his 
notes,  tlie  presumption  was  that  they  were  received  in  payment  of  the 
original  bill  and  that  they  elected  Hoyle  as  debtor.  The  court  declined 
to  so  charge,  but  did  charge  that  if  the  plaintiffs  knew  that  Hoyle  was 

46 


722  MEREILL   V.    KENYON.  [CHAP.  V. 

agent  of  Kenyon,  and  then  received  his  notes,  the  pi'esumption  was 
that  they  elected  Hoyle  as  their  debtor. 

The  jury  returned  a  verdict  for  the  plaintiffs,  and  the  defendant 
moved  for  a  new  trial  for  error  in  the  charge  of  the  court. 

S.  Luctis  and  G.  C.  mpley^  in  support  of  the  motion. 

S.  S.   Thresher  and  F.   T.  £roirn^  contra. 

Park,  C.  J.  No  complaint  is  made  of  that  part  of  the  charge  in 
which  the  court  instructed  the  jury  that,  if  the  plaintiffs  did  not  know 
at  the  time  of  the  sale  that  Hoyle  was  acting  as  agent,  and  as  soon  as 
they  discovered  that  he  was  so,  elected  to  make  his  principal  their 
debtor,  they  had  a  riglit  to  recover,  and  that  the}'  were  not  obliged  to 
make  their  election  upon  a  mere  rumor,  but  had  a  right  to  have  reliable 
information  to  act  upon  ;  but  exception  is  taken  to  that  part  of  the 
charge  in  which  the  judge  said,  "  If  the  plaintiffs  knew,  while  the}' 
were  furnishing  the  goods,  that  Hoyle  was  an  agent,  but  did  not  know 
whose  agent  he  was,  the  same  rule  applied  as  if  they  did  not  know  he 
was  an  agent  at  all." 

The  case  of  Thomson  v.  Davenport,  9  Barn.  «&  Cress.  78,  fully  sus- 
tains this  charge  of  the  court. ^  .   .  . 

The  case  of  Raymond  v.  Crown  &  Eagle  Mills,  2  Met.  319,  is  to 
the  same  effect.  It  was  there  held  that  "  there  must  be  actual  knowl- 
edge, on  the  part  of  the  vendor,  of  the  relation  of  the  parties  and  their 
interest  in  the  matter,  to  exonerate  the  principal  by  giving  credit  to 
the  agent." 

Complaint  is  also  made  of  that  part  of  the  charge  in  which  the  judge 
said  to  the  jury  that  "  even  if  the  plaintiffs  took  the  notes  as  payment, 
but  did  not  have  reason  to  know  at  the  time  that  Hoyle  was  the  agent 
of  the  defendant,  then,  unless  the  notes  were  paid,  on  discovering  that 
fact  they  were  still  entitled  to  look  to  the  defendant." 

Surely  the  plaintiffs  would  not  be  bound  by  an  agreement  to  take 
the  notes  of  Hoyle  in  payment  without  any  knowledge  of  the  fact  that 
Hoyle  was  the  agent  of  the  defendant,  any  more  than  they  would  be 
bound  by  their  charge  of  the  goods  to  him  believing  him  to  be  the 
principal.  The  plaintiffs  were  entitled  to  the  right  of  an  election  to 
charge  the  defendant,  and  no  agreement  they  might  make  with  Hoyle, 
under  a  misapprehension  of  the  true  character  of  the  party  with  whom 
they  were  dealing,  could  deprive  them  of  that  right.  The  reason  why 
a  party  is  not  bound,  when  he  charges  the  agent  believing  him  to  be 
the  principal,  is  the  want  of  knowledge  that  another  is  the  buyer  in 
fact.  The  same  principle  must  prevail  in  a  case  where  the  agent's 
notes  are  taken  without  that  knowledge. 

And  it  is  well  settled  that  the  taking  of  the  promissory  note  of  a 
debtor  for  an  antecedent  debt  is  not  of  itself  payment.  Davidson  v. 
Bridgeport,  8  Conn.  472  ;  Bill  v.  Porter,  9  Conn.  23  ;  Freeman  v. 
Benedict,  37  Conn.  559. 

*  Here  was  stated  Thomson  v.  Davenport,  ante,  p.  637.  —  Ed. 


SECT,  v.]  FORNEY   V.    SHIPP.  723 

The  defendant  further  complains  of  the  refusal  of  the  court  to  charge 
the  jur3',  as  requested  by  him,  "  that  if  the  plaintiffs  knew  that  Iloyle 
was  an  agent,  and  then  received  his  notes,  the  presumption  is  that  they 
were  received  in  paymiiut  of  the  original  bill,  and  that  he  elected  Iloyle 
as  his  debtor." 

We  have  already  seen  that  the  bare  fact  that  the  plaintiffs  knew  that 
Hoyle  was  an  agent  of  some  one  in  the  transaction,  was  not  enough  to 
distinguish  the  case  from  that  class  of  cases  where  such  knowledge 
does  not  exist  and  sellers  deal  witli  agents  supposing  they  are  princi- 
pals. Such  being  the  case,  it  is  clear  that  the  court  committed  no 
error  in  refusing  to  charge  as  requested  by  the  defendant.  The  cases 
already  cited  show  tliat  the  facts  stated  create  no  such  presumption  as 
that  claimed. 

A  new  trial  is  not  advised. 

In  this  opinion  the  other  judges  concurred.^ 


SECTION  V.   (continuecl). 
(C)  In  an  Action  brought  by  the  Third  Party  against  the  Agent. 

FOKNEY   i\   BARTLETT   SHIPP. 

Supreme  Court  of  North  Carolina.     1857. 

[4  Jones'  Law,  527.] 

Action  of  assumpsit,  tried  before  Bailey,  J.,  at  a  Special  Term, 
Jul}',  1857,  of  Lincoln  Superior  Court. 

The  evidence  was  that  defendant  said  he  wished  to  emplo}'  the 
plaintiff  to  superintend  the  iron-works  at  Madison  Forge  ;  that  if  he 
would  undertake  the  business,  he  would  give  him  $12.50  per  month  as 
long  as  he  continued  to  work  ;  to  which  the  plaintiff  agreed. 

Accordingly,  the  plaintitf  took  charge  of  the  iron-works,  and  the  first 
entry  he  made  in  the  book,  in  which  he  kept  his  account,  was  as  fol- 
lows :  "June  7th,  1852.  Commenced  work  this  day  for  Wni.  Shipp  ; 
employed  b}'  Bartlett  Shipp,  at  $12.50  per  month." 

It  was  further  proved  that  plaintiff  acted  as  superintendent  about 
two  years  and  six  months,  and  during  that  time  issued  many  due  bills, 
payable  in  iron,  and  signed  the  same  as  agent  for  William  Shipp  ;  that 
he  also  signed  many  receipts  in  the  same  way,  and  made  entries  in  the 
book  of  accounts  as  agent.  It  was  further  proved  that  plaintiff  sold 
iron  and  iron-ware,  to  a  large  amount,  for  William  Shipp. 

The  court  charged  the  jury  that,  if  the  defendant  made  the  contract 
in  his  own  name,  and  engaged  himself  to  pay  the  plaintiff  for  his  work, 

^  Compare  Perklus  v.  Cady,  111  Mass.  318  (1873).  — Ed. 


724  FOENEY-  V.    SHIPP.  [CHAP.  V. 

without  disclosing  tlie  name  of  bis  principal  (if  he  had  one),  he  would 
be  responsible  in  this  action,  and  the  jury  should  so  find  ;  but  if  the 
defendant  disclosed  his  principal,  or  if  the  plaintiff  contracted  with  him 
knowing  that  the  defendant  was  making  the  contract  for,  and  on  ac- 
count of,  William  Shipp,  and  not  for  himself,  he  would  be  obliged  to 
resort  to  the  principal  and  not  to  the  agent,  and  the  plaintiff  in  that 
case  could  not  recover. 

The  defendant's  counsel  asked  the  court  to  instruct  the  jury  that, 
although  the  defendant  contracted  in  his  name  without  disclosing  his 
princi[)al,  ^-et,  if  the  plaintiff  found  out,  after  the  contract  was  made, 
and  before  he  commenced  work,  that  he  was  acting  for  William  Shipp, 
he  could  not  recover  in  this  action. 

The  court  declined  giving  such  instructions ;  and  the  defendant 
excepted. 

The  defendant  relied  upon  the  fact  that  the  plaintiff  had  sold  iron 
and  castings,  to  a  large  amount,  belonging  to  William  Shipp,  and  in- 
sisted upon  this  counter-claim  as  a  set-off. 

But  the  court  instructed  the  jury  that  this  claim  in  favor  of  William 
Shipp  was  not  applicable  as  a  set-off  in  this  suit  against  the  defendant. 
Defendant  again  excepted. 

There  was  a  verdict  in  favor  of  the  plaintiff,  and  judgment  was 
rendered  thereupon.     Defendant  appealed. 

Lander  and  Aver//,  for  the  plaintiff. 

Tliompson  and  Iloke^  for  the  defendant. 

Pearson,  J.  There  is  no  error.  We  are  to  assume  from  the  ver- 
dict "  that  the  defendant  made  the  contract  in  his  own  name,  and 
engaged  himself  to  pa}-  the  plaintiff  for  his  work,  without  disclosing  the 
name  of  his  principal."  The  plaintiff  having  done  the  work,  why 
should  not  this  contract  be  binding  ? 

It  was  said  in  the  argument  that  there  was  no  consideration  in 
respect  to  the  defendant.  The  proposition  is  not  true.  The  contract 
was  supported  by  the  consideration  of  mutual  promises  between  the 
contracting  parties. 

The  fact  that  the  plaintiff  "  found  out,"  before  he  commenced  work, 
that  the  work  was  to  be  done  for  William  Shipp,  and  not  for  the  defend- 
ant (his  father),  was  immaterial ;  and  his  honor  properly  declined  to 
give  the  instruction  asked  for.  Suppose  William  Shipp  to  have  been 
an  infant,  or  a  bankrupt,  that  did  not  discharge  the  plaintiff  from  his 
promise  to  do  the  work  ;  therefore  it  could  not  discharge  the  defendant 
from  his  promise  to  pay  for  it. 

The  ruling  in  regard  to  the  defendant's  availing  himself  of  a  set-off, 
by  reason  of  a  supposed  balance  due  William  Shipp,  growing  out  of  the 
sale  of  castings,  was  in  strict  accordance  with  the  legal  rights  of  the 
parties.  If  William  Shipp  had  made  payments  to  the  plaintiff  (as  dis- 
tinguished from  a  set-off),  for,  and  on  account  of,  his  work,  that  would 
have  presented  a  different  question.  But  the  fact  that  the  plaintiff  (as 
was  alleged)  had  sold  castings  for  William  Shipp,  and  had  failed  to 


SECT,  v.]  HUTCHINSON    V.   WHEELER.  725 

account  Iherefor,  so  as  to  give  hira  a  right  to  sue  for  an  account,  was 
properly  excluded  from  the  inquiry  involved  in  the  issues  joined  be- 
tween the  plaintiff  and  defendant. 

Judgment  affirmed. 


HUTCHINSON  v.   WHEELER. 
SuPHKME  Judicial  Court  of  Massachusetts.     1862. 
[3  Alien,  577.] 

Contract  upon  an  account  for  work  and  labor. 

At  the  trial  in  the  Superior  Court,  a  trial  by  jury  was  waived,  and, 
upon  facts  which  are  stated  in  the  opinion,  judgment  was  rendered  for 
the  plaintiff,  and  the  defendant  alleged  exceptions. 

J.  E.  3Iai/nadt('r^  for  the  defendant. 

C.  C.  Esttj,  for  tlie  plaintiff. 

Dev^ey,  J.  The  defendant,  not  having  disclosed  the  fact  of  his 
agenc}-  at  the  time  of  making  the  contract  with  the  plaintiff  for  services 
to  be  rendered  by  him  at  a  stipulated  price,  is  personally  responsible 
for  the  payment  for  all  the  services  rendered  under  that  contract, 
unless  by  the  subsequent  facts,  and  the  acts  of  the  plaintiff  in  connec- 
tion therewith,  he  has  as  to  a  part  of  the  demand  been  discharged  from 
such  liabilit}'. 

These  facts  are,  1st,  That  the  plaintiff,  a  short  time  before  the  1st  of 
March,  1857,  and  several  months  after  the  labor  was  commenced,  was 
told  by  the  foreman  in  the  establishment  that  the  defendant  was  only 
an  agent,  and  that  the  "  Feltonville  Horse-shoe  Company  "  was  the 
principal ;  but  the  plaintiff  was  not  told,  and  did  not  know  who  com- 
posed that  compan}'.  The  compan}'  was  a  joint  stock  company,  and 
was  not  incorporated.  2dly,  The  plaintiff  after  hearing  this  statement 
altered  the  charge  on  his  books  for  the  labor  performed  under  this  con- 
tract prior  to  1st  March,  1857,  from  "  E.  Wheeler"  to  the  "Felton- 
ville Horse-shoe  Compan}-,"  and  this  continued  as  the  form  of  the 
charge  upon  the  books  until  a  short  period  before  the  commencement 
of  the  present  action,  when  the  plaintiff  altered  the  same  to  its  original 
form,  "  E.  Wheeler,  Dr."  In  the  opinion  of  the  court  these  facts  do 
not  constitute  a  defence  of  this  action.  The  agent  made  no  disclosure 
of  his  agency  that  authorized  any  change  in  the  name  of  the  debtor, 
nor  did  he  make  any  reference  to  any  other  party  who  was  responsible 
as  principal.  The  mere  casual  statement  made  to  the  plaintiff  by 
another  person  did  not  necessarily  affect  the  liability  of  the  defendant 
upon  the  contract  he  had  made  with  the  plaintiff.  It  is  true  that 
the  plaintiff  upon  discovering  the  undisclosed  principal  might  have  the 
election  to  resort  to  him  for  payment,  but  he  was  not  bound  to  do  so, 
when  be  had  contracted  with  one  who  did  not  disclose  his  agency. 


726  COBB   V.    KNAPP.  [chap.  V. 

Nor  do  the  facts  show  any  election  by  the  plahitiff  to  resort  to  the 
principal,  made  under  such  circumstances  as  to  discharge  the  agent. 
It  is  true  the  form  of  the  charge  on  the  book  was  altered,  anQ^  so 
remained  for  some  time.  But  no  notice  was  given  of  this,  and  this 
change  was  not  acted  upon,  and  no  attempt  was  made  to  enforce  the 
payment  of  the  claim  against  the  principal.  And,  indeed,  it  appears 
that  the  plaintiff  was  entirely  ignorant  who  were  the  parties  associated 
under  the  name  of  the  Feltonville  Horse-shoe  Company.  lie  could  not 
have  elected  to  charge  the  Feltonville  Horse-shoe  Company  under  that 
name  as  a  legal  principal,  because  there  was  no  sucli  legal  body.  He 
could  not  be  said  to  have  elected  to  resort  to  the  individuals  composing 
tliat  company,  as  his  debtors,  because  their  names  were  wholly  un- 
known to  them. 

The  rulings  of  the  Superior  Court  upon  the  question  of  law  raised 
before  that  court  were  correct.  Exceptions  overruled. 


COBB,   Respondent,   v.   KNAPP,   Appellant. 
Court  of  Appeals  of  New  York.     1877. 

[71  N.  Y.   348.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  affirming  a  judgment  in  favor  of  plaintiff, 
entered  upon  a  verdict.     (Reported  below,   10  J.  &  S.  91.) 

The  nature  of  the  action  and  facts  are  sufficiently  set  forth  in  the 
opinion, 

W.  A.  Course7i,  for  appellant. 

A/bert  Matthews,  for  respondent. 

Church,  C.  J.  This  was  an  action  for  the  purchase-price  of  a 
quantity  of  wheat  alleged  to  have  been  sold  by  the  plaintiff  to  the 
defendant.  The  defence  was  that  the  defendant  purchased  the  wheat 
as  agent  or  broker  for  C.  A.  Steen  &  Co.  It  seems  to  have  been  con- 
ceded that  the  defendant  did  in  fact  purchase  the  wheat,  as  a  broker, 
for  the  firm  named,  who  were  his  principals,  and  the  main  contention 
on  the  trial  was  whether  the  defendant  at  tlie  time  of  the  purchase  dis- 
closed his  principals,  and  whether  he  made  the  purchase  in  his  own 
name  and  upon  his  own  responsibility.  The  onlv  exception  in  the  case 
is  upon  a  refusal  to  grant  a  nonsuit,  and  a  request  to  direct  a  verdict 
for  the  defendant.  The  court  charged  the  jury  that  a  broker,  although 
acting  for  another,  makes  himself  personally  liable  if  he  contract  in  his 
own  name,  and  without  disclosing  the  name  of  his  principal,  and  that 
this  would  be  so,  although  the  seller  supposed  at  the  time  that  he  was 
acting  as  a  broker  or  agent  for  another;  that  the  subsequent  disclosure 
of  the  principal,  and  the  commencement  of  an  action  against  him  by 


SECT,  v.]  COBB   V.    KNAPP.  727 

the  seller,  would  not  discharge  the  broker  from  personal  liabilit}'. 
There  were  no  exceptions  to  the  charge,  and  I  do  not  understand  that 
the  learned  counsel  for  the  appellant  claims  that  it  was  erroneous  in 
these  respects  ;  but  he  insists,  from  the  facts  appearing  in  the  case, 
a  nonsuit  should  have  been  granted  or  verdict  ordered  for  the  defend- 
ant. There  was  a  sharp  conflict  of  evidence  between  the  parties  as  to 
what  took  place  at  the  time  of  the  contract.  This  court  has  no  power 
to  review  the  facts  any  further  than  to  ascertain  whether  they  are 
sufficient  upon  any  construction,  which  the  jurj-  were  authorized  to  give 
them  to  justif\'  a  verdict,  and  whether  any  fact  was  conchisivel}'  proved 
which,  as  matter  of  law,  entitled  the  defendant  to  a  verdict.  The 
credibility  of  witnesses,  the  construction  of  ambiguous  evidence,  and 
in  general  inferences  to  be  drawn  from  circumstances,  are  exclusively 
for  the  jury.  These  views  have  been  so  often  reiterated  by  this  court, 
that  it  seems  idle  to  refer  to  them,  and  quite  unnecessary  to  cite 
authorities  to  sustain  them.  It  is  natural  that  parties  who  feel 
aggrieved  by  verdicts  should  struggle  to  have  what  the}'  regard 
as  injustice  remedied,  and  hence  it  is  the  almost  dail}'  experience  of 
this  court  to  have  questions  of  fact  pressed  upon  our  attention  in  some 
form  as  questions  of  law,  while,  except  in  a  few  cases,  the  review  of 
facts  is  confined  by  statute  to  the  Special  and  General  Terms  of  the 
courts  below.  Our  jurisdiction  is  fixed  bj-  the  constitution  and  the  stat- 
ute, and  we  have  no  authority  to  depart  from  their  limitations.  In  this 
case  the  evidence  of  the  defendant,  which  was  to  some  extent  corrobo- 
rated, if  true,  established  clearl}-  a  case  of  non-liabilitv.  He  testified 
that  he  purchased  the  wheat  for  Steen  &  Co.,  and  so  informed  the 
plaintiflf,  and  that  it  was  understood  that  Steen  &,  Co.  was  to  pay  the 
purcliase-price,  and  that  the  plaintiff  did  not  make  an}-  claim  against 
him  at  the  time,  nor  for  several  years  afterwards.  But  for  the  purpose 
of  determining  whether  it  was  a  legal  error  to  den}'  the  motion  for  non- 
suit, we  must  take  the  evidence  of  the  plaintiff.  If  that  was  sufficient 
to  sustain  the  action,  the  jury  had  a  right  to  adopt  it.  The  plaintiff 
testified  that  not  only  was  the  principal  not  disclosed,  but  that  the 
defendant  expressly  purchased  the  wheat  on  his  own  credit,  and 
directed  that  it  be  charged  to  him  ;  that  it  was  charged  to  him,  and 
a  bill  made  against  him,  which  he  repeatedly  promised  to  pay.  If  the 
jury  adopted  the  plaintiff's  evidence,  it  made  a  clear  case  of  liability. 
(Story  on  Agency,  §§  266,  267  ;  44  N.  Y.  349.)  It  is  argued  that  be- 
cause the  defendant  stated  that  the  property  was  for  the  "Blissville 
Distillery,"  and  was  to  be  delivered  there,  that  was  a  sufficient  dis- 
closure of  the  principal,  but  this  is  not  conclusive.  The  plaintiflf  states 
that  he  did  not  know  the  proprietors  of  the  distillery,  and  that  the 
defendant  directed  the  property  to  be  charged  to  him. 

The  case  of  Waddell  7x  Mordecai  (3  Hill  [South  Carohna  Rep.]  22) 
is  cited.  That  was  an  action  against  the  defendant  to  recover  $100 
paid  on  a  contract  executed  by  the  defendant  as  agent  of  a  brig,  and 
Bigned  "  M.  C.  Mordecai  for  the  owners,"     The  agent  had  paid  the 


728  COBB   V.    KNAPP.  [chap.  V. 

money  to  his  principals  before  the  eoinmencement  of  the  action,  and 
the  court  held  that  the  plaintiffs  could  not  recover.  The  learned  judge 
who  delivered  the  opinion  reasoned  that  the  disclosure  was  sufficient, 
but  put  the  decision  upon  the  ground  mainly,  that  it  appearing  that  the 
defendant  had  acted  in  good  faith  and  delivered  the  mone}'  to  his 
principals,  the  equitable  action  for  raonej'  had  and  received  could  not 
be  sustained.  The  general  current  of  authority  is  against  the  sufficienc}' 
of  such  a  signing  to  relieve  the  agent  from  liability,  but  it  is  unnecessary 
to  express  an  opinion  of  its  correctness,  because  in  this  case  the  agent, 
if  the  plaintiff's  evidence  is  to  be  credited,  contracted  expressly  on 
his  own  credit.  The  other  case  depended  on  is  Southwell  v.  Bowditch 
(1  Law  Rep.  [Com.  Pleas  Div.]  100,  and  same  case  on  Appeal, 
p.  374).  The  contract  signed  by  the  defendant  was  :  "I  have  this  day 
sold  b}'  your  order,  and  for  your  account  to  my  principals,  five  tons," 
&.C..  The  Common  Pleas  Division  held  this  to  be  a  contract  of 
purchase  by  the  broker,  and  that  he  was  liable.  The  Court  of  Appeals 
reversed  the  decision,  holding  that  it  was  a  contract  of  sale  by  the 
broker,  and  not  of  purchase,  and  that  it  must  be  construed  according 
to  its  tenor  like  other  contracts.  This  decision  does  not  aid  the 
defendant. 

The  case  of  Ra3-mond  r.  The  Proprietors  of  the  Crown  and  Eagle 
Mills  (2  Met.  319)  is  in  point  for  the  plaintiff.^  .   .  . 

The  subsequent  disclosure  of  the  principals  by  the  agent,  and  the 
commencement  of  an  action  against  them,  is  not  conclusive  of  an 
election  to  hold  them  responsible  only.  (2  Met.  supra;  10  Queen's 
Bench  [L.  R.]  57.)  In  the  recent  case  of  Beymer  r.  Bonsall  (79  Penn. 
R.  298),  it  was  held  that  neither  the  agent  nor  principal  in  such  a  case 
would  be  discharged  short  of  satisfaction.  The  fact  of  commencing 
the  action  and  the  statements  in  the  complaint  were  proper  for  the  jury 
upon  the  contested  fact,  but  they  did  not  operate  as  a  legal  discharge. 
It  was  claimed  by  the  plaintiff  that  the  action  was  commenced  upon 
the  representation  of  the  defendant,  that  a  certain  responsible  person 
was  a  member  of  the  firm  of  Steen  &,  Co.,  which  was  untrue  ;  but,  how- 
ever this  was,  it  did  not  discharge  the  defendant. 

The  case  was  properly  submitted  to  the  jur}-,  and  if  the  result  is 
wrong,  it  was  the  error  of  the  jury.  We  are  unable  to  find  any 
exception  in  the  case  justifying  a  reversal  of  the  judgment,  and 
it  must  be  aflSrmed. 

All  concur.  Judgment  affirmed. 

*  Here  was  stated  Raymond  v.  Crown  &  Eagle  Mills,  2  Met.  319.  —  Ed. 


SECT.  V.J  ATKINSON   V.   COTESWOETH.  729 

SECTION  V.     (continued). 

(D)  In  an  Action  brought  by  the  Agent  against  the  Third  Partt 

ATKINSON  V.  COTES  WORTH. 
King's  Bench.     1825. 

[3  B.  Sr  C.  647.] 

Assumpsit  on  a  charter  part}-,  not  under  seal,  whereby  it  was 
mutually  agreed  between  the  plaintiff,  commander  of  the  &\i\^Agaphea, 
then  lying  in  the  river  Thames,  and  the  defendant,  that  the  vessel 
should  take  a  cargo  to  Pernambuco,  and  bring  a  cargo  thence  to  Lon- 
don or  Liverpool,  according  to  the  directions  of  the  charterers'  agent 
in  the  Brazils,  and  deliver  the  same,  on  being  paid  freight,  at  and  after 
a  certain  rate  therein  specified,  by  a  good  bill,  payable  at  two  months 
from  the  day  of  final  discharge.  Breach,  non-payment  of  freight. 
Plea,  non-assumpsit.  At  the  trial  before  Abbott,  C.  J.,  at  the  London 
sittings  after  last  Trinity  term,  it  appeared  that  the  plaintiff,  at  the 
time  of  making  the  charter  part}',  was  the  commander  of  the  AgajyJiea, 
whereof  David  Hodgins,  then  resident  in  Ireland,  was  owner.  Before 
the  vessel  returned  to  England,  Hodgins,  being  dissatisfied  with  the 
plaintiff,  appointed  one  Bain  as  liis  agent,  to  receive  the  freight,  and 
gave  notice  to  the  defendant  to  pa}-  it  to  him,  which  he  accordingly 
did  ;  but  before  it  was  paid,  the  plaintiff  demanded  that  it  should  be 
paid  to  himself  and  not  to  Bain.  Upon  these  facts  the  Lord  Chief- 
Justice  non-suited  the  plaintiff,  but  gave  his  counsel  leave  to  move  to 
enter  a  verdict  in  his  favor  for  £80,  which  appeared  to  be  due  to  him 
from  the  owner.  In  Michaelmas  terra  Gurney  obtained  a  rule  accord- 
ingly, and  now 

Snirlett  and  Campbell  showed  cause.  The  plaintifl"  in  this  case  was 
merely  the  agent  of  the  owner,  and  made  the  charter  party  for  his 
benefit.  In  the  absence  of  any  interference  by  the  owner,  he  might 
have  claimed  the  freight  from  the  defendant.  But  when  the  owner 
intervened,  and  desired  the  freight  to  be  paid  to  a  third  person,  the 
authority  of  the  captain  was  at  an  end.  He  had  not  any  prospective 
lien  for  his  wages,  although,  if  he  had  received  the  money,  ho  might 
then  have  set  off  the  sum  due  for  wages,  had  he  been  sued  by  the 
owner  for  the  money  so  received.  If  a  factor  receives  the  proceeds  of 
goods  sold  by  him  he  has  a  lien  on  the  money,  but  he  cannot  claim  the 
proceeds  from  the  vendee,  if  his  principal  intervenes,  and  desires  the 
payment  to  be  made  to  himself.  Smith  v.  Plummer,  1  B.  &  A.  575,  is 
expressly  in  point. 

Gurruy  and  CJtitty,  contra.  The  case  of  Smith  v.  Plummer  differs 
materially  from  the  present.     It  does  not  appear  that  any  charter  party 


730  GIBSON   V.    WINTER.  [CHAP.  V, 

was  executed  in  that  case  between  the  captain  and  the  defendant ;  the 
latter  therefore  had  never  contracted  to  pay  freight  to  the  captain.  In 
the  present  case,  the  plaintiff  was  the  person  who  chartered  tlie  ship  to 
the  defendant ;  and  it  does  not  appear  on  the  face  of  the  instrument 
that  he  was  not  owner ;  the  defendant  must,  therefore,  be  taken  to 
have  contracted  to  pay  the  freiglit  to  him,  and  could  not  exonerate 
himself  from  his  liability  by  paying  it  to  a  third  person. 

Abbott,  C.  J.  I  am  unable  to  discover  an}'  solid  distinction  be- 
tween the  present  case  and  that  of  Smith  v.  Plummer.  Upon  the 
authority-  of  that  case,  therefore,  I  am  of  opinion  that  the  nonsuit  was 
right.  The  onl}'  distinction  now  pointed  out  between  the  two  cases  is, 
that  in  the  present  instance  a  charter  party  was  entered  into,  and  tliat 
it  does  not  appear  that  an^'  such  instrument  existed  in  Smith  v.  Plum- 
mer. Let  us  suppose  that  no  charter  part}-  was  made  in  that  case, 
then  the  freight  would  be  made  payable  generally  by  the  bill  of  lading, 
signed  by  the  commander  of  the  vessel.  Now  the  charter  party  en- 
tered into  by  this  plaintitf  and  defendant  does  not  specif}'  to  whom  the 
freight  was  to  be  paid  ;  in  that  respect,  therefore,  the  case  is  the  same 
as  if  the  freight  had  been  stipulated  for  by  a  common  bill  of  lading. 
The  master  of  a  ship  has  no  prospective  lien  on  the  freight,  and  cannot 
insist  upon  having  it  paid  to  himself,  although  a  payment  to  him  in  the 
absence  of  any  notice  by  the  owner  to  the  charterer  to  withhold  it, 
would  be  a  good  and  valid  payment.  For  these  reasons  I  think  that 
this  rule  must  be  discharged.  Hule  discharged. 


GIBSON  V.  WINTER. 
King's  Bench.     1833. 

[5  B.  ^-  Ad.  96.] 

Covenant  on  a  policy  of  assurance  under  seal,  executed  by  the 
defendants,  two  of  the  directors  of  the  Indemnity  Mutual  Marine 
Assurance  Company,  wherein,  after  reciting  that  the  plaintiff  liad 
represented  to  the  defendants  that  he  was  interested  in,  or  duly  author- 
ised as  owner,  agent,  or  otherwise,  to  make  the  assurance,  and  had 
covenanted  to  pay  the  premium,  it  was  witnessed,  that  in  consideration 
of  the  premises,  and  of  £80,  the  defendants  covenanted  with  the  plain- 
tiff that  the  capital  stock  and  funds  of  the  company  should  be  lial)le  to 
pay  and  make  good  all  such  losses  as  might  happen  to  the  subjeet- 
matter  of  that  policy  in  respect  of  the  sum  of  £4000  thereby  assured, 
which  assurance  was  thereby  declared  to  be  upon  goods  laden  on 
board  the  ship  called  The  Courier.,  lost  or  not  lost,  at  and  from  Rio  de 
Janeiro  to  a  market  in  Europe.  The  usual  clauses  of  the  policy  de- 
scribing the  risks,  &c.,  were  then  set  out.     The  interest  in  the  goods 


SECT,  v.]  GIBSON    V.    WINTER.  731 

was  averred  to  be  in  one  Le  Quesne,  and  a  loss  by  the.  perils  of  the 
sea.  Breach,  nonpayment  of  the  sum  of  £4000  by  the  defendants. 
Plea  (among  others),  that  the  defendants  within  a  reasonable  time 
after  the  loss,  and  before  the  commencement  of  this  suit,  to  wit,  on, 
&c.,  at,  &c.,  paid  to  the  plaintiff,  out  of  the  capital  stock  and  funds  of 
the  compan\',  the  said  sum  of  £1000  in  the  said  policy  of  assurance  men- 
tioned, according  to  the  tenor  and  effect,  true  intent  and  meaning  of 
the  said  policy ;  and  upon  this  issue  was  joined.  At  the  trial  before 
Lord  Tenterden,  C.  J.,  at  the  London  sittings  after  Hilary  term,  1833, 
the  following  appeared  to  be  the  facts  of  the  case  :  The  polic}'  was 
effected  on  goods  the  property  of  Mr.  Le  Quesne  of  Jersey,  who 
employed  the  plaintiff  and  his  partner,  one  Poindestrie,  insurance 
brokers  in  London,  for  that  purpose.  A  loss  having  occurred,  a  par- 
tial adjustment  to  the  amount  of  £3000  took  place  in  1829  between 
the  plaintiff  and  defendants,  the  defendants  then  knowing  that  Le 
Quesne  was  the  part}'  interested  in  the  goods  insured.  The  defend- 
ants on  that  occasion  gave  credit  to  the  plaintiff  for  £1524  9s  due  from 
him  to  them  for  premiums  of  insurance  on  ships  and  property  of  other 
persons,  in  part  payment  of  this  £3000,  and  paid  the  balance,  £1475 
lis.,  in  cash  to  the  plaintiff.  On  the  17th  of  July  the  plaintiff 
informed  Le  Quesne,  by  letter,  that  he  had  obtained  a  settlement  of 
£3000  on  account,  which  sum  would  appear  to  the  credit  of  his,  Le 
Quesne's,  account  at  two  months  from  that  date.  Le  Quesne,  in  his 
answer,  said,  "  The  same  is  placed  in  due  conformity."  In  the  first 
week  of  October,  1829,  the  plaintiff  became  bankrupt,  without  having 
paid  over  to  Le  Quesne  either  the  amount  received  b}'  him  or  that 
allowed  in  account  bj'  the  defendants,  and  this  action  was  in  fact 
brought  by  Le  Quesne  in  the  name  of  the  plaintiff  to  recover  from  the 
defendants  £1524  9s.,  on  the  ground  that  the  plaintiff  was  authorized 
to  receive  the  amount  of  the  loss  in  mone}'  only,  and  that  a  payment 
in  an}'  other  wa}'  was  not  binding  on  his  principal.  Lord  Tenterden 
was  of  opinion  that  that  general  rule  ought  to  prevail,  unless  Le  Quesne 
had,  in  this  case,  recognized  and  adopted  the  mode  of  payment ;  and 
observed  that  if  the  mode  of  payment  had  been  made  known  to  Le 
Quesne,  and  he  had  not,  within  a  reasonable  time,  objected  to  it,  he 
must  be  taken  to  have  adopted^it;  that  the  question  was,  whether  he 
did  know  it.  Gibson,  his  Lordship  observed,  in  his  letter  of  the  17th 
of  July,  informed  Le  Quesne  only  that  he  had  obtained  an  adjustment 
to  the  amount  of  £3000,  not  that  he  had  received  actual  payment  of 
that  sum,  and  that  that  sum  would,  at  the  end  of  two  months,  be 
placed  to  his,  Le  Quesne's,  credit :  Le  Quesne,  in  his  answer,  after 
adverting  to  the  adjustment,  said,  "the  same  is  placed  in  due  con- 
formity." And  he  told  the  jury  to  find  for  the  defendants  if  they 
thought  Le  Quesne  meant  to  give  credit  for  £3000  to  Gibson,  and  to 
accept  him  as  his  debtor  instead  of  the  defendants.  The  jury  found 
for  the  defendants. 

A   rule   7iisi  was  obtained  for  a  new  trial,  on  the  ground  that  Le 


732  GIBSON   V.    WINTER.  [cHAP.  V. 

Quesne's  assent  was  not  proved,  and  that  although  in  general  where  an 
agent  is  employed  to  receive  mone}-  of  a  debtor,  and  the  debtor  pays 
him  mone}',  the  debtor  is  discharged,  yet  if  the  debtor  does  not  pay  in 
money,  but  settles  the  account  by  writing  off  so  much  money  as  may  be 
due  from  the  agent  to  him,  the  latter  is  not  discharged. 

Sir  J.  Campbell^  S.  G.,  Sir  J.  Scarlett,  and  Tomlinson  showed 
cause, 

R.   V.  Richards,  contra.  (Jur.  adv.  vult. 

Denman,  C.  J.  On  the  trial  before  the  late  Lord  Tenterden,  at 
the  sittings  after  Trinity  term,  the  defendant  had  a  verdict,  on  the 
ground  that  Le  Quesne  had  acquiesced  in,  and  adopted  the  mode  of, 
payment  to  the  plaintiff,  and  was  bound  by  it.  Mr.  Pollock  moved  for 
a  new  trial  in  the  following  term :  The  case  was  afterwards  full}' 
argued  before  us  ;  and  if  it  had  depended  upon  the  propriet}-  of  the 
verdict  we  should  have  thought  it  right  to  submit  the  case  to  the  con- 
sideration of  another  jur}',  for  we  are  by  no  means  satisfied  that  there 
was  sufficient  evidence  of  adoption  by  Le  Quesne,  as  he  was  never 
correctly  informed  of  the  real  state  of  facts. 

Another  objection  was,  that  as  the  covenant  was  with  Gibson,  and  he 
only  could  sue  upon  it,  payment  to  him,  in  any  mode  by  which  he  was 
bound,  would  be  a  good  payment  as  against  Le  Quesne  ;  and  that  as 
the  settlement  with  the  plaintiff  bound  him,  it  equally  bound  Le  Quesne 
suing  in  his  name.  And  upon  full  consideration,  we  are  of  opinion 
that  this  objection  is  valid. 

The  plaintiff,  though  he  sues  as  a  trustee  of  another,  must,  in  a 
court  of  law,  be  treated  in  all  respects  as  the  party  in  the  cause :  if 
there  is  a  defence  against  him,  there  is  a  defence  against  the  cestui  que 
trust  who  uses  his  name  ;  and  the  plaintiff  cannot  be  permitted  to  say 
for  the  benefit  of  another  that  his  own  act  is  void,  which  he  cannot  say 
for  the  benefit  of  himself. 

The  following  are  the  authorities  which  appear  to  us  fully  to  warrant 
this  position.  In  Bauerman  v.  Radenius  (in  which  the  question  was, 
whether  the  admission  by  the  plaintiff,  who  was  clearly  a  trustee  for 
another,  could  be  received  in  evidence).  Lord  Kenyon,  7  T.  R.  668, 
says  :  "If  the  question  that  has  been  made  in  this  case  had  arisen 
before  Sir  Matthew  Hale,  or  Lords  Holt  or  Hardwicke,  I  believe  it 
would  never  have  occurred  to  them,  sitting  in  a  court  of  law,  that  they 
could  have  gone  out  of  the  record,  and  considered  third  persons  as  par- 
ties to  the  cause.  If  the  plaintiffs  may  be  taken  to  be  off  the  record, 
then  they  may  be  examined  as  witnesses ;  and  yet  it  is  not  pretended 
they  could  have  been  examined.  I  cannot  conceive  on  what  ground 
it  can  be  said  that  they  may  be  considered  not  as  the  parties  to  the 
cause  for  the  purpose  of  rejecting  their  admissions,  and  yet  as  the 
parties  to  the  cause  for  the  purpose  of  preventing  their  being  examined 
as  witnesses.  I  take  it  to  be  an  incontrovertible  rule,  that  an  admis- 
sion made  by  the  plaintiff  on  the  record  is  admissible  evidence."     So  a 


SECT,  v.]  GIBSON   V.   WINTER.  733 

release  by  the  plaintiff  on  the  record  suing  for  tlie  benefit  of  another 
was  decided,  in  a  case  before  Lord  Mansfield  (cited  in  Bauer  man  v. 
Radenius,  7  T.  K.  GGG),  to  be  a  good  answer  at  law,  and  Lawrence,  J., 
expresses  the  same  opinion  in  the  case  last  mentioned  ;  and  courts  of 
law  have  been  in  the  habit  of  exercising  an  equitable  jurisdiction  on 
motion,  and  setting  such  releases  aside,  or  preventing  the  defendant 
from  pleading  them,  as  in  Legh  v.  Legh,  1  Bos.  &  P.  447,  Payne  v. 
Rogers,  Doug.  407,  Jones  v.  Herbert,  7  Taunt.  421,  and  Abbott,  C.  J., 
in  Scaife  v.  Johnson,  3  B.  &  C.  422,  and  many  other  cases,  which 
practice  shows  very  clearly  the  opinion  of  the  courts,  that,  but  for 
their  equitable  interference,  the  real  plaintiff  would  be  barred.  In  Craib 
V.  D'Aeth,  7  T.  R.  670,  note  (b),  the  circumstances  of  fraud  upon  the  real 
plaintiff  were  replied  ;  but  no  objection  appears  to  have  been  taken  on 
this  ground,  and  the  general  practice  is  undoubtedly  to  apply  specially 
to  the  court.  Again,  in  Alner  v.  George,  1  Campb.  392,  where  trus- 
tees, for  the  benefit  of  creditors,  sued  in  the  name  of  the  insolvent, 
Lord  EUenborough  held  that  a  receipt  in  full  for  the  amount  by  the 
plaintiflT  was  an  answer  to  the  action;  and  his  Lordship  said:  "  If  a 
motion  had  been  made  in  term  time  to  prevent  the  defendant  frgm 
availing  himself  of  this  defence,  perhaps  we  might  have  interfered. 
Sitting  here,  I  can  only  look  to  the  strict  legal  rights  of  the  parties  upon 
the  record  ;  and  there  can  be  no  doubt  that  a  receipt  in  full,  where  the 
person  who  gave  it  was  under  no  misapprehension,  and  can  complain 
of  no  fraud  or  imposition,  is  binding  upon  him.  The  plaintiff  might 
have  released  the  action  ;  and  it  is  impossible  to  admit  evidence  of  his 
attempting  to  defraud  others." 

In  Jones  r.  Yates,  9  B.  &  C.  539,  Lord  Tenterden  says:  "  "We  are 
not  aware  of  an}-  instance  in  which  a  person  has  been  allowed,  as  plain- 
tiff in  a  court  of  law,  to  rescind  his  own  act,  on  the  ground  that  such 
act  was  a  fraud  on  some  other  person,  whether  the  part}'  seeking  to  do 
this  has  sued  in  his  own  name  only,  or  jointly  with  such  other  person  ;  " 
and  therefore  it  was  held,  that  where  one  of  two  partners  disposed  of 
some  of  their  effects  in  fraud  of  the  other,  both  could  not  sue  in  a  court 
of  law  to  recover  for  them,  in  an  action  of  trover. 

Upon  principle,  and  upon  these  authorities,  we  are  of  opinion  that 
if  there  be  a  good  defence  against  the  plaintiff,  there  is  a  good  defence 
against  Le  Quesne  suing  in  his  name. 

The,  only  remaining  question  is,  whether  there  is  a  good  defence 
against  the  plaintiff. 

Now,  if  the  plaintiff  was  suing  for  himself,  it  is  clear  that  the  plea  of 
payment  would  have  been  proved ;  for  credit  given  to  the  plaintiff  bj' 
mutual  agreement  for  the  amount  of  the  premiums  was  equivalent  to 
payment  by  the  plaintiff  to  defendants  of  that  amount  on  account  of 
the  premiums,  and  a  payment  b}'  the  defendants  to  the  plaintiff  of  the 
same  sum  on  account  of  the  loss. 

We  therefore  think  that  the  defendants  were  no  longer  liable  ;  but  as 
this  point,  upon  which  we  decide  the  case,  was  intended  to  have  been 


734  ISBERG   V.    BOWDEN.  [CHAP.  V. 

reserved,  if  necessar}',  b\'  Lord  Tenterden,  in  which  case  a  non- 
suit would  have  been  directed,  we  think  that  a  similar  rule  should  be 
now  pronounced.  Nonsuit  to  be  entered. 


ISBERG  V.    BOWDEN. 

Exchequer.     1853. 

[8  Exch.  852.] 

This  was  an  action  on  a  charter  party  for  freight.  The  declaration 
stated  that  it  was  agreed  b}'  charter  party,  between  the  plaintiff,  therein 
described  as  the  master  of  the  ship  Clio,  and  the  defendant,  that  the 
said  ship  should  proceed  to  certain  places  in  the  sea  of  Azof  (in  the 
charter  party  mentioned),  and  load  a  cargo  of  tallow,  &c.,  to  discharge 
the  same  at  certain  ports  (also  mentioned)  at  a  certain  freight,  one 
half  of  such  freight  to  be  paid  in  cash  on  unloading  and  right  deliver}' 
of  the  cargo,  and  the  remainder  by  approved  bills  on  London,  at  three 
months'  date,  or  in  cash,  less  discount,  at  £5  per  cent  per  annum,  at 
merchant's  option.  The  declaration  then  proceeded  to  state  the  load- 
ing of  the  vessel  with  a  complete  cargo,  and  the  unloading  thereof  at 
the  port  of  discharge,  the  amount  of  the  freight,  that  the  defendant  had 
notice,  and  that,  although  the  defendant  had  paid  the  plaintiff  one-half 
the  amount  of  the  freight,  3et  he  had  not  paid  the  residue,  or  satisfied 
the  plaintiff's  claim  by  approved  bills. 

The  defendant  pleaded,  as  to  £87  6.S.,  parcel  of  such  residue,  that 
the  plaintiff  entered  into  the  charter  party  as  the  master  of  the  vessel 
for  and  on  behalf  and  as  agent  of  one  Carl  Gustaff  Wolff,  the  owner  ; 
and  that  the  plaintiff  has  no  beneficial  interest  in  the  charter  party,  and 
has  no  lien  whatever  on  the  residue  of  the  freight  or  any  part  thereof; 
and  that  the  plaintiff  has  brought  this  action  solely  as  agent  and  trustee 
of  the  said  owner ;  and  that  at  the  time  the  residue  of  the  freight  be- 
came due  and  payable,  the  defendant  gave  the  plaintiff  notice  that  he 
elected  to  pay  the  residue  of  the  freight  in  cash  less  discount,  at,  &c., 
and  not  by  bills  ;  and  further,  that  at  the  time  when  the  residue  of  the 
freight  became  due  and  payable,  the  saidC.  G.  Wolff  was  and  still  is  in- 
debted to  the  defendant  in  an  amount  equal  to  the  said  sum  of  £86  Qs. 
The  plea  concluded  by  offering  to  set  off  that  amount  in  the  usual  way. 

Demurrer,  and  joinder. 

The  demurrer  was  argued  in  last  Easter  Term  (Ma}-  4)  by 

Unt/iank,  in  support  of  the  demurrer. 

MelUsh,  contra. 

Martin,  B.^  Mr.  Unthank,  in  support  of  the  demurrer,  contended, 
that,  as  the  plea  was  bad  at  common  law,  and  could  only  be  supported 

1  After  stating  the  case.  —  Ed. 


SECT,  v.]  ISBERG   V.    BOWDEN".  735 

by  virtue  of  the  statute  of  set-off,  2  Geo.  2,  c.  22,  s.  13  ;  8  Geo.  2,  c. 
24,  s.  5,  inasmuch  as  the  plaintiff  in  the  action  was  not  the  debtor  to 
the  defendant,  the  ease  was  not  within  the  statute.  Mr.  MelUsh,  on 
the  other  hand,  admitted  tliat  the  plea  was  bad  at  common  law,  but 
contended  that  the  statute  had  received  a  construction  in  several  cases, 
which  he  cited,  and  to  wliich  we  shall  presently  refer ;  and  that,  upon 
such  construction,  the  plea  could  be  maintained. 

The  statute  enacts,  "•  That  where  there  are  mutual  debts  between 
the  plaintiff  and  the  defendant  one  debt  may  be  set  against  the  other." 
Tiiis  is  the  whole  enactment  as  applicable  tg  the  present  case,  and 
upon  its  true  construction  the  question  depends.  If  the  words  of  the 
statute  had  been,  that  where  there  were  "  mutual  debts"  the  one  might 
be  set  against  the  other,  the  argument  of  Mr.  Mellish  would  have  had 
more  weight ;  but  those  are  not  the  only  words,  for  the  debts  are  to  be 
mutual  debts  between  the  plaintiff  and  the  defendant,  and  there  is  no 
debt  here  due  from  the  plaintiff  at  all ;  and  except  the  words  "  between 
the  plaintiff  and  the  defendant"  can  be  excluded,  the  plea  cannot  be 
maintained. 

In  support  of  his  view,  Mr.  Mellish  cited  the  case  of  Coppin  v.  Craig, 
7  Taunt.  243,  where  a  plea  in  substance  the  same  as  the  present  was 
pleaded.  The  plea  was  not  demurred  to,  and  its  validity  or  non-validity 
in  point  of  law  seems  never  to  have  been  considered  at  all,  and  the 
matter  decided  by  the  court  was  quite  collateral  to  the  present  question. 
So  also  a  case  of  Jarvis  v.  Chappie,  2  Chit.  Rep.  387,  where  a  similar 
plea  was  pleaded,  was  relied  on.  That  was  an  action  b}'  an  auctioneer 
for  goods  sold  and  delivered,  and  the  defendant  pleaded  that  the  plain- 
tiff sold  as  agent  for  one  Tappinger,  who  was  indebted  to  the  defend- 
ant, which  debt  was  pleaded  as  a  set-off.  The  plaintiff  replied,  that 
the  goods  were  not  the  goods  of  Tappinger,  and  were  not  sold  by  the 
plaintiff  as  his  agent ;  upon  which  issue  was  joined.  The  plaintiff  was 
nonsuited  at  the  trial,  and  the  application  to  the  court  was  to  set  aside 
this  nonsuit.  It  is  at  once,  therefore,  obvious  that  the  present  question 
could  not,  by  possibilit}',  have  arisen  under  such  circumstances. 

The  case  of  Carr  v.  Hinchliff,  4  B.  &  C.  547,  and  several  other  cases 
decided  on  the  same  principle,  were  also  cited.  It  is  quite  true  that 
there  are  expressions  in  the  judgments  of  the  learned  judges  in  that 
case  which  seem  to  support  Mr.  Mellish's  argument ;  but  the  real 
ground  upon  which  that  and  man}'  other  cases  proceeded,  decided  on 
the  same  point,  is,  that  where  a  principal  permits  an  agent  to  sell  as 
apparent  principal,  and  afterwards  intervenes,  the  bu3-er  is  entitled  to 
be  placed  in  the  same  situation  at  the  time  of  the  disclosure  of  the  real 
principal,  as  if  the  agent  had  been  the  real  contracting  party,  and  is 
entitled  to  the  same  defence,  whether  it  be  by  common  law  or  by 
statute,  payment  or  set-off,  as  he  was  entitled  to  at  that  time  against 
the  agent,  the  apparent  principal.  The  cases  of  Carr  v.  Hinchliff, 
George  v.  Claggett,  Rabone  r.  Williams,  &c.,  are  all  explained  on  that 
principle  in  Tucker  v.  Tucker,  4  B.  &  Ad.  750.     By  this  case,  and  that 


736  KHOADES   V.    BLACKISTON.  [cHAP.  V. 

of  Wake  v.  Tinkler,  16  East,  36,  and  a  case  referred  to  by  Marryatt 
(Lane  v.  Chandler,  7  East,  153),  the  cases  of  Bottimlej'  v.  Brook, 
1  T.  R.  622,  and  Rudge  v.  Buck,  1  T.  R.  622,  must  be  considered  as 
entireh'  overruled  ;  and  the  case  of  Tucker  v.  Tucker  goes  far  to  show 
that  the  statute  of  set-off  is  confined  to  the  legal  debts  between  the 
parties,  the  sole  object  of  the  statute  being  to  prevent  cross  actions 
between  the  same  parties. 

The  case  of  Stackwoad  v.  Dunn,  3  Q.  B.  822,  was  cited  on  behalf  of 
the  defendant.  It  is  enough  to  say,  that  this  case  goes  much  beyond 
that.  In  that  case,  it  seems  to  have  been  ruled  that,  the  demurrer 
having  confessed  the  truth  of  the  pleas,  the  parties  to  the  suit  ought  to 
be  considered  those  who  are  alleged  in  the  plea,  and  so  the  set-off  was 
between  the  parties.  The  cases  cited  in  Story  on  Agenc}',  page  361, 
sect.  409,  as  the  authorities  for  what  is  there  stated,  are  those  already 
adverted  to  from  7  Taunt.  237  and  243,  and  have  been  shown  not  to 
support  the  general  proposition. 

In  this  case  the  part}'  whom  the  defendant  agreed  to  pa}'  was  the 
plaintiff,  but  the  plaintiff  was  not  the  party  who  agreed  to  pay  the  de- 
fendant the  debt  sought  to  be  set  off;  and  we  think  that,  looking  at 
the  plain  words  of  the  statute,  we  best  give  effect  to  the  true  rule  now 
adopted  by  all  the  courts  at  Westminster  for  its  construction,  by  hold- 
ing that,  inasmuch  as  the  debts  are  not  mutual  debts  between  the 
plaintiff  and  the  defendant,  the  one  cannot  be  a  set-off  against  the 
other. 

This  is  acting  upon  the  rule  as  to  giving  effect  to  all  the  words  of  the 
statute,  a  rule  universally  applicable  to  all  writings,  and  which,  we 
think,  ought  not  to  be  departed  from  except  upon  very  clear  and  strong 
grounds,  which  do  not,  in  our  opinion,  exist  in  this  case. 

Judgment  for  the  plaintiff } 


RHOADES   V.    BLACKISTON   and   others. 
Supreme  Judicial  Court  of  Massachusetts.     1871. 

[106  Ma^s.  334.] 

Contract  for  breach  of  an  agreement  to  sell  and  deliver  coal.  At 
the  trial  in  this  court,  before  Colt,  J.,  the  plaintiff  testified  that  after 
the  making  of  the  alleged  agreement,  and  its  breach  by  the  defendants, 
he  was  adjudged  a  bankrupt ;  "  that  he  made  the  agreement  while  act- 
ing as  agent  of  Alonzo  V.  Lynde,  under  authority  from  him,  and  made 
it  as  agent ;  that  he  owed  Lynde  a  large  sum  of  money,  and  had  trans- 
ferred his  coal  business  to  him  as  security  for  the  debt ;  that  it  was 
agreed  between  them,  that  Lynde  was  to  furnish  the  capital,  and  was 

1  Ace:  Alsop  V.  Caines,  10  Johns  396  (1813).  — Ed. 


SECT,  v.]  RHOADES   V.    BLACKISTON.  737 

to  receive  all  the  profits  of  the  business,  except  enough  to  support  the 
plaintiff  and  his  family,  until  the  debt  should  be  paid  ;  that  after  the 
debt  was  paid  the  property  was  to  be  his,  and  the  profits  of  the  busi- 
ness ;  and  that  he  had  no  property  in  the  coal,  or  interest  other  than 
as  stated,  and  his  own  money  was  not  invested  in  the  business  ;  but 
that  he  was  to  have  his  living  out  of  the  business  until  the  debt  was 
paid." 

The  defendants  objected  that  the  plaintiff  could  not  maintain  the 
action,  and  the  judge  reported  the  case  for  the  determination  of  the 
full  court,  if  the  court  should  be  of  opinion  that  the  plaintiff  could  not 
maintain  the  action,  judgment  to  be  for  the  defendants,  otherwise  the 
case  to  stand  for  trial. 

T.  H.  Sweetser  and  C.  Abbot,  for  the  plaintiff. 

W.  A.  Field,  for  the  defendants. 

Colt,  J.  It  is  a  well-established  rule  of  law,  that  when  a  contract, 
not  under  seal,  is  made  with  an  agent  in  his  own  name  for  an  undis- 
closed principal,  either  the  agent  or  the  principal  may  sue  upon  it.  If 
the  agent  sues,  it  is  no  ground  of  defence  that  the  beneficial  interest  is 
in  another,  or  that  the  plaintiff,  when  he  recovers,  will  be  bound  to 
account  to  another.  There  is  an  additional  reason  for  giving  this 
right  to  the  agent,  when  he  has  a  special  interest  in  the  subject  matter, 
or  a  lien  upon  it.  But  the  rule  prevails  when  the  sole  interest  under 
the  contract  is  in  the  principal.  The  agent's  right  is  of  course  subor- 
dinate to  and  liable  to  the  control  of  the  principal,  to  the  extent  of  his 
interest.  He  may  supersede  it  by  suing  in  his  own  name,  or  otherwise 
suspend  or  extinguish  it,  subject  only  to  the  special  right  or  lien  which 
the  agent  may  have  acquired.  Colburn  v.  Phillips,  13  Gray,  64.  Fair- 
field V.  Adams,  16  Pick.  383.     Story  on  Agency,  §  403. 

In  this  case,  the  contract  relied  on  was  made  by  the  plaintiff  in  his 
own  name,  as  agent  for  an  undisclosed  principal,  who  does  not  now  in 
any  way  interpose.  But  admitting  the  law  of  principal  and  agent  as 
that  stated,  the  defendants  further  contend  that  the  plaintiff's  right  of 
action  passed  to  his  assignees  in  bankruptcy,  who  were  appointed  in 
proceedings  commenced  after  the  alleged  breach.  It  appears  that  the 
plaintiff  made  the  contract  in  the  course  of  a  business  which  he  was 
carrying  on  for  Alonzo  V.  Lynde,  and  which  he  had  previously  trans- 
ferred to  Lynde  as  security  for  a  debt,  with  the  agreement  that  after 
the  debt  was  paid  the  property  was  to  be  his  with  the  profits  of  the 
business,  Lynde  furnishing  all  the  capital  and  receiving  all  the  profits, 
except  enough  for  the  support  of  the  plaintiff  and  his  family,  until  the 
debt  should  be  paid.  And  it  is  claimed  that  upon  these  facts  the 
plaintiff  had  such  a  legal  and  equitable  interest  in  the  contract  that 
it  must  pass  by  the  bankruptcy  proceedings  to  the  assignees. 

Assignees  in  bankruptcy  do  not,  Uke  heirs  and  executors,  take  the 
whole  legal  title  in  the  bankrupt's  property.  They  take  such  estate 
only  as  the  bankrupt  had  a  beneficial  as  well  as  legal  interest  in,  and 
which  is  to  be  applied  for  the  payment  of  his  debts.     To  a  plea  that 

47 


738  KHOADES   V.    BLACKISTON.  [CHAP.  V. 

the  plaintiff  is  a  bankrupt,  and  that  all  his  estate  vested  in  his  as- 
signees, it  is  a  good  replication  that  the  whole  beneficial  interest  in  the 
contract  or  demand  in  suit  was  vested  by  prior  assignment  in  a  third 
party,  for  whose  benefit  the  suit  is  prosecuted.  If,  however,  the  bank- 
rupt has  any  beneficial  interest  in  the  avails  of  the  suit,  then  the  whole 
legal  title  vests  in  his  assignee,  and  the  action  must  be  in  his  name, 
for  there  cannot  be  two  legal  owners  of  one  contract  at  the  same  time. 
Webster  V.  Scales,  4  Dougl.  7.  Winch  v.  Keeley,  1  T.  R.  619.  Car^ 
penter  v.  Marnell,  3  B.  &  P.  40. 

In  most  of  the  English  cases  in  which  these  rules  have  been  applied, 
there  was  an  assignment  of  a  chose  in  action  by  the  bankrupt  to  a 
third  party,  made  before  the  bankruptcy,  and  they  have  mainly  turned 
on  the  question  whether  the  transfer  was  absolute  or  only  as  security 
for  debt,  and  if  as  security  only,  then  further,  on  the  question  wnether 
the  security  was  of  greater  value  than  the  debt  secured,  at  the  time  of 
the  bankruptcy.  The  case  of  D'Arnay  v.  Chesneau,  13  M.  &  W.  796, 
809,  relied  on  at  the  argument,  was  of  this  description,  and  Baron 
Parke  there  declared  "  that  if  the  debt  to  be  secured  was  less  than  the 
debt  assigned,  and  there  was  nothing  more  than  a  simple  assignment 
of  the  debt  as  a  security,  the  right  of  action  would  vest  in  the  insol- 
vent's assignees.  In  such  a  case  they  would  have  an  immediate  inter- 
est in  the  sum  to  be  recovered,  from  which  benefit  to  the  creditors 
might  result,  and  they  would  not  have  been  bound  to  refund  all  they 
had  recovered  to  the  equitable  assignee  of  the  debt  (their  cestui  que 
trust),  which  is  the  proper  criterion."  Dangerfield  v.  Thomas,  9  Ad. 
&  El.  292. 

The  court  are  of  opinion  that  the  rule  in  these  cases,  if  ever  appli- 
cable to  a  case  where  an  agent  sues  upon  a  contract  made  in  the  course 
of  his  agency,  where  the  suit  is  subject  to  the  control  of  the  principal, 
cannot  be  applied  to  defeat  the  plaintiff's  action  here.  The  pledged 
property  consisted  of  a  business  to  be  carried  on  with  the  capital  of 
the  party  to  whom  it  was  transferred.  The  contracts  made  in  the 
course  of  it  were  the  contracts  of  the  principal.  The  agent  had  no 
immediate  beneficial  interest  in  them.  His  interest  was  only  in  the 
future  profits,  and  that  contingent  on  their  being  sufficient  to  pay  the 
debt  he  owed.  The  contract  of  Lynde  to  restore  the  property  to  the 
plaintiflf"  was  executory,  and  there  was  no  claim  that  the  contingency 
had  happened  upon  which  the  business  and  property  were  to  become 
the  plaintiff's.  The  inference  from  the  facts  reported  is,  that  it  did 
not.  The  support  which  he  was  to  have  for  himself  and  his  family  was 
plainly  in  compensation  for  his  agency  in  the  business.  And  there  is 
nothing  to  show  that  the  creditors  in  bankruptcy  have  any  valuable 
interest  in  the  contract  declared  on.  Parnham  v.  Hurst,  8  M.  &  W. 
743.  Ontario  Bank  v.  Mumford,  2  Barb.  Ch.  596.  3  Parsons  on 
Contracts,  479.  Case  to  stand/or  trial. 


SECT,  v.]  BLISS    V.    SNEATH.  739 


BLISS  V.  SNEATH. 
Supreme  Court  of  California.     1894. 

[103  Cnl.  43.] 

Appeal  from  a  judgment  of  the  Superior  Court  of  San  Mateo 
County. 

Tlie  facts  are  stated  in  the  opinion. 

G.  W.  McEnerneij  and  Stanly,  Hayes  &  Bradley,  for  appellant. 

B.  Waters^  for  respondent. 

Temple,  C.  This  is  an  appeal  from  a  judgment  for  plaintiff  upon 
the  pleadings. 

The  action  is  for  rent  alleged  to  be  due  upon  an  indenture  of  lease. 
It  is  contended  that  the  complaint  does  not  sufficiently  aver  demand 
and  nonpayment.  The  allegation  is:  "That  the  plaintiff  has  de- 
manded the  payment  of  said  sum,  l)ut  to  pay  the  same,  or  an}'  part 
thereof,  the  defendant  refused,  and  still  refuses."  A  general  demurrer 
was  interposed,  which  apparently  was  never  passed  upon,  but  was 
waived  b}'  answering.  The  objection  not  having  been  taken  b}'  special 
demurrer,  the  pleading  must  now  be  held  sufficient.  Grant  v.  Sheerin, 
84  Cal.  197. 

The  defendant  answered,  admitting  the  demand  of  plaintiff,  but 
setting  up,  as  a  partial  defence,  a  claim  against  the  plaintiff's  wife. 
The  answer  avers  that,  in  all  the  transactions  set  forth  in  the  com- 
plaint, plaintiff  acted  solely  and  wholly  as  the  agent  of  Martha  S.  Bliss, 
his  wife  ;  that  the  present  action  is  prosecuted  bj-  him  as  agent  of  said 
Martha  S.  Bliss,  and  for  her  sole  and  exclusive  use,  benefit,  and  be- 
half The  answer  then  proceeds  to  aver  a  demand  against  said  Martha 
S.  Bliss,  which  existed  at  the  time  the  action  was  commenced,  and 
asks  that  such  demand  be  set  off  against  and  deducted  from  the  claim 
of  plaintiff,  and  admits  plaintiff's  right  to  take  judgment  for  the  excess 
of  plaintiff^s  demand  over  and  above  his  claim  against  Martha  S.  Bliss. 
On  motion,  plaintiff  obtained  judgment  for  the  full  amount  of  his  de- 
mand without  trial. 

The  sufficiency  of  the  allegations  in  the  answer  must  be  tested  by 
the  same  rule  applied  to  the  complaint.  If  the  allegations  in  the  an- 
swer would  be  sufficient  in  a  complaint  to  sustain  a  judgment,  they  are 
sufficient  here.  Judged  by  this  rule,  the  allegation  is  sufficient  to 
show  that  plaintiff  is  suing  merely  as  the  agent  of  his  wife.  The  de- 
fence is  not  reall}'  a  counterclaim.  That  is  a  demand  which  may  be 
the  basis  of  a  judgment  against  the  plaintiff. 

Here  the  matter  pleaded  is  purely  defensive  to  the  demand  sued  on. 

"  '  Where  the  agent  sues  in  his  own  name,'  says  Mr.  P^vans  (Evans, 
Ag.  387),  '  the  defendant  ma}'  avail  himself  of  all  defences  which  would 
be  good  at  law  and  in  equity  :   (a)  as  against  the  agent,  who  is  the 


740  BLISS   V.   SNEATH.  [CHAP.   V. 

plaintiff  on  the  record,  or  (b)  as  against  the  principal,  for  whose  use 
the  action  is  brought.'"     Mechem,  Ag.  §  7G2. 

It  is  said,  however,  that,  even  admitting  this  principle,  it  cannot 
apply  here,  because  the  defence  set  up  is  a  debt  created  or  arising 
from  a  statutory  liabilit}-,  and  is  not,  therefore,  a  cause  of  action  aris- 
ing upon  a  contract.^  .  .  . 

I  think  the  judgment  should  be  reversed,  and  a  new  trial  had. 

Haynes,  C,  and  Searls,  C,  concurred. 

For  the  reasons  given  in  the  foregoing  opinion,  the  judgment  is  re- 
versed, and  a  new  trial  ordered. 

McFarland,  J.,  Fitzgerald,  J. 

De  Haven,  J.,  concurring.  I  concur  in  the  judgment.  Assuming 
the  matters  alleged  in  the  answer  to  be  true,  it  was  error  to  give  a 
judgment  in  favor  of  plaintiff  for  the  full  amount  demanded  in  the 
complaint. 

A  Passages  dealing  with  this  contention  are  omitted.  —  Ed. 


SECT   I.]  CHILD   V.   MORLEY.  741 


CHAPTER  VI. 
THE  PRINCIPAL'S   DUTIES  TO  THE  AGENT-* 


SECTION   I. 

Reimhursement  or  Indemnity. 

CHILD   V.   MORLEY. 

King's  Bench.     1800. 

[8  T.  R.  610.] 

Assumpsit  for  money  paid,  laid  out,  and  expended  for  the  use  of  tlns 
defendant ;  upon  an  account  stated ;  for  worli  and  labor  as  a  broker 
for  the  defendant,  and  on  a  quantum  meruit;  to  which  the  defendant 
pleaded  the  general  issue.  At  the  trial  before  Lord  Kenyon  at  Guild- 
hall, the  case  appeared  to  be  this :  — 

Morley,  being  possessed  of  £10,000  three  per  cent  consolidated 
stock,  applied  to  Child,  a  stock-broker,  to  sell  it  for  him  for  the  next 
opening,  the  stock  being  then  shut.  The  defendant's  direction  to  the 
plaintiff  was  to  sell  at  60  if  he  could;  if  not,  for  59  and  a  fraction. 
Child  accordingly  bargained  with  two  persons,  Rutt  and  Shepherd,  for 
the  sale  of  this  stock  at  59  and  a  fraction  for  the  next  opening,  not 
disclosing  to  them  at  the  time  the  name  of  his  principal.  In  the  mean 
time  and  before  the  transfer  da}-  the  stock  rose  to  62.  The  defendant 
being  afterwards  called  upon  to  make  good  his  engagement  to  the  pur- 
chasers refused  so  to  do,  alleging  that  the  plaintiff  had  exceeded  his 
authority  in  selling  at  too  low  a  price.  Whereupon  the  plaintiff,  con- 
sidering himself  bound  as  the  broker  who  had  contracted  with  Rutt  and 
Shepherd  for  the  sale  of  the  stock  to  make  good  his  engagements  to 

^  The  principal's  duty  to  remunerate  the  agent  is  treated  in  works  on  Con- 
tracts and  Quasi-Contracts.  See  also  Osborn  v.  The  Governors  of  Guy's  Hospital, 
2  Str.  728  (1725);  Taylor  v.  Brewer,  1  M.  &  S.  290  (1813);  Davies  v.  Davies,  9  C.  & 
P.  87  (1839);  Bryant  v.  Flight,  5  M.  &  W.  114  (1839) ;  Baxter  i'.  Gray,  3  M.  &  G. 
771  (1842),  s.c.  4"Scott,  N.  R.  374;  Oxford  v.  McFarland,  3  lud.  1.56  (is'si)  ;  Cook  v. 
Fiske,  12  Gray,  491  (1859);  Lockwood  v.  Levick,  8  C.  B.  x.  s.  603  (1860);  Hill  v. 
Williams,  6  Jones'  Eq.  242,  248-249  (1861);  Morris  v.  Barnes,  35  Mo.  412  (1865); 
Scully  V.  Scully,  28  Iowa,  548  (1870)  ;  Bixby  v.  Moor,  51  N.  H.  402  (1871),  s.c.  Wam- 
baugh's  Cases  for  Analy.sis,  160;  Parker  v.  Walker,  86  Tenn.  566  (1888)  ;  Gilchrist  v. 
Clarke,  86  Tenn.  583  (1888);  Holden  i-.  Starks,  159  Mass.  503  (1893).  — Ed. 


742  CHILD   V.   MORLEY.  [CHAP.  VI. 

them,  paid  them  the  difference  of  the  price  of  the  stock  when  bargained 
for,  and  when  it  ought  to  have  been  transferred,  amounting  to  £576 
8s.,  and  brought  this  action  against  Morley  to  recover  that  sum,  and 
a  further  sum  of  £12  \Qs.  for  his  commission  as  broker  on  tlie  sale 
of  the  stock.  And  the  jur3',  under  Lord  Kenyon's  direction,  found 
their  verdict  for  the  amount  of  tlie  two  respective  sums,  discriminating 
at  the  time  between  them. 

A  rule  was  obtained  b}-  law  in  the  last  term,  calling  on  the  plain- 
tiff to  show  cause  why  the  verdict  should  not  be  set  aside  on  several 
grounds.  1st,  Because  the  transaction  for  the  sale  of  the  stock,  as 
between  the  plaintiff  and  Rutt  and  Shepherd,  was  illegal  and  void 
within  the  statute  7  Geo.  2,  c.  8,  against  stock-jobbing;  and  the  pur- 
chasers could  not  have  enforced  the  contract  against  the  plaintiff,  there 
being  no  stock  in  his  name  to  be  transferred.  2dl3,  Because  no  per- 
son can  make  another  his  debtor  by  a  voluntary  payment  of  the  other's 
debt  due  to  a  third  person  ;  more  especiall}'  in  this  case,  when  b}'  the 
defendant's  refusal  to  pay  the  money  to  the  purchasers  of  the  stock 
there  was  a  direct  notice  to  the  plaintiff  not  to  pay  it.  3dly,  Because, 
considering  the  relation  in  which  these  parties  stood  to  each  other, 
that  of  principal  and  agent,  the  plaintiff  as  agent  had  no  right  to  pay 
monej'  for  his  principal  against  his  consent,  in  order  to  found  an  action 
against  him,  even  admitting  that  the  principal  was  bound  to  pay  it  to 
third  parties ;  for  the  agent  in  these  transactions  is  the  onlj-  witness 
for  his  principal,  and  the  latter  thereby  loses  the  benefit  of  his  testi- 
mony. 4thly,  Because  at  any  rate  this  form  of  action  was  miscon- 
ceived ;  if  the  plaintiff  had  been  damnified  b}-  the  defendant's  neglect- 
ing to  transfer  the  stock,  he  should  have  brought  an  action  on  the  case 
for  the  special  damage. 

Erskine^  Garrow,  and  Henderson  now  showed  cause  against  the 
rule. 

Lord  Kenton,  C.  J.  There  is  no  pretence  to  sa}'  that  this  is  a  stock- 
jobbing transaction  within  the  statute.  The  parties  intended  a  bona 
fide  sale  of  stock,  of  which  Morle}',  on  whose  account  it  was  sold,  was 
then  actually  possessed  ;  and  the  question  is  whether  this  may  not  be 
done  through  the  intervention  of  a  broker  though  he  does  not  disclose 
his  principal  at  the  time  ;  of  which  no  doubt  can  be  made.  Nothing 
can  be  more  unjust  than  the  defence  which  has  been  set  up  to  the 
whole  of  this  demand  ;  and  that  consideration  may  at  first  view  of  the 
case  have  tended  to  warp  my  judgment.  But  I  cannot  perceive  what 
benefit  the  defendant  can  propose  to  himself  by  such  conduct ;  for  the 
court  have  no  doubt  but  that  at  all  events  the  verdict  must  stand  for  the 
£12  10s.,  the  amount  of  the  plaintiffs  commission  as  broker,  under 
the  count  for  work  and  labor.  And  I  think  that  some  method  or  other 
will  be  found  for  making  the  defendant  pay  the  amount  of  the  differ- 
ence which  the  plaintiff  has  honorably  settled  on  account  of  his  prin- 
cipal's not  making  good  his  engagement.  But  as  to  that  part  of  the 
demand,  there  is  a  diflBculty  in  the  form  of  action ;  and  perhaps  ie 


SECT.  I.]  CHILD   V.    MORLEY.  743 

would  have  been  better  framed  ex  delicto  than  ex  coyitractu.  I  admit 
that  no  man  can  h\  a  voluntarj^  payment  of  the  debt  of  another  make 
himself  that  man's  creditor,  and  recover  from  him  the  amount  of  the 
debt  so  paid  ;  but  what  pressed  on  mj'  mind  was  that  the  plaintiff  was 
under  some  sort  of  compulsion  to  pa}'  the  differences.  We  know  that 
it  is  the  common  practice  on  the  Stock  Exchange  for  the  broker  who  is 
employed  to  sell  stock  not  to  disclose  the  name  of  his  principal  at  the 
time  of  making  the  bargain  ;  and  the  buyer  deals  with  him  upon  the 
confidence  of  his  character.  Therefore  I  considered  tliat  his  character 
was  at  stake  in  making  good  the  engagement  he  had  entered  into  on 
behalf  of  his  principal ;  and  having  been  placed  in  that  situation  of 
responsibilit}-  by  the  act  and  procurement  of  the  defendant,  I  con- 
sidered that  his  i)aying  the  differences  under  sucii  circumstances  was 
not  altogether  a  voluntar}-  act.  but  done  under  the  pressure  of  a  situa- 
tion in  which  he  was  involved  b}'  the  defendant's  breach  of  faith.  I 
remember  a  case  in  Rolle's  Abridgment  where  a  party  met  to  dine  at  a 
tavern,  and  after  dinner  all  but  one  of  them  went  awa}'  without  paying 
their  quota  of  the  reckoning,  and  that  one  paid  for  all  the  rest ;  and  it 
was  holden  that  he  might  recover  from  the  others  their  aliquot  propor- 
tions. If  the  plaintiff  here  had  been  bound  as  guarantee  for  the 
defendant  to  the  purchasers  of  the  stock,  there  could  have  been  no 
doubt  but  that  he  might  have  recovered  his  whole  demand  in  this 
action.  However,  upon  the  whole,  considering  the  difficulties  of  the 
case  in  its  present  shape  as  to  the  sum  recovered  for  the  differences,  I 
think  it  would  be  better  to  frame  another  action  for  this  part  of  the 
demand  better  adapted  to  the  nature  of  the  case. 

Laavrence,  J.  My  difficulty  is  this  :  if  Child  contracted  to  sell  the 
stock  on  his  own  account,  then  the  case  falls  directh'  within  the  prohi- 
bition of  the  Act  of  Parliament,  because  he  really  was  not  possessed  of 
the  stock  so  bargained  to  be  sold.  But  if  he  acted  as  broker  or  agent 
for  Morley,  which  he  legally  might,  and  his  contract  would  then  be 
valid  within  the  statute,  he  ought  in  that  case  to  have  permitted  Morlej' 
to  settle  or  not  with  the  purchasers  as  he  pleased  ;  and  the  plaintiff 
should  not  have  taken  upon  himself  to  pa}'  the  mone}'  without  the  con- 
sent of  his  principal,  more  especially  after  that  principal  had  refused 
to  pay  it.  In  this  general  view  of  the  case  the  payment  by  the  plaintiff 
would  be  at  his  own  peril,  and  he  could  not  recover  in  this  action  as 
for  money  paid  to  the  use  of  the  defendant.  The  onl}-  ground  on 
which  (as  it  seems  to  me)  the  verdict  in  this  case  could  have  been  sup- 
ported for  the  whole  demand  was  b}'  considering  the  plaintiff  as  stand- 
ing in  the  situation  of  a  guarantee  for  the  sale  of  the  stock  to  the 
purchasers.  Taking  the  transaction  as  now  disclosed  to  be  legal  within 
the  statute,  there  could  be  no  objection  to  the  plaintifTs  becoming  the 
guarantee  of  such  a  legal  contract ;  and  then  if  he  had  paid  the  money 
on  the  default  of  the  defendant,  he  would  have  stood  in  the  common 
situation  of  a  suret}'  paying  mone}'  for  his  principal ;  and  it  might 
have  been  a  question  whetlier,  if  by  the  general  usage  of  the  Stock 


744  HUKST   V.    HOLDING.  [CHAP.  VI. 

Exchange  brokers  contracting  for  the  sale  of  stock  and  not  disclos- 
ing the  names  of  their  principals  were  considered  as  iniplieilly  i)ledg- 
ing  their  own  credit  for  the  faithful  performance  of  the  contract,  such 
general  usage  might  have  been  deemed  equivalent  to  an  express  guar- 
antee on  the  part  of  the  plantiff,  and  then  the  money  paid  by  him  in 
default  of  his  principal  would  have  been  money  paid  to  the  use  of  the 
defendant.  But  difficulties  occur  in  this  view  as  the  facts  now  stand, 
and  therefore  it  seems  more  proper  that  the  verdict  should  only  be 
entered  up  for  the  amount  of  the  brokerage. 

Per  Curiam,  Ordered  accordingly} 


HURST  V.   HOLDING. 
Common  Pleas.     1810. 

[3  Taunton,  32.] 

This  was  an  action  for  money  lent,  and  upon  an  account  stated. 
Upon  the  trial  of  the  cause  at  the  Guildhall  Sittings  after  Hilary  Term, 
1810,  before  Mansfield,  C.  J.,  the  proof  was,  that  the  defendant,  who 
resided  at  Liverpool,  having  written  to  the  plaintiff  on  the  7th  of 
February  to  purchase  him  33  bags  of  damaged  Surat  cottons  at  2Sd. 
per  lb.,  to  be  paid  for  in  one  month,  with  the  usual  East  India  Com- 
pany's allowance  ;  the  plaintiff,  on  the  9th,  bought  cottons  for  less  than 
the  price  named,  to  be  paid  for  in  one  month;  and  at  the  time  of  the 
sale  paid  £87  12s.  for  custom-house  duties,  and  £61  more,  as  the 
allowance  to  the  East  India  Company,  and  on  the  11th  sent  the  cot- 
tons to  the  Axe  Inn  in  Aldermanbury,  to  be  forwarded  by  the  Pad- 
dington  Canal  to  Liverpool,  but  with  instructions  to  deliver  them  to 
tlie  plaintiff's  order.  They  were  forwarded  on  the  18th  from  the  Axe. 
Whitle}',  who  had  sold  the  cottons,  afterwards  hearing  rumors  disad- 
vantageous to  the  credit  of  the  defendant,  applied  to  the  plaintiff  to 
stop  the  cottons,  who,  in  consequence,  on  the  27th,  gave  directions  at 
the  Axe  Inn  that  the  cottons  should  not  be  delivered  to  the  defendant 
otherwise  than  upon  payment  of  the  price.  The  person  who  received 
this  order  wrote  to  his  agent  in  Liverpool  accordingly  on  the  same  day, 
and  the  goods  did  not  arrive  in  Liverpool  till  the  10th  of  March,  when 
the  month's  credit  was  expired.  The  carriers  at  Liverpool,  by  the 
plaintiff's  direction,  upon  the  day  after  their  arrival,  tendered  the  cot- 
tons to  the  defendant,  upon  payment  of  the  money,  but  he  refused  to 
accept  them  or  pay  for  them  :  upon  which  the  plaintiff,  who  had  in  the 
mean  time,  on  the  llth  of  March,  paid  Whitlej-  £407  12s.  4d.  for  the 
price  of  the  cottons,  bj'  the  same  agent  sold  them  on  the  19th  of  Ma}' 
by  auction  at  Liverpool,  for  the  account  of  the  defendant.     It  was  in 

1  See  Taylor  v.  Stray,  2  C.  B.  n.  s.  175  (Ex.  Ch.,  1857).  — Ed. 


6ECT.  I.]  HUKST   V.    HOLDING.  745 

evidence,  that  the  plaintiff  was  in  the  practice  of  buying  cottons,  as 
broker,  for  the  defendant ;  and  it  was  alleged  that  his  usual  course  of 
dealing  was  to  send  them  to  the  Axe  in  Aldermanbur}-,  to  be  for- 
warded  to  Liverpool  to  be  delivered  to  his  own  order.  This  action  was 
brought  to  recover  the  price  of  the  cottons,  which  the  plaintiff  had  paid 
to  Wliitley  ;  the  duties  he  had  paid  at  the  custom-house  ;  the  allow- 
ances he  had  paid  to  the  East  India  Company  ;  and  his  own  commis- 
sion for  purchasing  them.  Mansfield,  C.  J.,  thought  he  was  not 
entitled  to  recover  either ;  and  the  jury,  under  his  direction,  found  a 
verdict  for  the  defendant,  with  liberty  to  move  to  enter  a  verdict  for 
the  plaintiff  for  £87  12.s'.,  the  amount  of  the  duties  paid  at  the  custom- 
house, if  the  court  should  be  of  opinion  that  he  was  entitled  to  recover 
that  sum. 

Vuug/ian^  Serjt.,  in  Easter  Term,  moved,  as  well  upon  the  point 
reserved  as  upon  the  ground  that  the  plaintiff  was  entitled  to  recover 
the  commission,  which  he  iiad  earned  by  making  the  purchase,  at  a 
time  anterior  to  any  misconduct  in  himself,  and  which  he  could  not 
forfeit  by  what  happened  afterwards. 

Shepherd  and  Best,  Serjts.,  on  this  da}',  showed  cause  against  the 
rule  on  both  grounds  :  the  goods  being  bought  at  a  month's  credit,  the 
purchaser  is  entitled  to  insist  upon  their  being  delivered  in  the  ordi- 
nary course  of  trade  ;  but  contrary  thereto,  the  goods  are  detained  by 
the  plaintiffs  procurement  until  the  month  is  expired,  and  are  directed 
to  be  then  delivered  only  upon  payment  of  the  price.  The  broker  is 
not  entitled  to  his  commission  unless  he  does  his  dut}-,  which  he  vio- 
lates by  stopping  the  goods  from  coming  to  his  employer's  hands.  If 
Whitley,  of  himself,  without  the  aid  of  the  plaintiff,  had  stopped  the 
cottons,  the  plaintiff  might  have  recovered ;  but,  under  the  present  cir- 
cumstances, if  he  were  agent  for  both  parties,  yet  if  he  forwarded  the 
interests  of  the  one  b}-  sacrificing  those  of  the  other,  he  is  not  entitled 
to  recover  commission  against  the  latter.  The  same  reason  prevents 
his  recovering  the  duty,  for  if  he  were  entitled  to  recover  it  against 
the  defendant,  he  would  receive  it  twice  over ;  for  he  is  already  repaid 
the  duties,  inasmuch  as  he  has  sold  the  goods,  increased  in  value  by  the 
amount  of  the  duties  paid,  and  has  received  the  price,  and  therein 
the  amount  of  the  duties,  from  the  last  purchaser.  Even  if  the  de- 
fendant, and  not  the  plaintiff,  had  prevented  the  bargain  being  com- 
pleted, the  plaintiff  could  not  have  recovered  commission,  which  is  not 
due  till  the  completion  of  the  contract ;  though  he  might  have  main- 
tained an  action  against  the  defendant  for  preventing  him,  as  broker, 
from  completing  a  purchase  upon  which  he  would  have  been  entitled  to 
commission. 

Vaiighan  in  support  of  his  rule.  The  plaintiff  pays  the  sums  of  £87 
125.  for  the  duties,  and  £61  for  allowances  to  the  East  India  Company, 
on  the  10th  of  February,  upon  the  taking  the  goods  from  the  India 
house,  in  the  due  discharge  of  his  duty,  in  pursuance  of  the  instruc- 
tions given  him  on  the  7th.     lie  was  bound  to  pay  these  sums ;  for  he 


746  HUUST    V.    HOLDING.  [CUAP.  VI. 

could  not  otherwise  get  the  cottons  out  of  the  warehouse.  He  was  on 
that  day  therefore  entitled  to  be  repaid  these  sums  ;  it  was  a  vested 
right.  On  the  lltli  he  delivered  the  goods  at  the  Axe,  whicli  was  a 
delivery  to  the  defendant,  whence  the}'  are  forwarded  on  the  18tli ;  and 
although  on  the  27th  the  plaintiff  gives  directions  at  the  Axe  that  the 
goods  shall  not  be  forwarded,  yet  the}'  were  then  out  of  the  power 
of  tlie  carriers  there,  and  tlie  order  was  inoperative.  No  action  could 
be  maintained  against  the  plaintiff  for  misconduct ;  but  if  any  could, 
yet  that  would  not  vacate  his  right  to  recover  these  debts  already 
incurred  ;  and  as  it  is  not  the  course  of  trade  for  brokers  to  charge 
interest  on  the  sums  they  advance,  his  only  compensation  for  these 
advances  is  in  the  shape  of  the  commission,  which  is  therefore  due.  It 
was  not  in  proof  that  the  goods  were  stopped  in  consequence  of  the 
imprudent  order  given  on  the  27th,  and  fraud  is  not  to  be  inferred. 

Mansfield,  C.  J.  I  do  not  know  that  the  plaintiff  is  entitled  even 
to  the  duties,  though  it  may  be  a  very  hard  case.  For  what  is  the 
case  ?  The  plaintiff  buys  cottons  according  to  his  instructions,  and 
sends  them,  and  by  some  accident  the}'  do  not  set  out  till  the  18th. 
It  is  in  evidence  that  the}  were  stopped  on  the  canal,  the  plaintiff  says, 
by  the  seller ;  but  if  so,  the  seller  could  have  known  where  to  stop 
them  only  by  communication  with  the  plaintiff;  when  they  arrive  and 
are  offered  to  the  defendant  lie  will  not  take  them,  the  price  had  then 
fallen.  The  plaintiff  writes  on  the  27th,  the  price  of  the  goods  not 
then  being  payable,  to  stop  them,  unless  upon  payment  of  the  money. 
I  have  no  note  of  any  evidence  that  the  plaintiff  had  previously  sent  to 
Liverpool  other  goods  directed  to  his  own  order.  On  the  11th  the  plain- 
tiff pays  voluntarily  for  the  goods,  not  in  consequence  of  any  direction 
from  the  defendant.  So  long  after  as  the  19th  of  May,  the  plaintiff 
himself  takes  the  goods  and  sells  them.  If  he  did  it  out  of  honor  to 
save  the  defendant's  credit,  the  utmost  he  could  do  would  be,  on  pay- 
ing Whitley,  to  be  permitted  to  sue  the  defendant  in  Whitley's  name 
for  the  price  of  the  goods.  Instead  of  that  he  pays  the  money,  and 
endeavors,  in  a  short  way,  to  recover  for  money  paid.  Having  himself 
taken  possession  of  the  goods,  what  right  has  he  to  charge  the  commis- 
sion ?  As  for  the  duties,  he  is  paid  them  in  the  increased  price  of 
goods  which  he  receives. 

Heath,  J.  The  difficulties  under  which  the  plaintiff  labors,  he  has 
brought  on  himself  by  deserting  his  duty  as  a  broker. 

Lawrence,  J.  It  was  admitted  by  the  plaintiff's  counsel,  that  if, 
through  the  misconduct  of  the  plaintiff,  the  defendant  does  not  get  the 
goods,  the  defendant  is  not  bound  to  pay  for  them.  Now,  as  far  as 
the  evidence  goes,  it  appears  that  the  goods  arrived  on  the  10th  of 
March  ;  that  on  the  11th  the  plaintiff  took  to  the  goods,  and  afterwards 
sold  them.  There  is,  therefore,  every  reason  to  believe  that  the  non- 
delivery was  occasioned  by  the  act  of  the  broker  himself. 

Chambre,  J.  Certainly  there  was  no  delay  in  making  the  purchase  ; 
but  the  delivery  at  the  Axe  is  not  a  delivery  to  the  defendant ;  because 


SECT.  I.]  D'ARCY   V.   LYLE.  747 

the  plaintiff  sends  them  to  be  delivered  to  his  own  order,  and  before 
their  arrival  at  Liverpool  he  sends  orders  that  they  shall  not  be  delivered 
to  the  defendant  till  the  tinje  of  credit  is  up  :  having  then  taken  the 
goods,  how  can  he  possibly*  recover  either  for  commission  or  for  the 
money  paid  in  his  own  wrong  for  the  goods  ? 

Mule  discJiarged} 


D'ARCY  V.  LYLE. 
Supreme  Court  of  Pennsylvania.     1813. 

[5  Binn.  441.] 

This  was  an  action  of  indebitatus  assumpsit,  in  which  the  plaintiff 
declared  for  money  paid,  laid  out,  and  expended,  money  lent  and 
advanced,  money  had  and  received,  and  work,  labor,  and  services. 
It  was  tried  before  Yeates,  J.,  at  a  N'isi  JPrius  in  December  last, 
when  a  verdict  was  found  for  the  plaintiff,  damages  §3,500  ;  and  upon 
a  motion  by  the  defendant  for  a  new  trial,  his  Honor  reported  the  facts 
to  be  as  follows  :  — 

On  the  4th  of  August,  1804,  the  plaintiff,  who  was  then  about  to 
proceed  to  Cape  Fran9ais  upon  commercial  business,  received  from  the 
defendant  a  power  of  attorney  to  demand  from  Suckley  &  Co.  at  the 
Cape,  who  had  been  the  defendant's  agents,  all  his  goods  remaining 
unsold  in  their  hands,  and  to  settle  by  compromise  or  in  any  manner 
the  plaintiff  thought  most  beneficial,  all  accounts  of  the  defendant  with 
that  house.  On  the  voyage,  the  plaintiff,  in  consequence  of  being 
chased  by  a  French  privateer,  threw  overboard,  among  other  papers, 
the  power  of  attorney.  He  stated  this  fact  to  Sucklev  &  Co.  upon  his 
arrival,  who  consented  to  deliver  up  the  goods,  upon  his  promising  to 
pay  a  balance  which  they  alleged  to  be  due  from  the  defendant ;  and 
this  being  assented  to  by  the  plaintiff,  they  proceeded  to  deliver  the 
goods.  Before  the  deliver}-  was  complete,  one  Thomas  Richard.son 
attached  them  with  other  goods  of  Suckley  &.  Co.,  to  secure  a  debt  due 
by  them  to  the  house  of  Knipping  &  Steinmetz  of  Charleston,  for 
whom  he  was  agent.  The  plaintiff  interposed  a  claim  on  behalf  of  the 
defendant ;  and  on  the  26th  of  November,  1804,  the  Chamber  of  Jus- 
tice decreed  that  he  should  retain  possession  of  the  merchandise,  on 
his  entering  into  a  recognizance  in  the  sum  of  82,089,  conditioned  to 
produce  within  four  months  an  authentic  letter  of  attorney  from  the 
defendant,  or  on  default  to  pay  Richardson  as  the  agent  of  the  Charles- 
ton house,  the  said  amount,  whicli  was  the  invoice  value  of  the  mer- 
chandise.    The  recognizance  was  given  on  the  30th  of  November ;  and 

»  See  Capp  v.  Topham,  6  East,  392  (1805).  — Ed. 


748  d'arcy  v.  lyle.  [chap,  vl 

on  the  6th  of  December  following  the  plaintiff  personally  appeared  in 
the  clerk's  office  of  the  Civil  Tribunal  where  it  was  entered,  and  caused 
an  act  to  be  made,  setting  forth  that  his  recognizance  or  submission  in 
November  should  be  null,  as  he  had  received  the  power  of  attorney, 
and  notified  it  to  Richardson,  In  November,  1805,  the  plaintiff,  having 
sold  the  goods,  forwarded  an  account  current  to  the  defendant,  making 
the  net  balance  $2,509.60.  On  the  1st  of  December,  1805,  he  by  letter 
directed  the  defendant  to  pay  over  to  a  friend  all  his  funds,  after 
deducting  the  balance  due  to  himself;  and  on  the  19th  of  April,  1806, 
having  had  some  misunderstanding  with  the  defendant,  he  wrote  his 
final  letter,  closing  his  correspondence,  and  declining  an}'  further  con- 
cern with  him.  Up  to  this  time  Dessalines  was  Emperor,  and  favored 
the  plaintiff. 

In  March,  1808,  the  powers  of  government  at  the  Cape  being  in 
Christophe,  who  was  the  friend  of  Richardson,  and  the  plaintiff  con- 
tinuing to  reside  as  a  merchant  at  the  Cape,  Richardson  instituted  a 
suit  against  the  plaintiff  in  the  Tribunal  of  Commerce,  to  recover  from 
him  the  value  of  the  goods,  which  by  the  decision  of  the  Chamber  of 
Justice  had  been  decreed  to  him  as  the  defendant's  agent  in  1804. 
The  amount  of  the  claim  was  $3,000,  which  by  a  memorial  presented  by 
the  plaintiff  to  the  tribunal  (no  part  of  the  record  of  this  court  being 
produced)  appeared  to  be  founded  on  an  alleged  promise  of  the  plain- 
tiff to  pay  so  much  for  Suckley ;  but  in  the  memorial  the  plaintiff 
denied  the  promise,  asserted  that  this  was  no  other  than  the  transac- 
tion about  the  security  to  produce  a  power  of  attorney,  that  he  was  no 
longer  an  agent  for  Lyle,  and  had  settled  the  matter  with  him,  and 
that  Richardson  was  endeavoring  to  make  them  change  the  just  and 
wise  decision  made  more  than  three  years  before.  On  the  14th  of 
May  the  Tribunal  of  Commerce  gave  judgment  for  D'Arcy.  Richard- 
son appealed  to  the  Civil  Tribunal  of  the  first  district  of  the  Province 
of  the  North,  sitting  at  the  Cape.  That  court  on  the  1st  of  June  con- 
firmed the  sentence  of  the  lower  court.  Richardson  had  previously 
applied  to  the  President,  Christophe,  who  interfered  in  tile  proceed- 
ings, and  on  the  31st  of  May  sent  an  order  for  the  imprisonment  of 
D'Arcy's  lawyer,  who  was  tied  and  sent  to  the  fort.  To  this  another 
order  succeeded,  that  D'Arcy  and  Richardson  should  fight  each  other, 
and  that  the  issue  of  the  combat  should  be  fatal  to  one  or  the  other. 
A  friend  of  D'Arcy  waited  upon  Christophe,  remonstrated  against  the 
order,  and  procured  the  commander  of  a  British  vessel  of  war,  then  in 
the  harbor,  to  do  the  same  ;  but  the  President  insisted  upon  the  com- 
bat, unless  D'Arcy  would  pay  to  Richardson  the  sum  claimed  as  the 
value  of  the  goods.  D'Arcy  having  determined  not  to  pay  the  money, 
the  parties  met,  but  neither  of  them  was  injured.  On  the  same  day 
another  order  came  from  Christophe,  that  D'Arcy  and  Ptichardson 
should  again  fight  at  six  o'clock  on  the  following  morning,  and  that 
he,  Christophe,  would  be  there  himself  to  see  the  affair  settled.  The 
friends  of  D'Arcy,  deeming  it  dangerous  for  him  to  remain  longer  at 


SECT.  I.]  D'ARCY   V.    LYLE.  749 

the  Cape,  prevailed  upon  him  to  attempt  his  escape  ;  but  he  was  inter- 
cepted by  the  President's  order.  The  same  friends  then  advised  him 
to  pay  the  money,  and  preserve  liis  own  life,  that  of  his  lawyer  and 
the  judges,  all  of  whom  were  in  danger  from  the  parts  they  had  taken. 
The  plaintiff  still  refused.  About  dusk  of  the  same  evening  Christophe 
sent  for  D'Arcy,  and  had  a  conversation  with  him,  the  purport  of 
which  was  not  in  evidence  ;  but  on  the  next  da3',  after  the  judgment  of 
the  lower  court  had  been  confirmed,  D'Arcy  in  open  court  retracted  his 
defence,  consented  that  both  judgments  should  be  reversed,  that  his 
memorial  should  be  burnt  by  the  public  agent,  and  that  he  should  be 
condemned  to  pay  Richardson  the  $3,000  he  claimed,  and  the  costs. 
He  retracted  liLs  oath  also,  that  he  owed  Richardson  nothing,  because, 
as  the  record  of  the  court  set  forth,  Richardson  had  since  made  him 
remember  some  facts  his  memory  did  not  furnish  him  when  he  took 
the  oath.  The  court  accordingly  reversed  the  judgments,  condemned 
D'Arcy  to  pay  Richardson  the  $3,000,  "  for  so  much  he  had  engaged 
to  pay  him  for  Suckle}'  &  Co.,  for  merchandise  which  the  latter  had 
delivered  to  him  as  belonging  to  Mr.  James  Lyle,  whom  the  said 
D'Arcy  represented,  for  which  the  tribunal  do  reserve  to  Mr.  D'Arcy 
his  rights,  that  he  ma}-  prosecute  the  same  if  he  thinks  proper  against 
Lyle  or  Suckley."  On  the  22d  of  June,  D'Arcy  paid  the  $3,000  and 
the  costs. 

Judge  Yeates  charged  the  jur}-,  that  if  they  were  satisfied  the  plain- 
tiff individually  promised  to  pay  Richardson  the  $3,000,  he  could  not 
recover.  But  the  record  showed  that  there  was  a  review  of  the  suit  in 
1804,  respecting  the  goods  of  the  defendant  received  from  Suckley  «fe 
Co.,  as  the  judgment  referred  the  plaintiff  to  the  defendant  for  com- 
pensation. The  plaintiff  was  in  no  fault ;  he  stood  out  until  the  safety 
of  all  concerned  in  the  business  was  endangered.  He  did  not  pay 
volnntaril}-.  The  jury  must  decide  whether  the  loss  arose  from  his 
private  engagement,  or  from  his  having  received  the  goods  as  agent  of 
the  defendant.  If  they  were  satisfied  that  the  mone}'  was  extorted 
from  the  plaintiff  as  the  defendant's  agent,  he  might  recover  under 
the  count  for  money  paid  to  the  defendant's  use.  A  loss  of  money 
incurred  by  the  agent  without  fault,  ought  to  be  compensated  b}'  the 
principal. 

Tlie  motion  for  a  new  trial  was  argued  at  December  term  last. 

Tod  and  Rmde  for  the  defendant. 

Hare  and  Tilghman,  contra. 

TiLGHMAN,  C.  J.,  after  stating  the  facts,  and  remarking  that,  al- 
though the  records  were  very  imperfect,  he  thought  it  sufficiently  ap- 
peared that  the  proceedings  in  1808,  were  connected  with  those  of 
1804,  cither  as  an  appeal  from  the  judgment  in  1804  or  a  revival  of 
the  suit  in  a  new  form,  proceeded  as  follows :  — 

This  is  one  of  those  extraordinary  cases  arising  out  of  the  extraordi- 
nary situation  into  which  the  world  has  been  thrown  by  the  French 
revolution. 


750  d'akcy  v.  lyle.  [chap.  vi. 

If  the  confession  of  judgment  by  the  i)laintiff  had  been  voluntar}-,  it 
would  have  lain  on  hiin  to  show  that  the  $3,000  were  justly  due  from 
the  defendant  to  Richardson,  or  the  persons  for  whom  he  acted,  or  that 
the}'  had  a  lien  on  the  goods  of  the  defendant  to  that  amount.  But  the 
confession  of  judgment  was  beyond  all  doubt  extorted  from  the  plaintiff 
b}'  duress,  and  he  did  not  yield  to  fears  of  which  a  man  of  reasonable 
firmness  need  be  ashamed.  The  material  fact  on  which  this  case  turns 
is,  whether  the  transactions  between  the  plaintiff  and  Richardson  were 
on  any  private  account  of  the  plaintiff,  or  solely  on  account  of  the 
defendant.  That  was  submitted  to  the  jury,  and  we  must  now  take  for 
granted  that  the  proceedings  at  the  Cape  against  the  plaintiff  were  in 
consequence  of  his  having  received  possession  of  the  defendant's 
goods  from  Suckley  &  Co.  I  take  the  law  to  be  as  laid  down  by 
Heineccius,  TurnbuU's  Heinec.  c.  13,  p.  269,  270,  and  by  Erskine  in 
bis  Institutes,  2  P^rsk.  Inst.  534,  that  damages  incurred  by  the  agent 
in  the  course  of  the  management  of  the  principal's  affairs,  or  in  con- 
sequence of  such  management,  are  to  be  borne  by  the  principal.  It  is 
objected  that  at  the  time  when  judgment  was  rendered  against  the 
plaintiff  he  was  no  longer  an  agent,  having  long  before  made  up  his 
accounts,  and  transmitted  the  balance  to  the  defendant.  But  this 
objection  has  no  weight,  if  the  judgment  was  but  the  consummation  of 
the  proceedings  which  were  commenced  during  the  agency.  As  such  I 
view  them,  and  I  make  no  doubt  but  the}'  were  so  considered  by  the 
jury.  It  is  objected  again,  that  no  man  is  safe  if  he  is  to  be  responsible 
to  an  unknown  amount,  for  any  suras  which  his  agent  may  consent  to 
pay,  in  consequence  of  threats  of  unprincipled  tyrants  in  foreign  coun- 
tries. Extreme  cases  may  be  supposed,  which  it  will  be  time  enough 
to  decide  when  they  occur.  I  beg  it  to  be  understood,  that  I  give  no 
opinion  on  a  case  where  an  agent  should  consent  to  pay  a  sum,  far 
exceeding  the  amount  of  the  property  in  his  hands.  That  is  not  the 
present  case,  for  the  property  of  the  defendant,  in  the  hands  of  the 
plaintiff  in  1804,  was  estimated  at  $3,000.  The  cases  cited  by  the  de- 
fendant show  that  if  the  agent,  on  a  journey  on  business  of  his  princi- 
pal, is  robbed  of  his  own  money,  the  principal  is  not  answerable.  I 
agree  to  it,  because  the  carrying  of  his  own  money  was  not  necessarily 
connected  with  the  business  of  his  principal.  So  if  he  receives  a 
wound,  the  principal  is  not  bound  to  pay  the  expenses  of  his  cure, 
because  it  is  a  personal  risk  which  the  agent  takes  upon  himself.  One 
of  the  defendant's  cases  was,  that  where  the  agent's  horse  was  taken 
lame,  the  principal  was  not  answerable.  That  I  think  would  depend 
upon  the  agreement  of  the  parties.  If  A.  undertakes,  for  a  certain 
sum,  to  carry  a  letter  for  B.  to  a  certain  place,  A.  must  find  his  own 
horse,  and  B.  is  not  answerable  for  any  injury  which  may  befall  the 
horse  in  the  course  of  the  journey.  But  if  B.  is  to  find  the  horse,  he  is 
responsible  for  the  damage.  In  the  case  before  us,  the  plaintiff  has 
suffered  damage  without  his  own  fault,  on  account  of  his  agency,  and 
the  jury  have  indemnified  him  to  an  amount  very  little,  if  at  all,  ex- 


SECT.  I.]  D'ARCY   V.    LYLE.  751 

ceeding  the  property  in  his  hands,  with  interest  and  costs.  I  am  of 
opinion  that  the  verdict  should  not  be  set  aside. 

Yeates,  J.  Several  legal  exceptions  against  the  plaintifT's  recovery 
in  tliis  suit  were  taken  by  the  defendant's  counsel  in  the  course  of  the 
trial,  which  have  been  relinquished  upon  the  argument  on  the  motion 
for  a  new  trial.  It  is  now  contended  that  the  payment  made  by 
D'Arc}'  to  Thomas  Richardson  was  voluntary,  and  unconnected  with 
the  agency  under  Mr.  Lyle,  and  that,  were  it  otherwise,  the  defendant 
as  principal  is  not  responsible  to  the  plaintiff  for  injuries  done  b}'  a 
despot  to  him  as  a  special  agent,  after  the  determination  of  his 
authority. 

The  cause  was  put  to  the  jury  to  decide  whether  the  conduct  of  the 
plaintiff  as  agent  of  tlie  defendant  was  correct,  and  whether  the  pay- 
ment of  the  $3,000  under  the  sentence  of  the  court  of  Hayti  was 
extorted  under  color  of  law  from  him  for  acts  done  by  him  during  his 
agency.  The  jurors  l\y  their  verdict  have  established  the  affirmative 
of  both  questions,  and  I  was  far  from  being  dissatisfied  therewith :  1 
feel  no  disposition  to  disturb  their  decision. 

I  see  no  reason  whatever  for  retracting  the  opinion  I  had  formed  on 
the  trial,  that  where  a  factor  has  acted  faithfully  and  prudently  within 
the  scope  of  his  authority,  he  is  entitled  to  protection  from  his  con- 
stituent, and  compensation  for  compulsory  payments  exacted  against 
him  under  the  form  of  law  for  the  transactions  of  his  agency.  The 
flagitious  conduct  of  Christophe,  President  of  Hayti,  compelled  the  liti- 
gant parties  under  his  savage  power  into  a  trial  by  battle,  in  order  to 
decide  their  civil  rights.  He  influenced  tlie  Civil  Tribunal  of  the  first 
district  of  the  Province  of  the  North,  sitting  at  the  Cape,  "  to  set  aside 
a  former  judgment  rendered  by  the  tribunal  of  commerce,  and  of  their 
own  court,  and  to  condemn  D'Arcy,"  according  to  the  language  of  the 
sentence,  "to  pay  to  Thomas  Richardson  63,000,  for  so  much  he 
had  engaged  to  him  to  pay  for  Suckley  &  Co.  for  merchandise  which 
the  latter  had  delivered  to  him  as  belonging  to  James  Lyle,  whom  the 
said  D'Arcy  represented,  for  which  the  tribunal  do  reserve  to  D'Arc}' 
his  rights,  that  he  may  prosecute  the  same,  if  he  thinks  proper,  against 
the  said  Lyle  or  Suckle}',"  &c. 

The  defendant  appointed  the  plaintiff  his  attornej',  to  settle  and  col- 
kct  a  debt  in  a  barbarous  foreign  country.  The  plaintiff  has  trans- 
anted  that  business  with  fidelity  and  care,  and  remitted  the  proceeds  to 
his  principal.  He  risked  his  life  in  defence  of  the  interests  of  his 
constituent,  under  the  imperious  mandate  of  a  capricious  tyrant,  hold- 
ing the  reins  of  government.  He  has  since  been  compelled,  by  a 
mockery  of  justice,  to  pay  his  own  moneys  for  acts  lawfully  done  in 
the  faithful  discharge  of  his  duties  as  an  agent ;  and  I  have  no  diffi- 
culty in  saying,  that  of  two  innocent  persons,,  the  principal  and  not  the 
agent  should  sustain  the  loss. 

In  Leate  v.  Turkey  Company  Merchants,  Toth.  105,  it  was  decreed, 
that  if  a  consul  beyond  sea  bath  Dower,  and  do  levy  goods  upon  a 


752  d'arcy  v.  lyle.  [chap.  vi. 

private  merchant,  the  company  must  bear  the  loss,  if  the  factor  could 
not  prevent  the  act  of  the  consul.  The  decree  is  founded  in  the 
highest  justice,  and  its  reason  peculiarly  applies  to  the  present  case. 
D'Arcy  was  doomed  by  the  cruel  order  of  an  inexorable  tyrant,  cither 
to  pay  the  $3,000,  or  in  his  hated  presence  to  fight  his  antagonist  until 
one  of  them  should  fall. 

Upon  the  whole,  I  am  of  opinion  that  the  motion  for  the  new  trial  be 
denied. 

Brackenridge,  J.  Whatever  conditional  stipulation  it  might  have 
been  necessar}'  for  D'Arcy,  the  agent  of  Lyle,  to  have  made,  provided 
that  stipulation  was  not  so  much  against  the  interest  of  Lyle  as  to 
come  under  the  denomination  of  an  unreasonable  stipulation,  and  to 
constitute  a  mal-agenc\'  respecting  the  subject  of  the  agency,  Lyle,  the 
principal,  must  have  been  bound  b^'  it.  The  giving  bond  to  produce 
the  power  of  attorney,  in  order  to  receive  the  goods  of  Lyle,  out  of  the 
hands  of  Suckley,  which  would  seem  to  have  been  detained  under  the 
claim  of  Richardson,  might  be  deemed  prudent;  and  had  the  power  of 
attorney  not  have  been  produced,  owing  to  no  fault  of  D'Arc}',  but  to 
accident,  or  the  impossibility  of  getting  it  in  time,  Lyle  might  be  con- 
sidered as  bound  to  pa}*  the  bond,  as  the  goods  had  been  disposed  of 
for  his  benefit.  But  the  power  of  attorney  was  received,  and  the  bond 
satisfied  ;  and  we  hear  no  more  of  this.  It  is  on  an  entire  new  ground, 
that  a  claim  was  advanced  b}'  Richardson  against  D'Arcy  as  the  agent 
of  Lyle.  It  is  that  of  an  agreement  or  stipulation  b^' him  (D'Arcy), 
that  in  consideration  of  having  obtained  a  delivery  of  the  goods  of 
Lyle,  he  would  pay  the  debt  due  by  Suckley,  and  in  whose  possession 
the  goods  of  L3-le  were,  a  debt  due  and  owing  from  Suckley  to  him 
(Richardson)  as  agent  for  a  house  in  Charleston.  Had  he  made  such 
agreement,  and  it  should  turn  out  that  this  debt  was  beyond  the  value 
of  the  goods  received  for  the  use  of  Lyle,  it  would  be  an  unfaithful, 
being  an  improvident  agency ;  and  he  would  not  be  considered  as 
entitled  to  recover  from  Lyle,  more  than  the  value  of  the  goods  which 
he  had  received,  and  the  money  arising  from  the  sale  of  which  had 
come  to  the  hands  of  Lyle.  But  D'Arc}'  admits  that  he  had  made  no 
such  agreement  or  stipulation  whatever,  on  behalf  of  Lyle,  in  order  to 
receive  his  goods,  or  to  have  them  delivered  to  him.  How  then  can  he 
claim  against  Lyle  ? 

It  is  alleged  to  be  on  the  ground  that  Richardson  had  compelled  him 
from  a  fear  of  life  to  acknowledge  such  agreement.  It  was  on  the 
allegation  of  Richardson,  that  Christophe,  the  master  of  the  gang,  inter- 
fered, and  compelled  D'Arcy  to  acknowledge  such  agreement.  He 
compelled  him  to  come  into  a  court  of  his,  who  had  given  judgment  to 
the  contrary,  and  confess  such  agreement ;  in  other  words,  to  retract  a 
denial  of  such  agreement,  and  give  his  court  color  for  reversing  the 
judgment  before  given.  This  cannot  be  distinguished  from  a  com- 
pulsion without  color,  to  retract  a  denial,  and  confess  an  agreement. 
It  is  the  same  thing  as  if  Richardson  and  Christophe,  out  of  doors,  had 


SECT.  I.]  D'ARCY   V.   LYLE.  753 

compelled  through  a  fear  of  life  D'Arcy,  not  onh'  to  pay  mone}',  but  to 
acknowledge  that  he  had  agreed  to  pay  it.  A  common  carrier  has  car 
ried  the  money  of  B.  to  pay  C.  He  is  met  b}-  a  gentlemanh'  footpad, 
who  says  that  the  money  is  his  so  carrying  to  C.  It  is  denied  bj-  A., 
who  is  suffered  to  go  on.  But  on  his  return,  he  is  again  accosted  by 
the  same  footpad,  who  alleges  that  he  agreed  to  pay  him  that  sum  or  a 
greater,  on  condition  that  he  should  be  suffered  to  go  on  and  carry  to 
C.  It  is  denied,  but  the  master  of  the  gang  interposes,  and  says  he 
shall  acknowledge  the  agreement.  The  acknowledging  the  agreement 
never  made  is  but  the  sub  modo  of  the  robbery.  It  is  but  the  robbery  of 
the  carrier,  under  a  pretence  of  having  carried  the  money  of  B.,  which 
he  the  footpad  alleges  belonged  to  him,  and  which  he  the  carrier  had 
agreed  on  his  first  journey  to  be  the  fact,  and  now  on  his  return  should 
pay  him,  and  even  a  greater  sum.  In  this  case  it  would  appear  to  be 
as  perfectly  a  pretence  as  that  of  the  wolf  in  the  fable,  accusing  the 
lamb  of  disturbing  the  stream.  Wh}'  is  it  that  a  carrier  must  be 
answerable  for  goods  notwithstanding  a  robbery?  It  is  the  policy  of 
the  law,  founded  on  the  possibilit}'  of  a  carrier  procuring  himself  to  be 
robbed.  Will  not  the  same  policy  be  in  the  way  of  an  agent  recover- 
ing for  an  alleged  robber}- ;  robbed  more  especially  not  of  the  goods  in 
his  possession,  but  of  other  goods,  on  account  of  having  had  these  ? 
Settling  such  a  principle  would  render  it  unsafe  to  have  an  agent  at  all. 
There  are  two  things  or  circumstances  which  take  this  case  entirely 
out  of  all  reason  and  justice  :  the  remaining  in  the  country  after  the 
agency  as  to  the  principal  had  been  closed,  and  it  being  the  act  of  the 
agent  himself  that  gave  color  to  the  compulsion.  He  was  put  in  fear, 
fear  of  his  life  ;  a  fear  that  would  excuse  or  justify  a  constant  and 
resolute  man  ;  that  is  clear.  But  it  is  his  misfortune,  and  I  can  con- 
sider Lyle  under  no  obligation  to  indemnify'  him  for  the  loss.  His 
redress,  if  he  shall  ever  be  able  to  obtain  anj',  must  be  against  the 
spoiler,  or  those  for  whom  he  may  have  acted,  or  who  may  have 
obtained  the  advantage  of  his  wrong.  There  is  a  third  circumstance 
in  this  verdict  which  would  justify  a  new  trial ;  the  sum  given  being 
beyond  the  value  of  the  goods  or  mone}-,  even  with  interest,  which 
D'Arcy  the  agent  alleges  to  have  been  paid,  on  account  of  obtaining 
possession  of  the  propert}'  of  Lj-le.  But  on  the  two  first  grounds,  I 
do  not  think  him  entitled  to  recover.  I  see  nothing  of  an  appeal  from 
a  proceeding  under  a  claim  made  or  interposed  against  the  goods  of 
Lyle.  Xor  am  I  able  to  see  anything  like  a  growing  out  of  the  claim  ; 
it  ma}'  be  said  to  be  engrafted  on  it,  or  adscititious  to  it,  or  springing 
up  with  it.  But  the  act  of  D'Arcy  himself,  confessing  an  agreement, 
is  the  onh'  thing  tliat  can  connect ;  and  this  he  admits  did  not  exist. 
His  agency  for  Lyle  might  be  said  to  be  the  occasion,  but  could  not  be 
considered  the  cause  of  his  loss.  But  it  was  rather  the  occasion  of  the 
pretence  that  was  set  up,  and  to  which  D'Arc}'  himself  gave  sanction ; 
and  if  he  has  saved  liis  life  by  that,  he  must  keep  his  life  as  that  for 
which  he  sustained  the  loss.     It  is  not  more  nor  less  than  if  an  agent, 

48 


754  ADAMSON   V.   JARVIS.  [CHAP.  VT. 

having  resisted  a  claim,  set  up  against  his  quondam  principal,  and  to 
avoid  a  challenge,  should  come  into  one  of  our  courts,  and  move  to 
have  the  judgment  in  his  favor  set  aside,  and  to  confess  a  judgment 
against  his  principal,  which,  if  allowed,  might  be  to  any  amount.  It  is 
a  question  with  moralists  whether  it  is  lawful  for  the  sake  of  life  or 
property  to  depart  from  truth. 

Propter  vitam,  vivendi  perdere  causas. 

Where  a  person  had  a  right  to  expect  the  truth,  it  is  not  lawful,  how- 
ever under  circumstances  it  may  be  excusable.  But  for  one  to  evade  a 
risk  by  departing  from  the  truth,  and  to  attempt  to  throw  the  loss  upon 
another  person,  is  totalh*  inadmissible  ;  it  cannot  be  done.  If  any 
argument  could  be  drawn  from  the  circumstance  of  the  master  of  the 
gang,  Christophe,  being  a  principal  as  to  the  force,  it  must  be  evident 
that  it  might  be  owing  to  the  indiscreet  expressions  respecting  Chris- 
tophe, and  his  influence  upon  the  administration  of  justice  in  his  courts, 
that  induced  him  to  interpose.  This  was  the  act  of  Richardson.  I 
am,  therefore,  of  opinion  for  the  defendant. 

I^ew  trial  refused.^ 


ADAMSON  V.   JARVIS. 
Common   Pleas.     1827. 

[4  Bing.  66.] 

A  VEEDiCT  was  entered  for  the  plaintiff  upon  a  count  which  stated, 
that  defendant  on  the  18th  of  April,  1817,  to  wit,  at  London,  was  pos- 
sessed of  divers  cattle,  goods,  and  chattels  of  great  value,  to  wit,  of 
the  value  of  .£1100,  and  being  so  possessed  thereof,  afterwards,  to  wit, 
on,  &c.,  at,  &c.,  represented  and  affirmed  to  plaintiff  that  the  defendant 
was  legally  and  of  right  entitled  to  sell  and  dispose  of  said  cattle, 
goods,  and  chattels,  and  then  and  there  requested  plaintiff  to  put  up 
and  expose  the  same  to  sale  by  public  auction  for  him  defendant ;  that 
plaintiff,  confiding  in  the  said  representation  and  affirmation  of  defend- 
ant, and  believing  the  same  to  be  true,  and  not  knowing  to  the  contrary 
thereof,  did  afterwards,  to  wit,  on,  &c.,  at,  &c.,  put  up  and  expose  to  sale 
by  public  auction  the  said  cattle,  goods,  and  chattels,  and  then  and  there 
sold  the  same  to  divers  persons  there  then  assembled  for  the  purchase 
thereof,  for  a  large  sum  of  money,  to  wit,  the  sum  of  £601  2s.  9d. ; 
and  plaintiff,  after  deducting  and  paying  thereout  divers  sums  of  money 
which  he  plaintiff  was  entitled  to  deduct  and  bound  to  pay  thereout, 
amounting  in  the  whole  to  a  large  sum  of  mone}-,  to  wit,  the  sum  of 
£187  18.9.  lid.,  paid  over  the  residue  thereof,  to  wit,  the  sum  of  £41.3 
3s.  lOd.  to  defendant ;  whereas  in  truth  and  in  fact  defendant  deceived 

1  See  Southern  v.  How,  Cro.  Jac.  468  (1617-18),  s.  c.  Bridgraan,  125.  —  Ed. 


SECT.  I.]  ADAMSON   V.   JARVIS.  755 

and  defrauded  plaintiff  in  this,  to  wit,  that  defendant  was  not  at  the 
time  of  the  said  sale  legally  or  of  right  entitled  to  sell  and  dispose  of 
the  said  cattle,  goods,  and  chattels,  or  of  any  part  thereof,  to  wit,  at 
London  aforesaid. 

Plaintiff  further  said,  that  afterwards,  to  wit,  on  the  16th  of  Ma}', 
1822,  at  Westminster,  to  wit,  at,  &c.,  before  the  Right  Honorable  Sir 
Robert  Dallas  and  his  companions,  then  being  his  present  Majesty's 
justices  of  the  bench,  there,  to  wit,  at,  &c.,  one  Joseph  Somersett,  as 
the  true  and  lawful  owner  of  the  said  cattle,  goods,  and  chattels  at  the 
time  they  were  so  exposed  to  sale  as  aforesaid,  brought  a  certain  action 
against  plaintiff  to  recover  the  value  of  said  cattle,  goods,  and  chattels 
so  sold  by  plaintiff  as  aforesaid,  and  such  proceedings  were  thereupon 
had  in  the  said  action  that  the  said  Joseph  Somersett  afterwards,  to 
wit,  in  Trinity  term  in  the  third  of  the  reign  of  his  said  present 
Majest}-,  before  the  said  justices  of  the  bench  at  Westminster  aforesaid, 
to  wit,  at,  &c.,  by  the  consideration  and  judgment  of  the  said  court 
recovered  against  plaintiff  a  large  sum  of  money,  to  wit,  the  sum  of 
£1100  as  and  for  the  value  of  the  said  cattle,  goods,  and  chattels  so 
sold  by  plaintiff  as  last  aforesaid,  and  the  further  sum  of  £9o  for  costs 
and  charges  b}'  Somersett  about  his  said  suit  in  that  ftehalf  expended, 
making  together  the  sum  of  £1195  as  by  the  record  and  proceedings 
thereof  still  remaining  in  the  said  court  at  Westminster  aforesaid  more 
fully  appears,  to  wit,  at,  «&;c. 

That  afterwards,  to  wit,  on  the  23d  of  November,  in  the  year  last 
aforesaid,  at  London  aforesaid,  he  plaintiff  was  forced  and  obliged  to 
pay,  and  then  and  there  did  pa}-,  to  said  Joseph  Somersett  the  said  sura 
of  £1195,  and  was  also  then  and  there  forced  and  obliged  to  lay  out 
and  expend  a  certain  other  large  sum  of  mone}',  to  wit,  the  sum  of  £500 
in  and  about  defending  the  said  action  so  brought  against  him  as  last 
aforesaid,  and  in  and  about  taking  and  pursuing  other  necessary  pro- 
ceedings made  incumbent  upon  him  in  consequence  of  the  said  sale 
and  the  said  recovery  ;  of  all  which  premises  the  said  defendant  after- 
wards, to  wit,  on,  &c.,  at,  &c.,  had  notice,  and  then  and  there  ought  to 
have  paid  and  satisfied  to  plaintiff  the  said  sums  of  mone}'  which  he  plain- 
tiff was  so  forced  and  obliged  to  pa}',  lay  out,  and  expend  as  aforesaid, 
and  was  then  and  there  requested  by  plaintiff  to  pay  him  the  same  ;  never- 
theless defendant  not  regarding  his  duty  in  that  behalf,  but  intending 
and  contriving  to  defraud  and  injure  plaintiff  in  this  respect,  did  not 
nor  would  (although  often  requested)  pa}'  or  satisfy  to  plaintiff  the  said 
sums  of  money  above  mentioned,  or  any  or  either  of  them,  or  any  part 
thereof,  but  hath  hitherto  wholly  refused,  and  still  doth  refuse  so  to 
do,  and  the  same  and  every  part  thereof  still  remain  wholly  due  and 
unpaid  to  plaintiff. 

Tdihhj^  Sorjt.,  in  the  last  term  moved  for  a  rule  nisi  in  arrest  of 
judgment,  on  the  ground  that  the  count  was  ill  conceived.  It  was 
neither  ex  co  ttractii  nor  ex  delicto.  There  was  no  retainer  of  the 
plaintiff  by  the  defendant  stated,  no  employment  of  him  for  reward,  no 


756  ADAMSON   V.    JARVIS.  [CHAP.  VL 

promise  on  either  side  to  raise  an  assumpsit ;  and  there  was  no  allega- 
tion of  fraud,  of  malicious  misrepresentation,  —  no  scienter,  —  to  con- 
stitute a  tort ;  on  the  contrary-,  whatever  might  have  been  the  case  at 
the  time  of  the  sale,  at  the  time  of  the  representation  it  appeared  that 
the  defendant  was  lawfully-  in  possession  of  the  property  in  question. 
Haycraft  v.  Creas}-,  2  East,  92,  was  an  express  decision  to  show  that 
an  action  of  tort  would  not  lie  unless  the  misrepresentation  complained 
of  were  wilful,  and  intended  to  deceive. 

Wilde,  Serjt. ,  contra.  Enough  is  stated  on  this  count  to  warrant 
a  judgment  against  the  defendant,  after  verdict.  The  representation 
that  the  defendant  was  entitled  to  sell  amounts  to  an  express  warranty 
to  sa^'e  the  plaintiff  harmless  ;  it  would  have  been  a  warranty  to  a  pur- 
chaser, and  is  equally  so  to  an  agent.  Where  there  is  an  express  war- 
rant}',  it  is  not  necessary'  to  aver  that  the  defendant  knew  it  to  be  false, 
or  that  he  intended  to  defraud.  It  is  sufficient  if  the  defendant  be 
alleged  to  have  stated  as  true  that  which  he  had  not  ascertained  to  be 
so.  Even,  however,  if  deceit  were  necessar\'  to  impose  liability,  deceit 
is  here  sufficiently  averred  in  the  allegation  that  the  defendant  by  his 
representations  deceived  and  defrauded  the  plaintiff,  and  the  receipt  by 
the  defendant  (#  the  proceeds  of  the  sale  is  conclusive  to  show  that 
he  persisted  in  his  misrepresentation  to  the  last.  Crosse  v.  Gardner, 
Carth.  90,  is  in  point  for  the  plaintiff.  In  that  case  the  defendant  had 
affirmed  that  certain  oxen  which  he  sold  to  the  plaintiff  were  his,  when 
in  fact  the}'  belonged  to  another  person.  It  was  there  objected,  as  in 
the  present  case,  that  the  declaration  neither  stated  that  the  defendant 
deceitfully  sold  them,  nor  that  he  knew  them  to  be  the  property  of 
another  person  ;  and  yet  it  was  holden  that  the  action  lay.  That  case 
(with  others  to  the  same  effect  in  1  Roll.  Abr.  95.  Cro.  Jac.  474)  was 
confirmed  in  Pasle}-  y.  Freeman,  3  T.  R.  51,  where  the  defendant  was 
held  liable  for  the  consequences  of  a  fraudulent  misrepresentation, 
although  he  derived.no  benefit  from  it.  In  the  present  case  the  de- 
fendant reaped  all  the  profit  he  proposed  by  the  misstatement  he  made 
to  the  plaintiff. 

Tadcly.  No  contract  between  the  plaintiflJ"  and  defendant  is  stated 
on  the  record ;  they  must,  therefore,  be  both  considered  as  joint  tort 
feasors,  and  the  present  action  as  nothing  else  but  an  attempt  by  one 
tort  feasor  to  recover  contribution  from  another,  which  the  law  does 
not  permit.  In  all  the  cases  cited  there  was  a  contract  between  the 
parties :  as  in  Crosse  v.  Gardner,  where  the  defendant  sold  the  oxen 
to  the  plaintiff;  in  1  Roll.  Abr.  95,  and  Cro.  Jac.  425,  where  an  agent 
sold  lands  to  the  plaintiff  under  an  express  warrant}'.  In  the  present 
case  there  is  no  contract  between  the  plaintiff  and  defendant,  but  only 
a  request  made  to  the  plaintiff  by  the  defendant  to  commit  a  trespass. 
But  the  declaration  ought  to  have  shown  either  a  breach  of  contract,  or 
a  false  affirmation  made  with  intent  to  deceive.  A  declaration  on  a  tort 
arising  out  of  a  contract  ought  always  to  show  that  a  contract  existed 
between  the  parties,  Max  v.  Roberts,  12  East,  89.     And  a  declaration 


SECT.  I.]  ADAMSOX    V.    JARVIS.  757 

on  a  false  representation  ought  at  least  to  allege  a  scienter,  Pasle}-  v. 
Freeman,  Hajeraft  v.  Creas}'.  If  a  declaration  such  as  the  present  be 
held  sufficient,  everj'  tort-feasor  ma}-  recover  compensation  against  his 
companion.  The  plaintiff  ought  to  have  required  a  bond  of  indemnity 
of  the  defendant  before  he  proceeded  to  sell. 

Cur.  ado.  vuU. 

Best,  C.  J.  A  motion  has  been  made  in  arrest  of  judgment  after 
verdict.  The  plaintiff  relies  on  the  second  count,  on  which  ouh'  his 
verdict  and  judgment  are  to  be  entered. 

Stripped  of  the  technical  language  with  which  it  is  encumbered,  the 
case  stated  on  the  second  count  is  this  :  that  the  defendant,  having 
property  of  great  value  in  his  possession,  represented  to  the  plaintiff 
that  he  had  authorit}'  to  dispose  of  such  propert}',  and  followed  this 
representation  hy  a  request  that  the  plaintiff  would  sell  the  property 
for  him,  the  defendant.  The  plaintiff,  believing  the  representation  of 
the  defendant  as  to  his  riglit  to  the  propert}-,  and  not  knowing,  either 
at  the  time  the  representation  was  made,  or  at  any  time  after,  that  it 
was  not  his,  as  the  agent  of  the  defendant,  sold  the  property  ;  and 
after  paying  such  sums  out  of  the  proceeds  as  he  was  bound  to  pay, 
and  making  sucli  deductions  as  he  had  a  right  to  make,  and  which  the 
defendant  appears  to  have  allowed,  paid  the  residue  to  the  defendant. 

The  defendant,  who  had  induced  the  plaintiff  to  make  this  sale  b}' 
his  false  representation  and  request  to  sell,  and  who,  after  the  sale, 
continued  to  assert  his  right  to  sell,  and  confirmed  the  agenc}'  of  the 
plaintiff  b\'  accepting  from  him  the  residue  of  the  proceeds  of  the  sale, 
had  no  right  to  dispose  of  this  property.  The  consequence  has  been 
that  the  plaintiff,  supposing,  from  the  defendant's  false  representations, 
he  had  an  authorit}-  which  he  had  not,  and  acting  as  the  defendant's 
agent,  has  rendered  himself  liable  to  an  action  at  the  suit  of  the  true 
owner  of  the  goods,  and  has  been  obliged  to  pay  damages  and  costs, 
whilst  the  defendant,  the  sole  cause  of  the  sale,  quietly  keeps  the  fruits 
of  it  in  his  pocket. 

It  has  been  stated  at  the  bar  that  this  case  is  to  be  governed  by  the 
principles  that  regulate  all  laws  of  principal  and  agent :  —  Agreed  : 
every  man  who  employs  another  to  do  an  act  which  the  employer 
appears  to  have  a  right  to  authorize  him  to  do  undertakes  to  indemnify 
him  for  all  such  acts  as  would  be  lawful  if  the  employer  had  the  author- 
it}'  he  pretends  to  have.  A  contrary  doctrine  would  create  great 
alarm. 

Auctioneers,  brokers,  factors,  and  agents  do  not  take  regular  indem- 
nities. These  would  be  indeed  surprised,  if,  having  sold  goods  for  a 
man  and  paid  him  the  proceeds,  and  having  suffered  afterwards  in  an 
action  at  the  suit  of  the  true  owners,  they  were  to  find  themselves 
wrong-doers,  and  could  not  recover  compensation  from  him  who  had 
induced  them  to  do  the  wrong. 

It  was  certainly  decided  in  Merryweather  v.  Nixan,  8  T.  R.  186, 
that  one  wrong-doer  could  not  sue  another  for  contribution  ;  Lord  Ken- 


758  ADAMSON   V.   JARVIS.  [CHAP.  VL 

yon,  however,  said  "that  the  decision  would  aot  affect  cases  of  indem- 
nit}-  where  one  man  employed  another  to  do  acts,  not  unlawful  in 
themselves,  for  the  purpose  of  asserting  a  right."  This  is  the  onl}' 
decided  case  on  the  subject  that  is  intelligible. 

There  is  a  case  of  Walton  v.  Hanburj'  and  others,  2  Vern.  592,  but 
it  is  so  imperfectly  stated  that  it  is  impossible  to  get  at  the  principle 
of  the  judgment. 

The  case  of  Philips  v.  Biggs,  Hardr.  164,  was  never  decided;  but 
the  Court  of  Chancer^'  seemed  to  consider  the  case  of  two  sheriffs  of 
Middlesex,  where  one  had  paid  the  damages  in  an  action  for  an  escape, 
and  sued  the  other  for  contribution,  as  like  the  case  of  two  joint 
obligors. 

From  the  inclination  of  the  court  on  this  last  case,  and  from  the  con- 
cluding part  of  Lord  Kenyon's  judgment  in  Merry  weather  v.  Nixan, 
and  from  reason,  justice,  and  sound  policy,  the  rule  that  wrong-doers 
cannot  have  redress  or  contribution  against  each  other  is  confined  to 
cases  where  the  person  seeking  redress  must  be  presumed  to  have 
known  that  he  was  doing  an  unlawful  act. 

If  a  man  buys  the  goods  of  another  from  a  person  who  has  no  author- 
it}'  to  sell  them,  he  is  a  wrong-doer  to  the  person  whose  goods  he 
takes  ;  yet  he  ma}'  recover  compensation  against  the  person  who  sold 
the  goods  to  him,  although  the  person  who  sold  them  did  not  undertake 
that  he  had  a  right  to  sell,  and  did  not  know  that  he  had  no  right  to 
sell.  That  is  proved  by  Medina  v.  Stougliton,  1  Salk.  210,  Sanders  v. 
Powel,  1  Lev.  129,  Crosse  v.  Gardner,  Carth.  90,  1  Roll.  Abr.  91,  1.  5, 
and  man}-  other  cases. 

These  cases  rest  on  this  principle,  that  if  a  man,  having  the  posses- 
sion of  property  which  gives  him  the  character  of  owner,  affirms  that 
he  is  owner,  and  thereby  induces  a  man  to  bu}',  when  in  point  of  fact 
the  affirmant  is  not  the  owner,  he  is  liable  to  an  action. 

It  has  been  said  that  is  because  there  is  a  breach  of  contract  to  rest 
the  action  on,  and  that  there  is  no  contract  in  this  case.  This  is  not 
the  true  principle  ;  it  is  this  :  he  who  affirms  either  what  he  does  not 
know  to  be  true,  or  knows  to  be  false,  to  another's  prejudice  and  his 
own  gain,  is  both  in  moralit\'  and  law  guilty  of  falsehood,  and  must 
answer  in  damages. 

But  here  is  a  contract :  the  plaintiff  is  hired  bj-  defendant  to  sell, 
which  implies  a  warranty  to  indemnify  against  all  the  consequences  that 
follow  the  sale. 

The  above-cited  cases  show  that  a  scienter  is  not  necessary  in  this 
case,  although  it  was  necessar}'  in  the  case  of  Havcraft  v.  Creas}'  and 
the  cases  of  that  class.  In  these  cases,  a  party  who  had  no  interest  was 
applied  to  for  his  opinion  ;  if  he  gave  an  lionest,  although  mistaken 
one,  it  was  all  that  could  be  expected. 

But  it  has  been  said,  you  have  not  shown  that  the  affirmation  was  false 
at  the  time  it  was  made  ;  for  the  breach  is,  not  that  plaintiff  had  not 
authority  to  sell  at  the  time  he  said  he  had,  but  at  the  time  of  the  sale, 
which  was  subsequent. 


SECT.  I.]  ADAMSON   V.    JARVIS.  759 

But  the  complaint  is,  that  defendant  affirmed  he  liad  power  to  sell, 
and  followed  that  affirmation  by  a  request  to  sell ;  which  affirmation 
and  request  induced  plaintiff  to  sell  when  defendant  had  no  right  to  give 
him  authority  to  make  such  sale.  This  affirmation  and  request  caused 
the  plaintiff  to  do  an  act  which  has  been  injurious  to  him  and  beneficial 
to  the  defendant. 

For  this  injur}'  plaintiff  is  entitled  to  compensation,  whether  the 
affirmation  was  false  or  true  at  the  time  it  was  made. 

If  defendant  had  authority  to  sell  at  the  time  he  employed  plaintiff, 
but  ceased  to  have  that  authority  at  the  time  of  the  sale,  he  should 
have  informed  plaintiff  of  this  change  in  his  situation,  and  prevented 
him  from  doing  what  he  ought  not  to  have  done ;  at  all  events, 
he  should  not  have  taken  the  proceeds  of  the  sale. 

If  after  verdict  we  can  collect  a  cause  of  action,  or  infer  that  proof 
must  have  been  given  at  the  trial,  that  will  support  the  action,  and  the 
judgment  may  be  sustained. 

In  Weston  v.  Mason,  3  Burr.  1725,  which  was  an  action  on  a  bond 
brought  against  the  sureties  of  the  sheriff's  bailiff,  the  condition  recited 
that  the  sheriff  had  appointed  the  bailiff  for  the  hundred  of  East  Got- 
son,  and  it  did  not  appear  that  the  warrant  which  he  was  charged  not 
to  have  returned  was  directed  to  him  as  bailiff  of  that  hundred  ;  but 
the  court  said  that,  being  in  arrest  of  judgment,  as  it  did  not  appear 
that  it  was  not  directed  to  him  as  bailiff  of  that  hundred,  which  the 
defendant  might  have  shown,  it  was  sufficient.  In  Bull  v.  Steward, 
1  Wils.  255,  in  an  action  against  the  bailiffs  of  the  borough  for  an  escape, 
it  did  not  appear  that  the  cause  of  action  arose  within  the  jurisdiction  of 
the  court ;  but  it  was  held  that  after  verdict  the  court  would  presume  any- 
thing proved  at  the  trial  which  was  necessary  to  be  proved,  unless  the 
contrary  appeared  on  the  face  of  the  record. 

On  these  authorities  the  court  might  sa}',  as  the  defendant  has  not 
shown  that  he  was  authorized  to  sell  at  the  time  he  affirmed  he  was, 
and  as  it  is  proved  he  was  not  authorized  at  the  sale,  we  will  presume 
that  he  never  had  authority  at  anv  time.  But  the  main  ground  is,  that 
he  has  created  a  belief  in  the  plaintiff  that  he  had  authority  when  he 
clearly  had  no  authority-. 

Max  V.  Roberts,  which  has  been  cited,  does  not  apply :  it  did  not 
appear  that  defendant  had  ever  undertaken  to  carr}-  the  goods,  and 
therefore  he  could  not  be  answerable  for  taking  them  out  of  the  due 
course  of  the  voyage.  Hule  discharged.^ 

1  Ace:  Coventr)'  v.  Barton,  17  Johns.  142  (1819) ;  Betts  v.  Gibbins,  2  Ad.  &  E. 
57  (1834) ;  Moore  v.  Appleton,  26  Ala.  633  (185.5). 

And  see  Fletcher  i'.  Harcot,  Hutton,  55  (1622),  s.  c.  sub  nom.  Ballersey's  Case, 
Winch,  48;  Dugdale  v.  Lovering,  L.  R.  10  C.  P.  196  (1875);  Palmer  v.  Wick  and 
Pultneytown  Steam  Shipping  Co.,  [1894]  A.  C.  318,  324,333  (H.  L.  Sc.).  — Ed. 


760  DUNCAN    V.    HILL.  [CHAP.  VL 


DUNCAN    AND    ANOTHER    V.    HILL. 

THE  SAME  V.  BEESON. 
Exchequer  Chamber.     1873. 

[L.  E.  8  Ex.  242.] 

Appeals  in  two  actions  involving  tlie  same  question. 

In  tiie  first,  Duncan  v.  Hill,^  the  appeal  was  against  the  judgment  of 
the  Court  of  Exchequer  discharging  a  rule  to  enter  a  nonsuit,  or  to 
reduce  the  damages  to  £1688  19^.,  which  had  been  obtained  on  the 
ground  that  the  further  damages  claimed  were  not  damages  recoverable 
against  tlie  delendant,  and  that  in  that  respect  the  plaintiffs  were  not 
legally  damnified  or  entitled  to  indemnification,  or  otherwise  to  recover 
in  the  action. 

The  plaintiffs  were  stockbrokers  who  had  been  employed  by  the 
defendant  to  buy  and  sell  shares  for  him  upon  the  Stock  Exchange- 
In  1870  they  bought  for  the  defendant  large  quantities  of  stocks  and 
shares  for  the  15th  of  Juh',  and  on  tliatda^',  by  the  defendant's  instruc- 
tions, carried  them  over  to  the  next  account  da}'  (29th  of  July),  paying 
differences  amounting  to  £1688  Ids.  On  the  18th  of  July  the  plain- 
tiffs, being  unable  to  meet  their  engagements,  by  reason  of  various 
persons  for  whom  they  had  effected  contracts  (and  amongst  others  the 
defendant)  failing  to  make  their  due  payments,  they  were  declared 
defaulters  ;  and,  according  to  the  rules  of  the  Stock  Exchange,  all 
their  transactions  were  closed  at  the  prices  current  on  that  da}-.''  The 
result  of  this  was  to  make  them  liable  to  pa}'  a  further  sum  for  differ- 
ences upon  the  stocks  and  shares  so  carried  over  b}'  them  for  the 
defendant.  The  plaintiffs  had  paid  a  dividend  of  6^.  6d.  in  the  pound 
to  their  Stock  Exchange  creditors,  and  a  further  dividend  was  expected. 
This  action  was  brought  in  the  names  of  the  plaintiffs,  but  for  the  bene- 
fit of  their  creditors,  to  recover  the  sum  of  £6013  13s.  5c?.,  which  in- 
eluded  the  £1688  19s.,  as  well  as  the  sum  which  the  defendants  became 
liable  to  pay  upon  their  being  declared  defaulters. 

In  the  second  action,  Duncan  v.  Beeson,^  the  appeal  was  against 
the  judgment  of  the  Court  of  Exchequer  discharging  a  rule  to  enter  a 
nonsuit  which  had  been  obtained  on  the  ground  that  the  defendant  was 
not  liable  to  make  good  any  part  of  the  loss  incurred  by  the  closing  of 
defendant's  share  account  upon  the  plaintiffs  becoming  defaulters  on 
the  Stock  Exchange  ;  that  the  account  was  closed  contrary  to  defend- 
ant's authority  and  against  his  will,  and  owing  to  the  plaintiffs'  own 
defaults,  and  that  defendant  was  not  liable  to  indemnify  plaintiffs 
against  the  loss  thereby  occasioned  to  or  paid  b}'  the  plaintiffs  ;  that 
no  usage  of  the  Stock  Exchange  was  proved  sufficient  to  make  the 

1  Reported  L.  R.  6  Ex.  255,  where  the  pleadings  are  set  out. —  Rep. 

2  See  Rules  142,  167,  169,  L.  R.  6  Ex.  257,  n.  —  Rep. 
*  Reported  L.  R.  6  Ex.  268,  n.  —  Rep. 


SECT.  I.J  DUNCAN   V.    HILL.  76] 

defendant  liable  to  this  action,  and  that  the  usage,  if  an}',  did  not 
extend  to  entitle  a  broiier  to  charge  a  loss  arising  from  his  own  default 
against  his  principal. 

The  plaintiffs  were  tlie  same  as  in  the  other  action,  and  the  facts 
were  similar,  except  that  tlie  sum  paid  b}-  the  plaintiffs  for  differences 
in  carrying  over  the  stoclis  on  the  loth  of  July  had  before  action 
been  repaid  by  the  defendant.  The  sum  souglit  to  be  recovered 
was  £425. 

Joseph  Brovm^  Q.  C.  {Sir  J.  B.  Kar slake ^  Q.  C,  and  J.  0.  Griffits 
(in  Duncan  t'.  Hill),  and  Philbrick  (in  Duncan  c.  Beeson),  with  him, 
for  the  defendants  in  both  actions. 

Sir  J,  D.  Coleridge,  Q.  C,  S.  G.  {Poioell,  Q.  C,  and  Day,  Q.  C, 
with  hhn),  for  the  plaintiffs  in  the  first  action. 

Poicell,  Q.  C.  {Murphy  with  him),  for  the  plaintiffs  in  Duucau  v. 
Beeson,  did  not  argue. 

The  judgment  of  the  courts  (Blackburn,  Keating,  Grove,  Brett, 
QuAiN,  Archibald,  and  Honyman,  JJ.)  was  delivered  by 

Blackburn,  J.^  Both  actions,  whatever  be  the  precise  form  ot 
them,  are  actions,  in  contemplation  of  law,  brought  b\-  the  plaintiffs, 
as  brokers  and  agents,  against  the  defendants,  as  tlieir  principals,  for 
an  indemnit}'.  They  are  founded  upon  allegations  that  the  agent  has 
incurred  a  loss  b}'  reason  of  having  acted  as  agent  for  his  principal. 
They  are  actions  founded  on  the  ordinarj'  and  general  principles  of 
common  law  with  regard  to  implied  indemnities.  It  must  be  admitted 
that  the  plaintiffs  were  authorized  by  the  defendants  to  enter  into  con- 
tracts in  their  behalf  according  to  the  rules  of  the  Stock  Exchange.  It 
must  be  admitted  that  for  any  loss  incurred  hy  the  agent  by  reason  of 
his  having  entered  into  such  contracts  according  to  such  rules,  unless 
they  be  wholly  unreasonable,  and  where  the  loss  is  without  anj-  per- 
sonal default  of  his  own,  he  is  entitled  to  be  indemnified  by  his  prin- 
cipal upon  an  implied  contract  to  that  effect.  But  it  is  argued,  that 
where  the  agent,  as  in  this  case,  is  subjected  to  loss,  not  by  reason  of 
his  having  entered  into  the  contracts  into  which  he  was  authorized  to 
enter  by  his  principal,  but  bj'  reason  of  a  default  of  his  own,  that  is  to 
sa}',  as  in  this  case,  by  reason  of  his  insolvenc}',  brought  on  by  want 
of  means  to  meet  his  other  primar}'  obligations,  it  cannot  be  said  that 
he  has  suffered  loss  by  reason  of  his  having  entered  into  the  contracts 
made  by  him  on  behalf  of  his  principal,  and  consequently  there  is  no 
promise  which  can  be  implied  on  the  part  of  his  principal  to  indemnify 
him  ;  and  in  the  present  cases  there  certainly  was  no  express  promise  to 
this  effect.  These  allegations,  both  as  to  fact  and  law,  seem  to  us  to  be 
correct.  There  was  no  failure  by  the  defendants  in  any  part  of  their 
undertakings  ;  there  was  no  evidence  that  the  insolvenc}'  of  the  plain- 
tiffs was  occasioned  by  reason  of  their  having  entered  into  the  contracts 
for  the  defendants;  it  is  consistent  with  the  evidence  that  the  plaintiffs 
would  have  become  insolvent  precisel}-  at  the  same  time  as  they  did  if 

1  After  stating  the  facts.  —  Ed. 


762  MAITLAND    V.   MARTIN.  [CHAP.  VI, 

they  had  not  entered  into  an}'  contract  for  either  of  the  defendants. 
The  plaintiffs'  insolvency-  was,  so  far  as  regards  the  defendants,  entire!}^ 
the  resnlt  of  their  own  default.  We  think  tliere  is  no  imi)lication  of 
law  to  force  upon  the  defendants  an  obligation  to  indemnify  the 
plaintiffs  in  such  a  case. 

We  think,  therefore,  that  the  judgment  below  should  be  reversed, 
and  the  rule  in  the  case  of  Duncan  v.  Hill  be  made  absolute  to  reduce 
the  damages  to  £1688  lO.s.,  and  in  the  case  of  Duncan  v.  Beeson  that 
the  rule  be  absolute  to  enter  a  verdict  for  the  defendant. 

Judgment  reversed. 


MAITLAND   v.   MARTIN. 
Supreme  Court  of  Pennsylvania.     1878. 

[86  Pa.  120.] 

Error  to  the  Court  of  Common  Pleas,  No.  2,  of  Philadelphia  county. 

Assumpsit  b}-  Caroline  Martin  against  Camille  D'Invilliers  and  John 
J.  Maitland,  trading  as  C.  D'Invilliers  &  Co.,  to  recover  the  value  of 
certain  bonds  purchased  b}'  said  firm  as  brokers.  D'Invilliers  died 
after  suit  brought,  and  it  was  afterwards  proceeded  with  against 
Maitland  alone. 

The  facts  are  full}'  stated  in  the  opinion  of  tliis  court.  At  the  trial, 
Pratt,  J.,  charged  the  jur}'  as  follows  :  ''  Tlie  plaintiff,  a  sister  of  Mr. 
Martin,  places  money  in  the  hands  of  defendants,  as  brokers.  Mr. 
Martin,  as  agent  for  his  sister,  gave  a  written  order  to  buy  South 
Carolina  bonds.  He  says  April  and  October.  Defendants  say  January 
and  July.  On  written  order  April  is  erased  and  July  substituted. 
Mr.  Martin  says  that  after  the  purchase  he  was  informed  by  defendants 
that  the  purchase  made  on  his  order  was  of  January  and  July  bonds. 
He  then  objected,  but  was  told  that  these  were  just  as  good  as  the 
others,  and  afterwards  said  nothing.  There  was  no  positive  acceptance 
on  his  part  further  than  acquiescence  goes.  The  bonds  were  never 
delivered  to  Martin.  You  must  judge  whether  Martin  b}'  his  conduct 
allowed  defendants  to  believe  that  he  acquiesced. 

"  We  find  these  bonds  in  the  hands  of  the  defendants  as  the  prop- 
erty of  the  plaintiff. 

"  In  1875  the  defendants  were  directed  to  sell  the  bonds.  An  order 
was  sent  by  defendants  to  a  New  York  broker  to  sell.  The  following 
da}'  the  bonds  were  shipped.  This  was  the  14th  of  May.  [On  the 
same  day  —  the  14th  —  the  defendants  were  advised  by  their  New 
York  correspondent  that  the  bonds  were  sold,  and  a  check  was  sent 
over  for  the  amount,  and  was  received  by  defendants.  This  was  a 
completed  transaction.] 

"The  purchaser  found,  upon  seeing  the  bonds,  that  three  of  them 
were   not    marketable,    and    refused    to   receive    them.      Defendants 


SECT.  I.]  MAITLAND   V.    MARTIN.  763 

thereupon  purchased  other  bonds  and  delivered  them  to  the  purchaser, 
leaving  three  of  the  bonds  ordered  b}'  the  plaintiff  to  be  sold,  on  hand. 

"  At  the  time  of  this  sale  the  defendants  were  agents  for  the  plain- 
tiff, in  relation  to  these  bonds.  An  authority  to  sell  does  not  imply  an 
authority  to  buy.  An  agent  who  exceeds  his  authorit}-  adopts  the  act 
as  his  own,  and  is  no  longer  agent. 

"[Plaintiff  ordered  her  bonds  sold  at  thirty-three,  and  they  were 
sold  at  that  price.  If  you  believe  this,  then,  as  matter  of  law,  D 'In- 
villiers  was  responsible  for  rescinding  the  contract.]  They  thereby 
adopted  the  theory  of  the  purchaser,  accepted  the  return  of  the  bonds, 
and  purchased  others  to  suppl}'  their  place,  and  fill  their  contract.  B5 
this  act  they  relieved  the  purchaser  from  liabilit}'  to  be  sued  upon  his 
contract. 

"  [If  defendants  rescinded  the  contract  and  took  back  the  bonds 
sold,  and  bought  others  to  fill  the  contract,  without  authority  from  the 
plaintiff,  they  adopted  the  loss  as  their  own.] 

"  [If  the  defendants  agreed  to  take  these  bonds  back  without  the 
consent  and  authority'  of  their  principals,  and  substituted  others  pur- 
chased by  them  in  lieu  thereof,  they  accept  these  bonds  as  their  own. 
The  three  bonds  are  in  the  hands  of  defendants  as  their  propert}'], 
and  the  measure  of  damages  would  be  the  amount  realized  from  the 
sale,  less  their  lawful  commissions." 

The  verdict  was  for  the  plaintiff  for  $1784.54,  and  after  the  entry  of 
judgment  the  defendant  took  this  writ,  alleging  that  the  court  erred  in 
the  foregoing  portions  of  the  charge  contained  in  brackets. 

George  Bull  and  James  H.  Campbell^  for  plaintiff  in  error. 

Thomas  J.  Diehl,  for  defendant  in  error. 

Mercur,  J.  This  action  was  brought  by  the  defendant  in  error  for 
money  had  and  received  for  her  use.  The  money  sought  to  be  re- 
covered came  into  the  hands  of  the  plaintiffs  in  error  under  the  follow- 
ing circumstances :  In  August,  1873,  being  brokers  in  the  city  of 
Philadelphia,  they  purchased  for  the  defendant  in  error  five  South 
Carolina  bonds,  of  the  nominal  value  of  $1000  each.  She  left  the 
bonds  in  their  possession.  They  were  sealed  up  in  an  envelope,  her 
name  indorsed  thereon,  and  deposited  in  the  safe  of  the  plaintiffs  in 
error  in  the  "  Fidelity."  They  thus  remained  until  May,  1875,  when 
she  instructed  the  plaintiffs  in  error  to  sell  them  at  thirtj'-three  per 
cent.  There  being  no  market  in  Philadelphia  for  them,  on  the  12th  of 
May  they  directed  their  correspondents,  Cecil,  Stout  &  Thaver, 
brokers  in  New  York,  to  sell  them.  By  despatch,  on  the  14th  of  Ma}', 
the}'  advised  the  plaintiffs  in  error  that  they  had  sold  at  the  price 
named.  Immediately  thereafter  the  plaintiffs  notified  the  defendant  of 
the  sale.  On  the  same  day  the  plaintiffs  forwarded  the  bonds  to  their 
correspondents  by  express,  and  requested  a  draft  to  be  remitted  for  net 
proceeds.  On  receipt  of  the  bonds,  Cecil,  Stout  &  Thayer,  remitted 
the  proceeds  to  plaintiffs  in  error  on  the  15th  May.  On  the  17th 
May,  and  while  the  proceeds  remained  in  the  hands  of  the  plaintiffs 


764  MAITLAND   V.    MARTIN.  [CHAP.  VI. 

in  error,  they  were  notified  by  Cecil,  Stout  &  Thayer,  that  three  of  the 
bonds  were  not  fundable,  and  not  a  good  delivery  at  the  price  for 
which  they  had  sold  them  ;  and,  therefore,  they  had  purchased  others 
at  the  same  price  to  supply  the  place  of  those  not  fundable,  and  held 
the  plaintiffs  in  error  for  the  sum  thus  advanced.  On  the  same  da}' 
the  plaintiffs  in  error  advised  the  defendant  of  the  substance  of  this 
notice,  and  further  requested  her  to  consider  the  sale  of  3000  of  the 
bonds  reported  by  them  sold,  as  cancelled.  They  also  directed  Cecil, 
Stout  &  Thayer,  to  return  the  three  bonds  not  accepted,  and  draw  on 
them  for  the  sum  paid.  Thereupon  Cecil,  Stout  &  Thayer,  returned 
the  bonds,  and  the  plaintiffs  in  error  paid  them  the  sum  which  the}-  had 
advanced. 

The  plaintiffs  in  error  offered  to  return  the  three  bonds  to  the  de- 
fendant, and  account  for  the  proceeds  of  the  two  others ;  but  she 
denies  their  right  to  hold  her  responsible  for  the  monej-  thus  paid  by 
them,  and  seeks  to  recover  the  whole  sura  agreed  to  be  paid  for  the 
five  bonds. 

It  appears,  by  the  evidence,  that  about  the  1st  of  June,  1874,  the 
treasurer  of  the  State  of  South  Carolina  issued  a  notice  that  certain 
bonds  of  that  State  had  been  declared  null  and  void  b}-  the  legis- 
lature, and  would  not  be  recognized.  Thereupon,  June  2d,  1874,  the 
New  York  Stock  Exchange  made  an  order  that  the  bonds  embraced 
in  said  notice  should  not  pass,  as  a  good  deliver}^,  on  a  sale  of  regular 
"  South  Carolina  bonds,"  after  that  date.  Three  of  these  bonds  appear 
to  have  been  repudiated  by  the  legislature,  and  at  the  time  of  the  sale, 
in  May,  1875,  were  not  fundable,  and  as  a  consequence  were  almost 
worthless.  Cecil,  Stout  &  Tha3'er,  professed  to  sell  "  fundable  bonds" 
onl}'.  They  supposed  all  of  the  five  to  be  of  that  class.  The  purchaser 
had  a  right  to  suppose  he  was  buying  such.  Discovering  that  three  of 
them  were  not  of  that  kind,  he  refused  to  accept  them.  Cecil,  Stout 
&  Thayer,  thereupon  replaced  them  with  such  bonds  as  filled  the  con- 
tract. If  these  facts  be  proved,  they  undoubtedly  had  a  valid  claim 
against  the  persons  in  whose  behalf  they  agreed  to  make  the  sale.  At 
the  time  the  plaintiffs  in  error  directed  them  to  make  the  sale,  they  did 
not  disclose  the  name  of  their  principal ;  yet  this  in  no  manner  changed 
the  legal  rights  and  liabilities  between  her  and  them.  The  specific 
bonds  were  her  property.  The  plaintiffs  were  her  agents  to  effect  a 
sale.  It  was  to  be  made  for  her  benefit.  The  plaintiffs  were  bound  to 
due  care,  prudence,  and  diligence  in  the  execution  of  the  powers 
committed  to  them.  These  they  appear  to  have  exercised.  They  kept 
their  principal  informed  of  their  action.  The  defendant  is  not  shown 
to  have  sustained  any  damage  by  reason  of  anj'  information  being  with- 
held from  her.  These  bonds  had  depreciated  while  owned  b}^  her. 
If  the  plaintiflTs  in  error,  while  acting  as  her  agents  in  effecting  the 
sale,  without  any  fault  on  their  part,  became  liable,  she,  and  not  they, 
must  bear  the  loss. 

The  object  to  be  effected  was  a  sale  of  the  bonds.     The  plaintiffs  in 


SECT.  I.]  READ   V.    ANDERSON.  765 

error,  as  well  as  Cecil,  Stout  &  Thayer,  were  acting  as  agents  to  reach 
that  end.  An  agreement  to  sell  fundable  bonds,  and  a  payment  ])y  the 
purchaser  to  one  agent,  and  his  transmission  to  another  agent,  did  not 
necessarily  complete  the  transaction. 

It  required  a  deliver}",  or  a  readiness  to  deliver,  the  bonds,  of  the 
kind  sold,  according  to  the  contract.  Anything  less  than  that  left  the 
transaction  incomplete,  unless  further  fulfilment  was  waived. 

In  fully  perfecting  a  sale  the  plaintiffs  in  error  were  strictly  in  the 
line  of  their  duty.  We  discover  nothing  affecting  their  good  faith.  If, 
then,  without  fault  on  their  part  in  the  honest  management  of  the  busi- 
ness of  the  defendant,  they  incurred  damages,  those  damages  must  be 
borne  by  her  and  not  by  them.  Stocking  v.  Sage,  1  Conn.  519  ;  D'Arcy 
V.  Lyle,  5  Binn.  441  ;  Whart.  on  Agents,  sect.  316. 

If  the  plaintiffs  in  error  in  good  faith  carried  out  the  contract  made 
with  the  purchaser,  they  did  not  thereby  adopt  the  loss  as  their  own 
and  relieve  the  defendant  from  her  legal  obligation  to  reimburse  them. 
Although  they  took  back  the  bonds,  without  the  express  consent  and 
authority  of  the  defendant,  yet  the}'  did  not  thereby  necessarily  accept 
them  as  their  own.  If  the  facts  are  found  to  be  as  stated,  the  purchaser 
was  justified  in  refusing  to  accept  the  bonds.  If  so  justified,  it  was 
clearh'  within  the  general  scope  and  authority  of  the  plaintifTs  in  error, 
as  her  agents,  to  fulfil  the  contract,  and  their  acts,  in  contemplation  of 
law,  became  her  acts.  Although,  b}'  failing  to  disclose  their  principal, 
the  plaintiffs  in  error  may  have  become  personally  liable  to  Cecil,  Stout, 
&  Thayer,  3-et  that  does  not  bar  the  right  of  the  plaintiffs  in  error  to 
require  the  defendant  to  make  their  loss  good.  It  therefore  follows 
that  many  portions  of  the  charge  were  too  unfavorable  to  the  plaintiffs 
in  error,  and  the  assignments  are  substantially  sustained. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded} 


READ   V.   ANDERSON. 

Court  op  Appeal.     1884. 

[13  Q.  B.  D.  779.] 

Appeal  by  the  defendant  from  the  judgment  of  Hawkins,  J.,  in 
favor  of  the  plaintiff,  after  trial  upon  further  consideration. 

The  facts  of  the  case  are  fuUv  stated  in  the  report  of  the  judgment 
of  Hawkins,  J.,  10  Q.  B.  D.  100,  and  also  are  briefly  mentioned 
in  the  judgments  of  Brett,  M.  R.,  and  Bowen,  L.  J.,  hereinafter  set 
forth. 

Petheram^  Q.  C,  and  MltcaJfe  Dale,  for  the  defendant. 

Finlay^  Q.  C.  {R.  A.  McCall  with  him),  for  the  plaintiff. 

Cur.  adv.  vult. 
1  See  Saveland  i'.  Green,  36  Wis.  612  (1875).  — Ed. 


766  READ   V.   ANDERSON.  [CIIAP.  VI. 

Brett,  M.  R.  This  case  was  tried  before  Hawkins,  J.,  without  a 
jury,  and  the  question  was  as  to  the  plaiiitill's  riglit  to  recover  from  the 
defendant  money  paid  in  discharge  of  bets.  The  plaintiff  was  a  turf 
commission  agent ;  tliat  is  to  say,  he  betted  for  other  persons.  The 
learned  judge  has  found  man}-  of  the  questions  in  dispute  as  questions 
©f  fact,  and  it  seems  to  have  been  thought  that  tlie  Court  of  Appeal 
cannot  dispute  his  findings  ;  but  the  Court  of  Appeal  is  not  bound  by 
the  findings  of  fact  b}-  a  judge  wlio  tries  a  case  without  a  jury.  As  to 
the  transaction  itself  between  the  plaintiff  and  the  defendant,  it  was  of 
a  well-known  description  :  the  defendant  did  not  bet  himself,  but  he 
hired  the  plaintiff  to  bet  for  him  ;  he  gave  to  the  plaintiff  authority  to  pa}' 
and  to  receive  money,  and  it  is  a  contract  between  principal  and  agent 
and  not  between  vendor  and  purchaser.  The  contract  determines  the 
kind  of  the  employment,  and  the  commission  is  payable  in  respect  of 
making  bets  and  not  of  paying  them.  One  ordinary  principle  of  the  law 
as  to  principal  and  agent  is  that  unless  a  principal  is  prevented  by  cer- 
tain circumstances,  the  nature  of  which  is  familiar  to  us,  he  can  revoke 
the  authority  of  the  agent.  In  the  present  case  the  defendant  had 
given  to  the  plaintiff  authority  to  paj'  and  receive  ;  but  he  revoked  the 
authorit}' before  payment :  can  the  agent  sue  the  principal?  The  real 
question  is  whether  the  defendant,  as  principal,  could  revoke  the 
authority'  given  to  the  plaintiff  as  agent.  The  evidence  given  before 
Hawkins,  J.,  proves  that  when  a  member  of  Tattersall's  makes  bets 
and  does  not  pa}'  them  if  lost,  he  is  liable  to  be  turned  out  of  the  room  ; 
and  if  he  is  turned  out,  he  cannot  carry  on  his  business  as  a  turf  com- 
mission agent.  The  question  is  whether  the  law  will  imply  an  under- 
taking by  the  defendant,  that  he  will  not  revoke  the  plaintiff's  authorit}' 
to  pay  bets  which  have  been  lost.  If  a  principal  employs  an  agent  to 
perform  an  act,  and  if  upon  revocation  of  the  authorit}'  the  agent  will  be 
by  law  exposed  to  loss  or  suffering,  the  authority  cannot  be  revoked. 
But  in  the  present  case  no  claim  could  be  lawfully  enforced  against  the 
agent.  It  is  true  that  the  betting  contract  was  made  b}'  the  plaintiff  in 
his  own  name  on  behalf  of  his  principal ;  nevertheless,  it  could  not  be 
enforced  against  him.  If  the  other  party  to  the  bet  had  lost  it,  and  had 
declined  to  pa}'  it,  he  could  not  have  been  compelled  to  do  so.  But  it 
has  been  contended  that  although  this  view  is  true,  the  law  puts  it  into 
the  plaintiflTs  power  to  enforce  payment  by  the  defendant  of  the  amount 
of  the  bet,  because  unless  it  is  paid  the  plaintiff  will  suffer  a  loss  in  his 
business  ;  but  the  plaintiff's  business,  although  it  may  not  be  illegal,  is 
directly  objected  ■  to  by  the  law,  and  the  contracts  made  by  him  in  his 
business  cannot  be  enforced  :  it  is  a  business  of  which  the  law  ought 
not  to  take  notice,  and  therefore  the  inconvenience  and  the  loss,  which 
the  plaintiff  may  suffer  in  his  objectionable  business,  form  no  ground 
for  an  action  for  revoking  an  authority  which  the  principal  ought  not  to 
have  given.  The  cases,  in  which  an  authority  cannot  be  revoked, 
ought  to  be  confined  to  those  cases  in  which  the  agent  will  upon  revo- 
cation suffer  what  the  law  deems  to  be  an  injury.  I  think  that  the 
judgment  of  Hawkins,  J.,  was  wrong. 


SECT.  I.]  READ    V.    ANDEKSON.  767 

BowEN,  L.  J.  I  regret  that  I  cannot  agree  with  the  Master  of  the 
Rolls,  and  that  1  cannot  take  the  same  view  of  this  case  as  he  does.  The 
plaintiff  was  a  turf  commission  agent,  and  the  defendant  was  a  licensed 
victualler  at  South  Shields.  Bets  were  made  by  the  plaintiff  at  the 
defendant's  request,  and  these  bets  were  lost.  The  plaintiff  made  the 
bets  in  his  own  name,  not  in  the  defendant's  ;  and  after  the  bets  had 
been  made  and  lost,  the  defendant  revoked  the  authority  to  pay  con- 
ferred upon  the  plaintiff.  Had  the  defendant  any  right  at  this  eleventh 
hour  to  revoke  and  retract  the  authority  given  to  the  plaintiff?  It  is 
true  that  this  is  a  transaction  between  a  principal  and  an  agent :  there 
is  a  delegation  of  power  to  the  agent :  there  is  a  mandate  to  the  agent ; 
and,  subject  to  certain  exceptions,  a  principal  it  is  said  may  revoke  a 
mandate  which  he  has  given.  But  there  is  something  in  this  transac- 
tion beyond  a  mere  mandate  given  or  power  delegated  to  an  agent. 
There  is  a  contract  of  employment  between  the  principal  and  the 
agent,  which  expressly  or  by  implication  regulates  their  relations  ;  and 
if  as  part  of  this  contract  tlie  principal  has  expressly  or  impliedly 
bargained  not  to  revoke  the  authority  and  to  indemnify  the  agent  for 
acting  in  the  ordinary  course  of  his  trade  and  business,  he  cannot  be 
allowed  to  break  his  contract.  What  was  the  contract  or  bargain? 
Was  the  original  contract  that  the  plaintiff  should  be  at  liberty  to  make 
bets  for  the  defendant,  and  should  be  liable  at  any  moment  to  have  the 
authority  conferred  upon  him  withdrawn?  Or  was  it  that  the  defend- 
ant employed  the  plaintiff  to  make  bets  and  undertook  to  indemnifj' 
him  against  payment  of  an}'  bets  which  he  should  make  on  the  defend- 
ant's behalf?  It  will  not  be  denied  that  if  a  principal  employs  an 
agent  to  do  something  which  b}'  law  involves  the  agent  in  a  legal 
liabilit}',  the  principal  cannot  draw  back  and  leave  the  agent  to  bear 
the  liability  at  his  own  expense.  That  is  not  the  case  here,  because 
the  payment  of  bets  cannot  be  enforced  by  law  ;  but  by  the  usage  of  his 
business  known  to  both  parties  at  the  time  of  the  emploj'ment,  and  with 
reference  to  which  usage  the  contract  of  employment  was  made,  the 
betting  agent  became  liable  as  a  matter  of  business  to  make  good  a 
lost  bet  at  the  risk  of  losing  his  character  and  customers  ;  and  in  the 
present  case  Hawkins,  J.,  has  found,  in  accordance  with  the  evidence, 
that  the  plaintiff  would  have  suffered  ver}'  serious  pecuniary  incon- 
venience if  he  had  failed  to  pa}'  the  bets  which  had  been  lost.  Was 
the  defendant  entitled  to  turn  round  and  tell  the  plaintiff  not  to  pay  the 
bets,  and  to  thus  put  him  into  the  position  of  being  expelled  from 
the  room  where  he  carries  on  his  business  ?  What  is  the  inference  of 
fact  to  be  drawn  as  to  the  true  bargain  between  them  ?  Can  it  be  said 
that  the  plaintiff  took  upon  himself  the  risk  of  embarking  upon  this 
perilous  adventure  without  such  an  indemnity?  As  an  inference  of 
fact,  it  seems  to  me  that  it  was  well  understood  to  be  part  of  the  bar- 
gain that  the  principal  should  recoup  his  agent,  and  should  not  revoke 
the  authority  to  pay,  but  should  indemnify  the  agent  against  all  pa}^- 
ments  made  in  the  regular  course  of  business.     I  feel  the  force  of  the 


768  READ   V.   ANDERSON.  [CHAP.  VI. 

point  that  the  obligation  to  pay  a  lost  bet  relied  upon  by  the  plaintiff  is 
not  recognized  by  law  ;  but  the  plaintitf  has  placed  himself  in  a  posi- 
tion of  pecuniary  ditRculty  at  the  defendant's  request,  who  impliedly 
contracted,  I  think,  to  indemnif}-  him  from  the  consequences  which 
would  ensue  in  the  ordinary  course  of  his  business  from  the  step  which 
be  had  taken.  There  is  a  great  deal  of  apparent  difficulty  in  this  case, 
because  the  action  relates  to  betting  and  wagering  ;  but  the  contract 
sued  on  by  the  plaintiff  is  not  a  wagering  contract.  I  feel  great  reluc- 
tance to  differ  from  the  Master  of  the  Rolls,  but  on  the  whole  I  am  of 
opinion  that  the  judgment  of  Hawkins,  J.,  was  right  and  ought  to  be 
affirmed. 

Fry,  L.  J.  In  this  case  I  agree  with  Bowen,  L.  J.  I  confine  myself 
to  expressing  my  concurrence  with  the  views  which  he  has  expressed  at 
length.     I  adopt  his  views  as  my  own.  Judgment  affirmed.^ 

1  See  Pidgeon  ■;;.  Burslem,  3  Exch.  465  (1849)  ;  Smith  v.  Lindo,  5  C.  B.  n.  s.  587 
(1858) ;  Thacker  v.  Hardy,  4  Q.  B.  D.  685  (C.  A.  1878) ;  Seymour  v.  Bridge,  14  Q.  B. 
D.  460  (1885) ;  Perry  v.  Barnett,  15  Q.  B.  D.  388  (C.  A.  1885). 

The  doctrine  of  the  principal  case  was  abrogated  by  the  Gaming  Act,  1892  (55  & 
56  Vict,  c  9).     See  Tatam  v.  Reeve,  [1893]  1  Q.  B.  (1892). 

In  Bibb  v.  Allen,  149  U.  S.  481,  497-499  (1893),  Jackson,  J.,  for  the  court  said: 
"  We  know  of  no  principle  on  which  the  agent  can  be  deprived  of  a  right  to  his  com- 
missions and  advances  in  the  execution  of  his  agency  for  a  principal  on  the  ground 
that  he  has  not  avoided  a  contract  which  was  not  in  strict  conformity  with  tlie  statute 
of  frauds,  in  the  absence  of  any  instruction  or  instructions  from  the  principal  not  to 
comply  therewith.  Contracts  not  in  conformity  with  the  statute  are  only  voidable  and 
not  illegal,  and  an  agent  may,  therefore,  execute  such  voidable  contracts  without  being 
chargeable  with  either  fraud,  misconduct,  or  disregard  of  the  principal's  rights.  If 
the  statute  of  frauds  was  not  complied  with  in  making  the  sale  contracts  in  the 
present  case,  we  do  not  see  that  the  defendant  was  in  a  position  to  take  advantage 
thereof,  or  that  such  want  of  compliance  with  the  statute,  after  the  contracts  were  ex- 
ecuted, would  constitute  any  defence  to  the  action.  The  suit  was  not  brought  on 
these  contracts  of  sale,  which  the  plaintiff  in  error  claims  were  voidable  under  the 
New  York  statute  of  frauds.  It  is  an  action  by  the  agents  against  their  principal  to 
recover  for  work  and  labor  performed,  and  money  paid  out  at  the  principal's  instance 
and  request,  and  in  the  settlement  of  the  principal's  business,  in  which  the  agent  had 
authority  to  make  disbursements  for  him.  In  the  present  case  the  plaintiffs  had,  by 
their  contract,  rendered  themselves  personally  responsible  for  the  losses  which  might, 
and  did,  occur  under  the  contracts  of  sale  made  for  account  of  the  defendant,  and  as 
such  agents  they  are  entitled  to  recover  against  their  principal  the  full  amount  ex- 
pended by  them' for  him  in  the  transactions.  If  in  closing  out  the  contracts  of  sale, 
profits  had  been  realized  on  the  transactions,  whether  by  reason  of  decline  in  the  price 
of  cotton,  or  by  the  purchases  '  to  cover '  the  cotton  sold,  the  brokers  would,  upon  well- 
settled  principles,  have  been  liable  to  their  principal  for  the  same.  They  could  not 
have  set  up  or  interposed  as  a  valid  defence  to  such  liability  that  the  contracts  of  sale 
out  of  which  the  profits  were  realized  were  not  enforceable  under  the  statute  of  frauds, 
or  were  voidable  by  the  agents  or  the  purchaser  with  whom  they  contracted.  Neither 
can  the  principal  interpose  such  an  objection  as  against  the  agent's  right  to  commission 
or  to  reimbursement  for  his  outlays,  after  the  execution  of  contracts,  merely  voidable 
for  want  of  writing.  Coward  v.  Clauton,  79  Cal.  23  ;  Morrill  v.  Colehour,  82  111.  618. 
It  is  a  well-established  principle,  which  pervades  the  whole  law  of  principal  and  agent, 
that  the  principal  is  bound  to  indemnify  the  agent  against  the  consequences  of  all  acts 
done  by  him  in  the  execution  of  his  agency,  or  in  pursuance  of  the  authority  conferred 
»pon  him,  when  the  actions  or  transactions  are  not  illegal.     Speaking  generally,  the 


SECT.  I.]  MOHR   V.    MIESEN.  769 


MOHR    ANT)    OTHERS    V.    MIESEN. 
Supreme  Court  of  Minnesota,     1891. 

[47  Minn.  228.] 

Appeal  by  defendant  from  an  order  of  the  district  court  for  Ram- 
sey County,  Otis,  J.,  presiding,  refusing  a  new  trial  after  a  verdict 
of  $2,005.78  for  plaintiffs.  The  jury  found  specially  that  "the 
arrangement  between  plaintiffs  and  defendant  with  reference  to  the 
transactions  in  controversy  contemplated  the  purchase  and  sale  of 
actual  grain  for  future  deliver}-,  and  did  not  contemplate  the  making 
of  gambling  contracts  only,"  and  also  that  "the  contracts  in  evidence 
were  made  by  and  between  the  plaintiffs  and  other  members  of  the 
Chamber  of  Commerce,  for  the  purchase  and  sale  of  grain  actually 
to  be  delivered  by  warehouse  receipts,  if  either  part}'  to  them  should 
require  it,  and  that  said  contracts  were  not  simph-  gambling  contracts." 

Jno.  IT.  Ives,  for  appellant. 

C.  IT.  Hamilton  and  Morris  <jb  WiJlinnis,  for  respondents. 

Vanderburgh,  J.  The  plaintiffs  sue  defendant  for  mone}'  paid  and 
expended  for  his  use  in  the  purchase  and  sale  of  grain.  The  answer 
sets  up  that  the  purchases  and  sales  referred  to  were  not  actual  or 
veritable  purchases  and  sales  of  grain,  but  were  merely  colorable,  and 
"  were  gambling  transactions,  whereby  the  plaintiffs  in  form  undertook 
to  buy  and  sell  on  the  Chicago  or  Milwaukee  boards  of  trade,  ostensibly 
for  future  deliveries,  but  without  any  intention  or  expectation  on  the 
part  of  the  plaintiffs  or  defendant  that  the  same  would  be  actually 
delivered,  large  quantities  of  wheat  and  barle}',  with  the  expectation 
and  intention  on  the  part  of  both  plaintiffs  and  defendant  of  wagering 
on  the  market  prices,  and  that  the  amounts  which  defendant  would  win 
or  lose  would  be  governed  by  and  determined  upon  the  fluctuations  in 
the  quotations  of  the  boards  of  trade."  The  record  shows  that  the 
plaintiffs  wei*e  members  of  the  Milwaukee  Chamber  of  Commerce,  and 
were  brokers  negotiating  purchases  and  sales  of  grain,  and  accustomed 
to  bu}-  upon  margins  under  the  rules  of  the  Chamber,  and  to  make 
advances  for  customers,  and  to  charge  commissions  for  their  services. 
The  defendant  during  the  time  of  the  transactions  in  controversy  was  a 
dealer  in  wines  and  liquors  in  the  cit}-  of  St.  Paul.  These  transactions 
opened  b}'  the  "receipt  b}'  plaintiffs  of  a  telegraphic  despatch  from  the 

agent  has  the  right  to  be  reimbursed  for  all  his  advances,  expenses  and  disbursements 
incurred  in  the  course  of  the  agency,  made  on  account  of  or  for  the  benefit  of  his  prin- 
cipal, when  such  advances,  expenses  and  disbursements  are  reasonable,  and  have  been 
properly  incurred  and  paid  without  misconduct  on  the  part  of  the  agent.  If,  in  obey- 
ing tha  instructions  or  orders  of  the  principal,  the  agent  does  acts  which  he  does  not 
know  at  the  time  to  be  illegal,  the  principal  is  bound  to  indemnify  him,  not  only  for 
expenses  incui'red,  but  also  for  damages  which  he  may  be  compelled  to  pay  to  third 
parties.  The  exception  to  this  rule  is  where  the  transaction  for  which  the  agent  is 
employed  is  illegal,  or  contrary  to  good  morals  and  public  policy."  —  Ed. 

49 


770  MOHR   V.    MIESEN.  [CHAP.  VI. 

defendant  on  November  11,  1886,  directing  them  to  "  sell  ten  thousand 
bushels  May  wheat."  On  the  following  day  the}-  accordingly  executed 
the  order.  February  10th  defendant  directed  the  plaintiffs  to  buy 
10,000  bushels  May  wheat,  which  order  was  in  like  manner  executed 
the  same  da}'.  This  closed  the  transaction,  so  far  as  the  defendant 
was  concerned.  The  two  contracts  were  adjusted  on  the  basis  of  the 
difference  in  prices  at  the  dates  specified,  and  a  statement  showing  the 
difference  sent  to  defendant ;  that  is  to  say,  the  two  contracts  were 
adjusted  on  the  basis  of  such  difference  in  prices,  without  waiting  for 
their  literal  fulfilment,  and  without  any  actual  delivery  of  wheat.  A 
large  number  of  other  similar  purchases  and  sales  of  wheat  and  barley, 
amounting  to  hundreds  of  thousands  of  bushels,  were  made  by  plaintiffs 
for  defendant,  and  disposed  of  in  like  manner,  during  the  year  1887. 
Some  of  the  "deals"  were  closed  with  a  profit,  others  with  a  loss,  to 
defendant,  which  was  charged  up  to  him  by  the  plaintiffs.  During  this 
time  the  defendant  paid  out  no  money  for  grain  whatever,  but  at 
plaintiffs'  instance,  to  cover  margins  for  which  advances  had  been 
made  by  them  on  a  falling  market,  he  had  paid  them  between  the  10th 
day  of  November,  1886,  and  the  1st  day  of  January,  1888,  the 
sum  of  $2,462.50,  leaving  due  them,  as  they  claim,  the  amount  de- 
manded in  this  action.  The  last  transactions,  as  per  statement  sent 
to  defendant  by  plaintiffs,  were  the  reported  sale  of  10,000  bushels 
February  barley,  December  30,  1887,  and  purchase  of  10,000  bushels 
February  barley,  January  3,  1888,  difference  (loss)  reported  January 
4,  1888,  at  $275.^  .  .  . 

It  becomes  material,  therefore,  to  inquire  into  the  intention  of  the 
parties  in  entering  into  contracts  purporting  to  be  for  the  future 
delivery  of  commodities,  and  the  plaintiffs  must  be  shown  to  be  m 
pari  delicto  to  defeat  a  recovery  in  this  action.^  .  .  . 

The  testimony  of  the  defendant,  which  is  undisputed,  sho\75  or  tends 
to  show  that  he  did  not  intend  to  make  actual  botia  fide  purchases 
and  sales  of  grain,  but  intended  to  "deal  in  futures"  solely,  and  the 
manner  in  which  the  business  was  conducted  and  the  several  "deals" 
closed  and  adjusted  by  the  plaintiffs  is  consistent  with  this  theory,  and 
tends  to  support  it;  and,  while  this  circumstance  might  not  alone  be 
sufficient  to  establish  the  fact  that  plaintiffs,  or  the  third  parties  with 
whom  they  dealt  in  executing  the  orders  of  the  defendant,  had  notice 
that  defendant's  object  was  not  to  buy  and  sell  grain,  but  to  speculate 
in  the  price  of  grain  merely,  yet  the  manner  in  which  the  business 
involving  these  transactions  was  conducted  was  certainly  an  element  to 
be  considered  with  other  circumstances  in  determining  the  question  of 

1  Here  followed  a  passage  explaining  what  contracts  for  future  delivery  are  wagers, 
and  citing  22  Am.  L.  Reg.  613,  n. ;  Rumsey  v.  Berry,  65  Me.  570;  Kirkpatrick  v. 
Bonsall,  72  Pa.  155.— Ed. 

2  Here  followed  a  passage  to  the  effect  that  the  burden  of  establishing  illegality 
rests  upon  the  party  who  asserts  it,  disapproving  Barnard  v.  Backhaus,  52  Wis.  593, 
600,  and  approving  Crawford  v.  Spencer,  92  Mo.  498.  — Ed. 


SECT.  I.]  MOHR   V.    MIESEN.  771 

their  good  faith.  Hill  v.  Johnson,  38  Mo.  A  pp.  383 ;  Crawford  v. 
Spencer,  92  Mo.  498,  (4  S.  W.  Rep.  713).  It  is  not  necessary  to  prove 
that  plaintiffs  had  express  notice  of  defendant's  purpose.  The  under- 
standing between  the  parties  ma}'  be  gathered  from  the  facts  and 
attending  circumstances.  This  is  well  settled,  and  upon  this  point 
evidence  of  the  defendant's  occupation,  residence,  financial  abilit}- ;  that 
he  never  delivered  or  received  or  proposed  to  deliver  or  receive  any 
grain  ;  that  he  was  not  a  dealer ;  and  that  the  orders  to  purchase  were 
made  without  reference  to  or  far  in  excess  of  his  ability  to  pa}-  for,  with 
other  facts  of  like  character,  was  competent-  Cobb  v.  Prell,  5  Mc- 
Crary,  85  (15  Fed.  Rep.  774)  ;  Carroll  v.  Holmes,  24  111.  App.  453, 
458,  459  ;  In  re  Green,  7  Biss.  338,  344  ;  Crawford  v.  Spencer,  supra; 
Lowry  v.  Dillman,  59  Wis.  197  (18  N.  W.  Rep.  4)  ;  Sprague  v.  War- 
ner (Neb.),  41  N.  W.  Rep.  1115;  Watte  v.  Wickushun,  27  Neb.  457 
(43  N.  W.  Rep.  259) ;  Williams  v.  Tiedmann,  6  Mo.  App.  269,  276 ; 
Hill  r.  Johnson,  38  Mo.  App.  383,  392.  The  plaintiffs  concede  that  it 
was  apparent  from  his  correspondence  that  the  defendant's  transaction 
were  mostly  for  speculative  purposes.  They  knew  he  was  in  the  saloon 
business,  and  not  in  the  grain  business.  The  jury  might  find  from  the 
facts  disclosed  by  the  evidence  that  the  plaintiffs  knew  that  he  had  not 
the  means  to  buy  grain  with,  and  did  not  desire  or  need  it,  but  was 
operating  for  the  differences  only. 

The  statutes  of  Wisconsin,  where  the  business  was  done,  were  not 
introduced  in  evidence.  The  rights  of  the  parties  will  therefore  be  de- 
termined by  the  rules  of  the  common  law,  as  generally  accepted  and 
applied  in  this  country.  Harvev  r.  Merrill,  150  Mass.  1  (22  N.  E. 
Rep.  49).  And  it  is  generally  held  as  the  common-law  doctrine  that 
all  wagering  contracts  are  illegal  and  void  as  against  public  pohcy. 
Irwin  V.  Williar,  110  U.  S.  499,  510  (4  Sup.  Ct.  Rep.  166)  ;  Harvey  v. 
Merrill,  supra.  No  cause  of  action  arises  in  favor  of  a  part}-  to  an 
illegal  transaction  ;  nor  will  the  law  lend  its  aid  to  enforce  any  contract 
which  is  in  conflict  with  the  terms  of  a  statute,  or  sound  public  polic}' 
or  good  morals.  In  re  Green,  7  Biss.  338  ;  Armstrong  v.  Toler,  1 1 
Wheat.  258 ;  Ruckman  r.  Bryan,  3  Denio,  340.  And  there  is  no 
reason  why  a  broker  or  commission  merchant  should  be  favored  or 
exempted  from  consequences  resulting  to  other  parties  who  aid  or 
assist  in  unlawful  transactions.  Barnard  v.  Backhaus,  supra.  It  was 
through  the  agency  of  the  plaintiffs  that  the  defendant  was  attempting 
to  carry  on  an  unlawful  business.  They  executed  his  orders,  advanced 
money  for  margins,  and  settled  the  differences.  The  contracts  were 
all  made  in  their  names,  and  he  was  not  known  in  the  transactions  with 
third  parties,  and  they  were  personally  responsible  to  the  persons  with 
whom  they  dealt  in  making  the  purchases  and  sales  in  question.  Under 
such  circumstances  it  would,  of  course,  be  difHcult  to  ascertain  whether 
tlie  latter  had  notice  of  the  nature  of  the  agreement  or  understanding 
existing  between  the  parties  to  tliis  action  ;  but  it  was  clearly  important 
and  material  to  show  that  the  plaintiffs  were  cognizant  of  defendant's 


772  MOHE   V.    MIESEN.  [CIIAI'.  VI. 

illegal  purposes,  and  were  engaged  in  promoting  them  ;  and,  if  they 
were,  the  court  will  not  aid  them  to  recover  moneys  advanced  in 
furtherance  of  such  schemes.  The  plaintiffs,  as  brokers  or  commission 
merchants,  might  well  decline  to  aid  in  transactions  of  that  character  ; 
and,  if  the}-  would  do  so,  a  great  deal  of  that  kind  of  gambling  would 
cease,  as,  in  the  majority'  of  cases,  the  ventures  could  not  he  made  with- 
out their  financial  assistance.  As  between  them  and  their  customers  the 
same  strict  rule  should  be  applied  as  in  other  cases.  Carroll  ".  Holmes, 
24  111.  App.  453,  460  ;  Hill  v.  Johnson,  38  Mo.  App.  383  ;  Tied.  Sales, 
p.  490,  §  302. 

The  plaintiffs'  counsel,  however,  concedes  in  his  brief  in  this  court 
that  if,  by  the  arrangement  between  the  parties  to  this  suit,  they  were 
to  undertake  gambling  transactions,  then  the  intent  of  third  parties 
was  not  material.  But  the  defendant's  counsel  insists  that  the  charge 
of  the  court  on  this  subject,  including  the  instructions  asked  by  plain- 
tiffs, would  warrant  the  jur}'  to  infer  that  it  was  necessary'  for  the 
defendant  to  make  it  appear  that  the  parties  with  whom  plaintiffs  dealt 
were  also  in  pari  delicto.  Upon  this  point  the  charge,  taken  as  a 
whole,  is  perhaps  not  entirely'  clear ;  but  we  think  if  there  was  any 
ambiguity  or  uncertainty  in  the  charge  on  the  question,  the  defendant 
should  have  asked  more  specific  instructions. 

It  is  also  assigned  as  error  that  the  court  erred  in  refusing  defendant's 
second  request  to  charge,  which  was  in  substance  that,  in  order  to 
prove  notice  or  knowledge  on  the  part  of  the  plaintiffs  of  the  designs 
and  intentions  of  the  defendant,  it  is  not  necessary  that  defendant  should 
have  written  or  said  to  any  of  the  plaintifl's  that  such  was  his  design  ; 
but  the  jur}'  were  to  determine  the  understanding  of  the  parties  from  all 
the  circumstances  connected  with  the  transactions  between  them,  and 
that  upon  this  question  they  were  "  entitled  to  consider  the  fact  that  at 
the  time  the  plaintiffs  sold  the  barley  for  the  defendant  in  October, 
November,  and  December,  1887,  one  of  the  plaintifl!s  stated  that  he  had 
no  reason  to  believe  that  the  defendant  had  the  barley  at  the  time  of 
such  sales ;  and  the  further  fact  that  during  a  part,  at  least,  of 
the  time  of  such  transactions,  the  defendant  was  behind  with  his 
margin,  and  was  being  pressed  by  plaintiffs  for  money  to  make  the 
margins  good ;  and  that  plaintiffs  immediately  after  closed  these  deals 
as  well  as  all  prior  deals,  considered  the  transaction  at  an  end  so  far  as 
defendant  was  concerned,  and,  instead  of  charging  him  with  the  purchase 
of  any  wheat,  sent  him  statements  charging  him  with,  or  crediting  him 
with,  as  the  case  might  be,  the  difference  between  the  purchase  and  the 
selling  price."  These  instructions  were  not  covered  by  the  general 
charge,  and  we  think  should  have  been  given.  Some  of  the  evidence  was 
perhaps  of  slight  importance  ;  but  we  think,  with  other  facts  and  circum- 
stances in  the  case,  it  was  all  proper  to  be  considered  by  the  jur}-  in 
determining  the  knowledge  of  the  plaintiffs  and  the  real  nature  of  the  ar- 
rangement between  the  parties  ;  and  without  such  instructions  the  jury 
were  in  danger  of  being  led  to  believe,  as  the  court  subsequently  stated. 


SECT.  II.J  PRIESTLEY   V.   FOWLER.  773 

that   there  must  be   an   express  agreement,  and  that  a  mere   under- 
standing between  the  parties  was  not  sufficient. 

We  think  evidence  of  the  general  character  of  transactions  in  the 
chamber  between  other  dealers  was  properl}'  rejected  ;  but  for  the  error 
above  referred  to  there  should  be  a  new  trial. 

Order  reversed} 


SECTION  II. 

Responsibility  for  Injuries. 

{A)  The  Fellow-Servant  Rulb 

PRIESTLEY  V.  FOWLER. 

Exchequer.     1837. 

[3  M.  ^'  W.  1.] 

Case.  The  declaration  stated  that  the  plaintiff  was  a  servant  of  the 
defendant  in  his  trade  of  a  butcher  ;  that  the  defendant  had  desired  and 
directed  the  plaintiff,  so  being  his  servant,  to  go  with  and  take  certain 
goods  of  the  defendant's,  in  a  certain  van  of  the  defendant  then  used 
by  him,  and  conducted  by  another  of  his  servants,  in  carrying  goods 
for  hire  upon  a  certain  journey  ;  that  the  plaintiff,  in  pursuance  of  such 
desire  and  direction,  accordingly  commenced  and  was  proceeding  and 
being  carried  and  conveyed  by  the  said  van,  with  the  said  goods  ;  and 
it  became  the  duty  of  the  defendant,  on  that  occasion,  to  use  due 
and  proper  care  that  the  said  van  should  be  in  a  proper  state  of  repair, 
that  it  should  not  be  overloaded,  and  that  the  plaintiff  should  be  safel}' 
and  securely  carried  thereb}* :  nevertheless,  the  defendant  did  not  use 
proper  care  that  the  van  should  be  in  a  sufficient  state  of  repair,  or  that 
it  should  not  be  overloaded,  or  that  the  plaintiff  should  be  safel3'  and 
secureh'  carried  thereby,  in  consequence  of  the  neglect  of  all  and  each 
of  which  duties  the  van  gave  wa}-  and  broke  down,  and  the  plaintiff 
■was  thrown  with  violence  to  the  ground,  and  his  thigh  was  thereby 
fractured,  &c.     Plea,  not  guilt}-. 

At  the  trial  before  Park,  J.,  at  the  Lincolnshire  Summer  Assizes, 
1836,  the  plaintiff,  having  given  evidence  to  show  that  the  injur}'  arose 
from  the  overloading  of  the  van,  and  that  it  was  so  loaded  with  the 
defendant's  knowledge,  had  a  verdict  for  £100.  In  the  following 
Michaelmas  Term,  Adams,  Serjt.,  obtained  a  rule  to  show  cause  wh}' 
the  judgment  should  not  be  arrested,  on  the  ground  that  the  defendant 

1  See  Irwin  v.  Williar,  110  U.  S.  499,  509-510  (1884) ;  Harvey  v.  Merrill,  150  Masa 
1,  11  (1889),  s.  c.  Wambaugh'a  Cases  for  Analysis,  167;  Barnes  v.  Smith,  159  Mass 
344  (1893).  — Ed. 


774  PRIESTLEY   V.   FOWLER.  [CHAP.  VL 

was  not  liable  in  law,  under  the  circumstances  stated  in  the  declaration. 
In  Hilary  Term, 

Goulburn^  Serjt.,  and  N".  li.  Clarke^  showed  cause.  The  declara- 
tion is  sufficient,  at  least  after  verdict.  One  objection  will  probably  be, 
that  it  does  not  state  that  the  plaintiff  was  to  be  conve^-ed  in  the  van, 
but  only  that  he  was  to  go  with  and  take  the  goods  b}'  the  van.  But, 
taking  all  the  allegations  together,  the  statement  is  sufficient  after 
verdict.  It  is  stated  that  the  plaintiff  was  on  the  van  in  pursuance  of 
the  defendant's  directions.  [The  court  intimated  that  the  declaration 
was  sufficient  as  to  this  point.] 

Secondl}',  the  action  is  maintainable  on  general  principles  of  law. 
There  is  no  valid  distinction  between  this  case  and  that  of  an  ordinary 
coach  passenger ;  the  service  of  the  servant  is  the  consideration  here, 
as  the  money  of  tlie  passenger  is  there.  [Lord  Abinger,  C.  B.  The 
passenger  pays  his  money  in  consideration  of  being  carried,  and  there 
is  an  implied  contract  that  he  sliall  be  carried  safely  :  and  he  has  no 
means  of  knowing  how  tlie  coach  is  constructed  or  loaded.  Here  the 
servant  is  on  the  premises,  and  has  the  means  of  knowledge.  It  is  not 
the  case  of  a  servant  hired  for  that  particular  occasion,  but  of  a  general 
servant.]  It  does  not  appear  on  tlie  face  of  the  declaration,  that  the 
plaintiff  knew  the  van  was  overloaded,  and  it  cannot  be  intended  after 
verdict :  on  the  other  hand,  it  does  appear  that  the  defendant  knew 
it.  The  question  therefore  is,  whether  a  master  who  directs  a  servant 
to  get  upon  an  overloaded  vehicle,  the  servant  giving  his  service  for 
taking  care  of  the  master's  goods  carried  therein,  is  not  liable  if  the 
servant  sustains  an  injury  b}'  its  breaking  down  in  consequence  of  such 
overloading.  It  is  not  merely  the  omission  of  not  using  a  sufficient 
vehicle,  but  an  act  of  commission  in  allowing  it  to  be  overloaded. 
Suppose  a  coach  passenger  saw,  when  be  got  up,  that  the  coachman 
was  intoxicated  or  the  horses  unruly,  would  his  right  to  recover  for 
an  injur}' in  consequence  be  affected?  [Parke,  B.  I  apprehend  the 
contract  would  onl}-  be  to  carr}-  as  safely  as  could  be,  in  the  condition 
in  which  the  passenger  knew  the  vehicle  to  be.  Lord  Abinger,  C.  B. 
Could  a  stage-coachman,  who  has  a  restive  horse  to  drive,  which  he 
knows  to  be  so,  sue  his  master  for  an  injmy  done  him  bj^  the  horse? 
The  plaintiff  was  not  bound  to  go  by  an  overloaded  van ;  he  consents 
to  take  the  risk.  If  it  had  appeared  that  the  master  undertook  that 
the  van  was  sufficient,  it  would  be  different.]  It  might  have  been 
more  proper  to  allege  that  the  defendant  so  undertook,  but  the  decla- 
ration is  in  substance  equivalent  to  that,  at  least  after  vei-dict,  since 
it  states  that  it  was  the  defendant's  dut}-  to  use  proper  care  that 
the  van  should  not  be  overloaded.  The  promise  and  the  duty  are 
co-extensive. 

Adams,  Serjt.,  contra.  The  cause  of  action,  supposing  that  any 
exists,  arises  out  of  an  implied  contract  on  the  part  of  the  master  so 
to  load  the  van  as  that  the  plaintiff  should  be  carried  safelj' ;  but  he 
cannot  be  made  liable  in  this  action  on  the  case  except  there  be  h 


SECT-  II.  I  PRIESTLEY   V.    FOWLER.  775 

common-law  liability  such  as  to  raise  a  dut}'.  To  found  any  action 
against  the  defendant,  several  circumstances  must  combine.  First,  it 
must  appear  that  the  carriage  was  overloaded  by  the  defendant's  direc- 
tion or  with  his  knowledge ;  and  this  it  may  be  admitted  the  declaration 
does  disclose.  Secondly,  it  ought  to  appear  that  the  plaintiff  was  igno- 
rant of  the  overloading,  which  is  nowhere  suggested.  Thirdly,  the 
defendant  must  have  ordered  the  plaintiff  to  go  on  the  van.  There  is 
no  clear  averment  that  that  was  the  fact;  the  '"  desire  and  direction" 
of  the  defendant,  in  pursuance  of  which  the  plaintiif  alleges  that  he  went 
on  the  van,  is  only  to  go  with  it  and  take  care  of  the  goods.  [Lord 
Abinger,  C.  B.  That  is  an  ambiguous  expression  ;  the  plaintiff  inter- 
prets the  ambiguity  to  mean  that  he  was  to  go  in  the  van ;  and  we 
may  so  interpret  it  after  verdict.]  But  further,  it  ought  to  be  shown 
that  it  was  necessary  for  the  plaintiff  to  do  so  in  order  to  perform  his 
duty,  and  (which  is  perhaps  the  same  proposition  in  more  general 
terms)  that  the  order  was  a  lawful  command,  which  he  was  bound  as 
a  servan.t  to  obe}'.  The  mere  command  of  the  master  will  not  render 
him  liable,  unless  the  thing  commanded  fell  fairh'  within  the  necessity 
of  the  servant's  dut}'.  There  ought  to  have  been  an  averment  that  it 
was  necessary  for  the  performance  of  his  duty  of  conveying  the  goods 
that  he  should  go  in  the  van.  But  even  if  all  these  circumstances 
concurred,  they  would  not  constitute  a  common-law  liability,  but  a 
liability  arising  out  of  a  contract,  and  the  action  should  have  been 
assumpsit,  not  case.  To  render  the  defendant  liable  in  case,  the 
existence  of  malice,  express  or  implied,  was  necessary. 

Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  b}' 

Lord  Abixger,  C.  B.  This  was  a  motion  in  arrest  of  judgment, 
after  verdict  for  the  plaintiff,  upon  the  insufficienc}'  of  the  declaration. 
[His  lordship  stated  the  declaration.]  It  has  been  objected  to  this  decla- 
ration, that  it  contains  no  premises  from  which  the  duty  of  the  defend- 
ant, as  therein  alleged,  can  be  inferred  in  law  ;  or,  in  other  words,  that 
from  the  mere  relation  of  master  and  servant  no  contract,  and  therefore 
no  dut3',  can  be  implied  on  the  part  of  the  master  to  cause  the  servant 
to  be  safely  and  securely  carried,  or  to  make  the  master  liable  for 
damage  to  the  servant  arising  from  an\'  vice  or  imperfection,  unknown 
to  the  master,  in  the  carriage,  or  in  the  mode  of  loading  and  conducting 
it.  For,  as  the  declaration  contains  no  charge  that  the  defendant  knew 
any  of  the  defects  mentioned,  the  court  is  not  called  upon  to  decide 
how  far  such  knowledge  on  his  part  of  a  defect  unknown  to  the  servant, 
would  make  him  liable. 

It  is  admitted  that  there  is  no  precedent  for  the  present  action  by  a 
servant  against  a  master.  We  are  therefore  to  decide  the  question 
upon  general  principles,  and  in  doing  so  we  are  at  libert}'  to  look  at 
the  consequences  of  a  decision  the  one  wa}'  or  the  other. 

If  the  master  be  liable  to  the  servant  in  this  action,  the  principle  of 
that  liability  will  l)e  found  to  carry  us  to  an  alarming  extent.  He  who 
is  responsible  by  his  general  duty,  or  by  the  terms  of  his  contract.  A>r 


776  PKIESTLEY   V.   FOWLER.  [CHAP.  VI. 

all  the  consequences  of  negligence  in  a  matter  in  which  he  is  the  prin- 
cipal, is  responsible  for  tlie  negligence  of  all  his  inferior  agents.  If  the 
owner  of  the  carriage  is  therefore  responsible  for  the  sufficiency  of  his 
carriage  to  his  servant,  he  is  responsible  for  the  negligence  of  his 
coacli-niaker,  or  his  harness-maker,  or  his  coachman.  Tlie  footman, 
therefore,  who  rides  heliind  the  carriage,  may  have  an  action  against 
his  master  for  a  defect  in  the  carriage  owing  to  the  negligence  of  the 
coach-maker,  or  for  a  defect  in  the  harness  arising  from  the  negligence 
of  the  harness-maker,  or  for  drunkenness,  neglect,  or  want  of  skill  in 
the  coachman  ;  nor  is  there  an}'  reason  why  the  principle  should  not,  if 
applicable  in  this  class  of  cases,  extend  to  many  others.  The  master, 
for  example,  would  be  liable  to  the  servant  for  the  negligence  of  the 
chambermaid,  for  putting  him  into  a  damp  bed;  for  that  of  the  uphol- 
sterer for  sending  in  a  craz}'  bedstead,  whereby  he  was  made  to  fall 
down  while  asleep  and  injure  himself;  for  the  negligence  of  the  cook, 
in  not  properly  cleaning  the  copper  vessels  used  in  the  kitchen  ;  of  the 
butcher,  in  supplying  the  famil}'  with  meat  of  a  quality  injurious  to  the 
health ;  of  the  builder,  for  a  defect  in  the  foundation  of  the  house, 
where!)}-  it  fell,  and  injured  both  the  master  and  the  servant  b}'  the 
ruins. 

The  inconvenience,  not  to  sa}'  the  absurdity  of  these  consequences, 
affords  a  sufficient  argument  against  the  application  of  this  prin- 
ciple to  the  present  case.  But,  in  truth,  the  mere  relation  of  the 
master  and  the  servant  never  can  imply  an  obligation  on  the  part  of 
the  master  to  take  more  care  of  the  servant  than  he  ma}-  reasonably  be 
expected  to  do  of  himself.  He  is,  no  doubt,  bound  to  provide  for  the 
safety  of  his  servant  in  the  course  of  his  employment,  to  the  best  of 
his  judgment,  information,  and  belief.  The  servant  is  not  bound  to 
risk  his  safety  in  the  service  of  his  master,  and  may,  if  he  thinks  fit, 
decline  any  service  in  which  he  reasonably  apprehends  injury  to  him- 
self:  and  in  most  of  the  cases  in  which  danger  may  be  incurred,  if  not 
in  all,  he  is  just  as  likely  to  be  acquainted  with  the  probability  and 
extent  of  it  as  the  master.  In  that  sort  of  employment,  especially,  which 
is  described  in  the  declaration  in  this  case,  the  plaintiff  must  have 
known  as  well  as  his  master,  and  probably  better,  whether  the  van  was 
sufficient,  whether  it  was  overloaded,  and  whether  it  was  likely  to  carry 
him  safely.  In  fact,  to  allow  this  sort  of  action  to  prevail  would  be  an 
encouragement  to  the  servant  to  omit  that  diligence  and  caution  which 
he  is  in  duty  bound  to  exercise  on  the  behalf  of  his  master,  to  protect 
him  against  the  misconduct  or  negligence  of  others  who  serve  him,  and 
which  diligence  and  caution,  while  they  protect  the  master,  are  a  much 
better  securit}-  against  any  injury  the  servant  may  sustain  by  the  negli- 
gence of  others  engaged  under  the  same  master,  than  any  recourse 
against  his  master  for  damages  could  possibly  afford. 

We  are  therefore  of  opinion  that  the  judgment  ought  to  be  arrested. 

Rule  absolute.^ 

»  See  the  comment  in  Fifield  v.  Northern  Railroad,  42  N.  H.  225,  241  (1860).  —  Ed. 


SECT.  II.]         MURRAY   V.    SOUTH   CAROLINA    RAILROAD    CO.  777 


MURRAY  V.  SOUTH  CAROLINA  RAILROAD  COMPANY. 

Court  of  Ekuors  of  South  Carolina.     184L 

[I  McMullan's  Law,  385.] 

Before  O'Neall,  J.,  Charleston,  July  extra  term,  1838. 

This  was  an  action  on  the  ease,  against  the  defendants,  for  an  injury 
sustained  in  their  service.^ 

The  plaintiff  was  a  second  fireman  employed  by  the  defendants. 
He  selected  the  engineer  under  whom  he  was  to  serve.  Upon  the 
plaintiff's  second  or  third  trip  the  engine  ran  over  a  horse,  and  was 
thrown  from  the  track.  As  a  consequence,  the  plaintiffs  leg  was 
crushed  between  the  engine  and  the  tender.  There  was  evidence  tend- 
ing to  show  that  the  accident  resulted  from  the  carelessness  of  the 
engineer  in  not  stopping  llie  engine  as  soon  as  cautioned  by  the  plain- 
tiff and  the  other  fireman.  The  engineer  was  skilful  and  sufficiently 
experienced. 

The  jury  were  instructed  that  the  plaintiffs  service  subjected  him  to 
all  the  ordinary  risks  and  perils  of  the  employment.  Each  ofl3cer  of 
the  company,  as  to  strangers  and  inferiors,  was  to  be  considered  as  the 
company  ;  and  every  command  or  act  given  or  done  by  him  must  be 
regarded  as  given  or  done  by  the  company  themselves.  If  a  superior 
officer  had  given  an  order  to  an  inferior  to  do  an  act  not  necessar}'  to 
be  done,  and  not  within  the  duty  of  the  inferior,  and  in  doing  it  injury 
resulted  to  the  inferior,  then  the  compan}-  would  be  responsible.  If,  in 
running  the  road,  a  superior  oflScer  (the  engineer)  did  his  duty  so  care- 
lessly as  to  subject  a  servant  of  the  company  to  unnecessary  danger, 
and  which  the  servant  could  not  avoid,  then  the  company  would  be 
liable.  But  if  the  peril  from  which  the  injury  resulted  was  unavoid- 
able, or  if  the  engineer  did  everything  ordinary  prudence  suggested  to 
avoid  it,  and,  notwithstanding,  a  servant  sustained  injur}',  it  would  be 
one  of  the  risks  to  which  his  contract  of  service  subjected  him,  and 
he  could  not  recover.  So,  too,  if  the  servant  (the  second  fireman)  did 
not  do  his  duty,  and  to  its  neglect  (as  not  letting  down  the  brake)  the 
injury  might  be  fairl}'  ascribed,  then,  in  that  case,  his  injury  would 
be  attributable  to  himself,  and  he  could  have  no  redress  against  the 
company. 

The  jury  found  for  the  plaintiff. 

The  defendants  appeal  on  the  annexed  grounds:  — 

1.  Because  the  plaintiff,  being  a  fireman  actually  employed  on  the 
car  to  which  the  accident  occurred,  cannot  recover  against  the  com- 
pany in  whose  service  he  was. 

2.  Because  the  ordinary  risks  of  the  occupation  of  the  plaintiff  are 

^  The  reporter's  statement  of  the  evidence  has  been  condensed.  —  Ed. 


778  MURRAY   V.    SOUTH    CAROLINA   RAILROAD    CO.        |_CHAP.  VL 

to  be  sustained  by  himself,  and  tlie  accident  was  the  result  of  such 
risks. 

3.  Because  the  plaintiff  himself  was  parti}-  in  charge  of  the  car  to 
which  the  accident  occurred,  and  might  have  prevented  it  himself  by 
the  timely  discharge  of  his  own  duty.^  .  .  . 

Jihinding^  for  the  appellants. 

Cttrla,  2>ei'  P^vans,  J.  In  the  consideration  of  the  question  involved 
in  this  case,  I  shall  assume  that  the  verdict  establishes  the  fact  that 
the  plaintiff's  injury  was  the  effect  of  the  negligence  of  the  engineer, 
and  then  the  question  arises  whether  the  railroad  company  is  liable  to 
one  servant  for  an  injury  arising  from  the  negligence  of  another  ser- 
vant. The  business  of  the  company  is  the  transportation  of  goods 
and  passengers.  Its  liability  in  these  respects  is,  in  general,  well 
defined  and  understood  b}'  the  profession  ;  and  if  the  plaintiff's  case 
came  within  an}'  of  the  principles  applicable  to  these  cases,  we  should 
have  no  difficulty  in  deciding  it.  The  application  of  steam  power  to 
transi^ortation  on  railroads  is  of  recent  origin,  but  the  principle  by 
which  the  liability  of  a  carrier  is  fixed  and  ascertained  is  as  old  as  the 
law  itself.  There  is  nothing  in  the  fact  that  the  defendant  is  a  cor- 
poration, except  that  of  necessity  it  must  act  altogether  b}-  agents. 
The  liability  is  precisely  the  same  as  if  the  defendant  was  an  indi- 
vidual acting  by  the  agenc}-  of  others.  The  principle  is  the  same, 
whether  you  appl}-  it  to  a  railroad,  a  steamboat,  a  wagon,  a  stage- 
coach, or  a  ship.  If  this  plaintiff  is  entitled  to  recover,  I  can  see  no 
reason  why  the  owner  of  any  of  the  above  modes  of  conve3-ance 
should  not  be  liable  under  the  same  circumstances.  If  the  owner  of  a 
wagon  should  employ  two  men,  one  to  drive  and  the  other  to  load,  and 
either  of  them  should  so  negligently  perform  his  vs^ork  as  to  injure  the 
other,  the  owner  of  the  wagon  would  be  liable.  The  principle  will 
extend  to  all  the  vocations  of  life  wherein  more  than  one  person  is 
employed  to  effect  a  single  object ;  and  a  new  class  of  liabilities  would 
arise  which  I  do  not  think  has  ever  heretofore  been  supposed  to 
exist.  It  is  admitted,  no  case  like  the  present  has  been  found,  nor  is 
there  any  precedent  suited  to  the  plaintiff's  case  unless  he  stands  in 
the  relation  of  a  passenger  to  the  compan}-.  In  this  point  of  view  his 
counsel  has  chosen  to  regard  him,  for  I  understand  the  declaration 
alleges  he  was  a  passenger.  Now,  a  passenger  is  everywhere  spoken 
of  as  one  who  pa^'s  for  transportation.  In  all  the  operations  neces- 
sary for  this  he  is  passive.  The  moment  he  becomes  an  operator,  for 
then  his  character  is  changed,  he  becomes  the  servant  of  the  company, 
and  not  its  passenger.  It  w^ould  be  a  confusion  of  terms  so  to  regard 
him.  He  is  no  more  a  passenger  than  a  sailor  or  a  stage-driver.  There 
is  nothing  in  the  definition  of  bailment,  or  the  classification  of  the  differ- 
ent kinds  of  liability  growing  out  of  that  relation,  which  applies  to  the 
plaintiffs  case,  and  if  he  is  entitled  to  recover,  it  must  be  on  principles 
whic'li  apply  equally  to  all  operations  of  life  in  which  agents  are 
employed. 

^  The  other  grounds  of  appeal  were  disregarded  by  the  Court  of  Errors.  —  Ed. 


SECT.  II.]         MURRAY   V.    SOUTH   CAROLINA   RAILROAD   CO.  779 

There  is  no  question  that,  in  general,  the  principal  is  liable  for  the 
acts  of  the  agent  performed  in  the  execution  of  his  agency,  or  in  and 
about  the  business  of  his  principal.  Thus,  the  owners  of  a  railroad 
would  be  liable  to  passengers  for  an  injury  sustained  by  the  negligence 
of  any  of  its  servants,  superior  or  subordinate,  because  it  is  implied  in 
the  undertaking  to  carry,  not  onl}'  that  the  road  and  cars  are  good,  but 
that  the  servants  employed  are  competent  and  will  perform  their  dut}'. 
For  the  loss  of  goods  the  law  annexes  a  still  greater  responsibility. 
So,  also,  if  one  employ  an  agent  to  execute  any  work  whereby  an 
Injury  ma}'  result  to  a  sti'anger,  the  law  requires  it  to  be  done  with 
care,  and  if  a  stranger  sustain  an  injury,  his  principal  is  liable,  as  was 
decided  in  O'Connell  v.  Strong,  Dud.  265.  But  the  plaintiff  is  neither 
a  passenger  nor  a  stranger,  and  if  he  can  recover,  it  must  be  in  his 
hermaphrodite  character  as  a  passenger-fireman.  In  the  cases  above 
enumerated,  the  principal  is  represented  b}-  the  agent,  and  unless  he 
be  liable,  the  great  operations  of  life  cannot  be  carried  on,  —  no  man 
would  have  adequate  securitv  for  his  person  or  his  property.  The 
owner  of  goods  would  not  trust  them  on  a  railroad  or  a  steamboat,  if 
his  only  security  was  the  liability  of  the  mere  servants  employed.  No 
passenger  would  commit  his  safetj"  to  a  railroad,  steamboat,  or  stage- 
coach, if,  in  case  of  injur\%  he  could  look  to  none  but  the  agents 
usually  emplo3"ed  about  these  modes  of  transportation.  So,  also,  no 
man  would  have  any  guaranty  for  the  security  of  his  property,  if  his 
only  remedy  for  negligence  was  the  irresponsible  or  insolvent  agents 
which  another  might  emplo}'.  In  all  these,  and  similar  cases,  the  reasons 
of  the  liability  of  the  principal  are  clear,  and  the  law  books  are  full  of 
cases  or  precedents  which  apply  to  them  ;  but  it  is  not  so  with  the 
plaintiff's  case  ;  there  is  neither  authorit\'  nor  precedent  for  it. 

It  was  said  in  the  argument  that  if  the  engineer  had  been  the  owner 
of  the  road  he  would  have  been  liable.  Of  this  I  apprehend  there 
would  have  been  no  doubt,  but  then  his  liability  would  have  arisen,  not 
from  his  being  the  owner,  but  because  the  injury  arose  from  his  own 
act.  That  he  is  now  liable  seems  to  me  to  admit  of  no  doubt.  But  it 
b}'  no  means  follows  as  a  consequence  that  because  he  is  liable  those 
who  emplo}'  him  are  liable  also.  One  acting  as  agent  ma}'  subject 
himself  to  liabilit}'  in  a  vai'iet}'  of  cases  for  which  his  principal  would 
not  be  liable  ;  and  this  may  be  as  well  in  cases  of  contract  as  in  cases 
of  tort.  The  extent  of  the  liabilitv  of  the  principal  for  the  acts  of  the 
agent  can,  in  general,  be  readily  ascertained  from  the  object  of  the  con- 
tract and  the  relative  position  of  the  parties.  A  passenger  desires  to 
be  transported  from  one  place  to  another  ;  the  carrier  undertakes  to 
do  this,  and  is  liable  if  he  fails.  It  is  wholly  immaterial  by  whose 
default  the  injury  resulted.  There  has  been  a  breach  of  the  contract, 
and  he  has  a  right  to  look  to  him  with  whom  his  contract  was  made, 
"With  the  plaintiff  the  defendants  contracted  to  paj-  hire  for  his  services. 
Is  it  incident  to  this  contract  that  the  compan}-  should  guarantee  him 
against  the  negligence  of  his  co-servants?    It  is  admitted  he  takes  upon 


780  MURRAY   V.    SOUTH   CAROLINA    RAILROAD   CO.        J^CHAP.  VL 

himself  the  ordinary  risks  of  his  vocation  ;  wh^'  not  the  extraordinary 
ones?  Neither  are  within  his  contract  —  and  1  can  see  no  reason  for 
adding  this  to  the  already  known  and  acknowledged  liabilit}'  of  a 
carrier,  without  a  single  case  or  precedent  to  sustain  it.  The  engineer 
no  more  represents  the  company  than  the  plaintiff.  Each  in  his  several 
department  represents  his  principal.  The  regular  movement  of  the 
train  of  cars  to  its  destination  is  tlie  result  of  the  ordinary  performance 
by  each  of  his  several  duties.  If  the  fireman  neglects  his  part  the  engine 
stands  still  for  want  of  steam  ;  if  the  engineer  neglects  his,  everything 
runs  to  riot  and  disaster.  It  seems  to  me,  it  is,  on  the  part  of  the 
several  agents,  a  joint  undertaking,  where  each  one  stipulates  for  the 
performance  of  his  several  part.  The}'  are  not  liable  to  the  company' 
for  the  conduct  of  each  other,  nor  is  the  company  liable  to  one  for  the 
misconduct  of  another  ;  and,  as  a  general  rule,  I  would  sa}',  that  where 
there  was  no  fault  in  the  owner,  he  would  be  liable  only  for  wages  to 
his  servants  ;  and  so  far  has  this  doctrine  been  carried,  that  in  the  case 
of  seamen,  even  wages  are  forfeited  if  the  vessel  be  lost  and  no  freight 
earned. 

In  the  above  observations,  I  have  endeavored  to  confine  myself 
strictly  to  the  case  before  the  court.  It  is  not  intended  to  prejudge 
other  questions  which  ma}'  arise  between  the  company  and  its  ser- 
vants ;  nor  do  I  mean  to  say  that  a  case  may  not  occur  where  the 
owner,  whether  an  individual  or  company,  will  be  liable  for  the  acts  of 
one  agent  to  another ;  but  then  it  must  be  in  such  cases  as  where  the 
owner  employs  unfit  and  improper  persons  as  agents,  by  whose  igno- 
rance or  folly  another  is  injured.  Upon  such  a  case,  it  will  be  time 
enough  to  express  an  opinion  when  it  arises.  The  present  is  not  such 
a  case.  The  engineer,  according  to  the  evidence,  was  competent, 
though  he  may  have  been  rash  in  the  particular  instance  in  which  the 
plaintiff's  injury  was  sustained.  He  was  known  to  the  plaintiff  as  well 
as  to  the  company,  for  it  appears  by  the  report  that  he  selected  the 
engineer  under  whom  he  was  willing  or  prepared  to  serve.  It  seems  to 
me  the  plaintiff  is  not,  therefore,  entitled  to  retain  his  verdict,  and  a 
motion  for  a  new  trial  is  granted. 

Richardson,  Earle,  Butler,  Harper,  and  Dunkin,  JJ.  and  CC, 
concurred. 

Johnson,  C.  I  concur  in  this  opinion,  and  will  only  add  a  word 
in  illustration  of  my  own  views  of  the  question.  The  foundation  of 
all  legal  liability  is  the  omission  to  do  some  act  which  the  law  com- 
mands, the  commission  of  some  act  which  the  law  prohibits,  or  the 
violation  of  some  contract,  by  which  the  party  is  injured.  There  is 
no  law  regulating  the  relative  duties  of  the  owners  of  a  steam  car,  and 
the  persons  employed  by  them  to  conduct  it.  The  liability,  if  any 
attaches,  must  therefore  arise  out  of  contract.  What  was  the  contract 
between  these  parties?  The  plaintiff,  in  consideration  that  the  defend- 
ants would  pay  him  so  much  money,  undertook  to  perform  the  service 
of  fireman  on  the  train.     This  is  all  that  is  expressed.     Is  there  any- 


SECT.  II.]         MUKRAY   V.    SOUTH    CAROLINA   RAILROAD    CO.  781 

thing  more  implied  ?  Assuming  that  the  injury  done  was  in  conse- 
quence of  the  negligence  of  the  engineer,  the  defendants  would  not  be 
liable  unless  they  undertook  to  answer  for  his  diligence  and  skill.  Is 
that  implied  ?  I  think  not.  The  law  never  implies  an  obligation  in 
relation  to  a  matter  about  which  the  parties  are  or  ma}',  with  proper 
diligence,  be  equally'  informed.  No  one  will  ever  be  presumed  to 
undertake  for  that  which  a  common  observer  would  at  once  know  was 
not  true.  The  common  case  of  the  warranty  of  the  soundness  of  a 
horse,  notoriously  blind,  ma}'  be  put  in  illustration.  The  warranty 
does  not  extend  to  the  goodness  of  the  eyes,  because  the  purchaser 
knew,  or  might  have  known,  with  proper  care,  that  they  were  defective. 

Now,  the  plaintiff  knew  that  he  was  not  to  conduct  the  train  alone. 
He  knew  that  he  was  to  be  placed  under  the  control  of  the  engineer. 
He  knew  that  the  employment  in  which  he  was  engaged  was  perilous, 
and  that  its  success  was  dependent  on  the  common  efforts  of  all  the 
hands  ;  and,  with  proper  diligence  and  prudence,  he  might  have  been 
as  well,  and  it  does  not  follow  that  he  might  not  have  been  better, 
informed  than  the  defendants,  about  the  fitness  and  security  of  all  the 
appointments  connected  with  the  train.  If  he  was  not,  it  was  his  own 
want  of  prudence,  for  which  defendants  are  not  responsible.  If  he 
was,  he  will  be  presumed  to  have  undertaken  to  meet  all  the  perils 
incident  to  the  employment. 

There  is  not  the  least  analogy  between  this  case  and  that  of  common 
carriers  of  goods  or  transporters  of  persons.  The}'  are  liable  in  respect 
to  the  price  paid.  Not  so  here.  The  plaintiff  paid  nothing  for  his 
transportation  ;  on  the  contrary,  he  was  to  be  paid  for  his  labor,  and 
for  the  perils  to  which  he  was  exposed,  as  incident  to  his  employment. 
No  prudent  man  would  engage  in  any  perilous  employment,  unless 
seduced  by  greater  wages  than  he  could  earn  in  a  pursuit  unattended 
by  any  unusual  danger. 

O'Neall,  J.,  dissenting.  This  case  was  tried  by  myself,  and  al- 
though, had  I  been  on  the  jury,  I  should  have  found  for  the  defendants, 
yet  there  were  certainly  facts  in  the  evidence  which  might  have  led 
another  to  a  different  conclusion  ;  and,  therefore,  I  am  not  disposed  to 
disturb  the  verdict.  This  makes  it  necessary  to  consider  the  legal  doc- 
trine which  I  laid  down  to  tlie  jury.  In  substance,  I  held,  that  if  the 
injury  to  the  plaintiff  resulted  from  the  negligence  of  the  engineer, 
then  the  plaintiff  was  entitled  to  recover.  This  doctrine  a  large 
majority  of  my  brethren  think  erroneous,  and  however  much  deference 
is  due  to  their  opinions,  yet,  as  I  consider  them  to  be  wrong,  I  think  it 
my  duty  to  state  my  own  views. 

This  case  is  one  of  the  first  arising  out  of  the  conveyance  of  human 
beings  by  locomotives  on  railroads.  It  goes  beyond  the  ordinary  case 
of  a  passenger,  and  presents  a  claim  on  the  part  of  a  hired  servant, 
against  his  employers,  for  an  injury  sustained  in  their  service.  If  it 
arose  out  of  any  of  the  old-fashioned  modes  of  conveyance,  managed 
t>y  the  defendants  themselves,  could  there  be  a  doubt  that  they  would 


782  MURRAY   V.   SOUTH   CAROLINA   RAILROAD   CO.        [CIIAP.  VL 

be  liable,  if  the  injury  resulted  from  negligence  ?  Take  the  case  of  a 
stage-coach,  driven  by  the  owner,  and  let  it  be  siipijosed  that  the  plain- 
tiff was  hired  as  a  guard,  and  that  he  was  injured  in  that  employment, 
by  the  careless  driving  of  the  defendant,  who  would  hesitate  to  say 
that  he  was  entitled  to  recover?  No  one  who  had  a  proper  regard  to 
legal  principles.  Is  there  any  distinction  in  law  as  to  the  effect  which 
the  employment  of  the  plaintiff  is  to  have,  in  the  different  kinds  of  ser- 
vice in  wliich  he  may  engage?  I  think  there  is  none.  If  Mr.  Tu[)per, 
the  able  and  efficient  officer  of  the  company,  had,  in  person,  managed 
the  engine,  and  the  plaintiff  had  been  injured  by  his  carelessness,  I 
would  most  respectfully  ask,  how  could  it  be  pretended  that  the  com- 
pany was  not  liable?  I  admit  here,  once  and  for  all,  that  the  plaintiff, 
like  an}'  otiier  servant,  took,  as  consequence  of  his  contract,  the  usual 
and  ordinar}-  risks  of  his  employment.  What  is  meant  bv  this?  No 
more  than  that  he  could  not  claim  for  an  injur}'  against  which  the  ordi- 
nary prudence  of  his  employers,  their  agents,  or  himself  could  pro- 
vide. Whenever  negligence  is  made  out  as  the  cause  of  injurv,  it  does 
not  result  from  the  ordinar}-  risks  of  employment. 

How  far  are  the  defendants  liable  for  the  acts  of  the  engineer?  In 
the  language  used  in  Bacon's  Abridgement,  tit.  Master  and  Servant, 
letter  R,  "it  is  highl}-  reasonable  that  they  should  answer  for  such 
substitute,  at  least  civi'liter;  and  that  his  acts,  being  pursuant  to  the 
authority  given  him,  should  be  deemed  the  acts  of  the  master."  Now 
to  this  authority,  it  will  not  do  to  say  the  defendants  did  not  authorize 
the  engineer  to  run  his  engine  so  carelessly  as  to  injure  the  plaintiff. 
They  put  him  in  command  of  it,  and  authorized  him  with  it  to  run  the 
road.  If,  in  the  doing  of  this  act,  which  is  according  to  their  authority, 
he  acts  negligentl}',  then  they  are  liable  for  the  consequences,  for  they 
result  from  the  doing  of  their  business,  b}'  one  then  employed  by 
them.  The  cases  of  Drayton  ads.  Moore  and  Parker  &  Co.  v.  Gordon, 
Dudley,  268,  and  of  O'Connell  v.  Strong,  Id.  265,  are  full  to  this 
point.  In  ordinary  cases,  this  would  not  be  questioned.  But  it  is 
supposed  that  this  case  is  not  governed  b}-  the  ordinary  rules  applicable 
to  cases  of  liabilit}',  arising  out  of  the  relation  of  master  and  servant. 
I  am  at  a  loss  to  conceive  an}' just  reason  for  this  notion.  The  law,  it 
seems  to  me,  is  to  be  regarded  as  a  general  science,  applicable  to  every 
case  coming  within  the  letter  or  the  reason  of  the  rule.  Where  it  is 
within  neither,  it  becomes  an  exception  to  it.  It  is  only  necessary  to 
state  this  case,  to  see  that  it  is  within  both  the  letter  and  reason  of  the 
rule  ;  for  the  defendants  employ  the  plaintiff  to  act  under  the  command 
of  another  of  their  servants.  In  such  a  case,  the  servant  in  command 
is  in  the  place  of  the  employers.  When  they  hire  another  to  engage  in 
a  service,  where  neither  his  own  care  nor  prudence  can  shield  him  from 
injury,  which  may  arise  from  the  act  of  another  of  their  agents  having 
the  control  of  him,  the  question  of  their  liability  depends  upon  the  care 
used  by  such  superior  agent.  The  ordinary  rule  in  cases  of  hiring 
goods  is.  that  the  hirer  should  nse  that  degree  of  care  which  a  prudent 


SECT.  II.]         MURRAY   V.    SOUTH    CAROLINA   RAILROAD   CO.  783 

man  would  take  of  his  own  goods.  If  this  degree  of  care  is  shown, 
then  the  hirer  is  not  liable  for  any  injury  which  may  result  to  the  goods 
hired.  This  rule,  it  seems  to  me,  must,  necessarily,  be  that  which 
applies  to  this  case.  Is  more  favor  to  be  bestowed  on  a  man's  goods 
than  on  his  person?  It  would  be  strange  that  this  should  be  so.  It 
may  be  tested,  however,  by  inquiring  if  the  plaintiff,  instead  of  him- 
self, had  hired  his  negro  man  to  the  defendants  as  second  fireman, 
and  he  had  lost  his  leg  by  the  carelessness  of  the  engineer,  would  not 
the  defendants  have  been  liable  ?  It  seems  to  me  that  they  would,  or 
one  section  of  the  law  of  bailments  would  be  repealed  b}-  the  Court  of 
Errors.  There  can  be  no  difference  in  tlie  law  as  applicable  to  the 
white  man  or  the  slave,  in  a  contract  of  hiring.  Both  are  capable  of 
self-preservation,  and  both  are  capable  of  wrong  and  right  action  ;  and 
in  the  capacity  of  firemen,  both  are  under  the  orders  of  the  engineer, 
and  must  look  to  him  for  safet}'. 

In  the  cases  of  Drayton  ads.  Moore,  and  Parker  &  Co.  v.  Gordon, 
Dud.  272,  it  was  said,  "  When  a  master  employs  slaves  in  any  public 
employment  or  trust,  such  as  tradesmen,  ferrymen,  wagoners,  patroons 
of  boats,  or  masters  of  vessels  in  the  coasting  or  river  navigation,  he 
undertakes,  not  only  for  their  skill  and  faithfulness  to  all  who  ma}' 
emplo}'  them,  but  also  for  their  general  skill  and  faithfulness  to  the 
whole  community."  This  rule  stated  as  to  slaves  applies  more  forci- 
bly to  hired  servants,  and  m}'  brother  Joiinson,  who  then  resisted  the 
rule  as  to  slaves,  admitted  it  in  its  fullest  extent  as  to  hired  servants. 
Taking  this  as  settled  law,  how  stood  the  plaintiff  in  his  contract  with 
the  defendants  in  relation  to  the  engineer?  Had  he  not  the  right, 
according  to  law,  to  regard  the  defendants  as  contracting  both  for  his 
skilfulness  and  faithfulness?  It  seems  to  me  there  can  be  no  doubt 
about  it.  Well,  this  being  so,  if  the  engineer  was  negligent,  the  de- 
fendant's undertaking  for  his  faithfulness  was  broken,  and  they  are 
most  clearly  liable. 

It  is,  however,  urged  (and  that  is,  as  I  understand,  the  ground  on 
which  the  Court  of  Errors  decides  the  case)  that  this  case  is  one  of 
novel  impression,  and  not  to  be  decided  by  the  ordinary  rules  of  the 
law  of  bailment.  Conveyance  bv  locomotives  on  railways  is  supposed 
to  be  more  analogous  to  shipping  than  anything  else  ;  and  hence, 
unless  a  sailor  could  recover  for  an  injury  arising  from  the  neglect  of 
the  master,  it  is  supposed  that  a  fireman  cannot,  for  an  injury  arising 
from  the  neglect  of  the  engineer.  Before  I  discuss  the  case  in  this 
new  aspect,  I  deny  that  any  mode  of  conveyance  on  land  is  to  be 
put  on  a  footing  with  the  navigation  of  the  ocean  in  ships.  That 
is  governed  by  principles  of  law  coeval  with  society,  and  m  many 
respects  common  to  every  civilized  nation  of  the  earth.  Conve}- 
ances  on  land  are  also  regulated  by  a  very  ancient  and  well-settled 
law  wholly  distinct  from  the  other.  It  will,  however,  be  sufflcient 
to  show,  by  one  plain  view,  that  the  law  applicable  to  mariners 
cannot  affect  this  case.     Unless  a  vessel  earns  freight,  the  mariner  is 


784  MURRAY   l\    SOUTH   CAROLINA   RAILROAD   CO.         [CIIAP.  VL 

entitled  to  no  wages.  Suppose  a  locomotive  running  from  Charleston 
to  Ailcen  should  burn  up  the  entire  train,  and  tlius  earn  no  freight, 
would  not  all  the  hands  hired  by  the  defendants  to  manage  ber  be 
entitled  to  their  wages?  There  could  be  no  more  doubt  that  they 
would,  than  that  a  man  hired  to  drive  my  wagon  to  Charleston,  who, 
b}'  some  unforeseen  accident,  should  lose  his  load,  would  still  be  entitled 
to  his  wages.  This  shows  that  in  the  very  beginning  there  is  such  a 
difference  in  the  law  of  a  ship  and  that  of  a  locomotive  that  it  is 
impossible  the  law  of  the  former  can  decide  the  right  of  a  servant 
employed  in  the  latter  to  recover  for  an  injury  arising  from  the  neglect 
of  the  engineer. 

But  if  it  were  otherwise,  and  this  case  depended  upon  maritime  law, 
still  I  am  inclined  to  think  the  plaintiff  ought  to  recover.  No  exactly 
analogous  case  can  be  found.  In  Pliillips  on  Insurance,  463,  Judge 
Stor}'  is  represented  as  saying,  in  the  case  of  The  Saratoga:  "It  ap- 
pears to  me,  that  upon  the  established  doctrine  of  our  law,  where  the 
freight  is  lost  by  inevitable  accident,  the  seamen  cannot  recover  wages, 
as  such,  from  the  shipowner."  I  concede  that  this  dictum  is  the  true 
law  regulating  a  mariner's  right  to  wages.  If  the  freight  was  lost  by 
the  master's  neglect,  it  could  not  then  be  ascribed  to  inevitable  acci- 
dent ;  and  then,  I  think,  the  seaman  would  be  entitled  to  recover.  If 
this  is  true  in  relation  to  wages,  the  same  rule  must  hold  as  to  the 
mariner's  right  to  recover  for  an}^  injurj'  arising  from  the  negligence  of 
the  master. 

But  it  is  said,  it  would  be  impolitic  to  make  the  defendants  liable  for 
any  injury  accruing  to  a  fireman  from  the  neglect  of  the  engineer. 
This  would  be  worth  inquiring  into  with  great  care  in  the  legislature  ; 
but,  in  a  court,  I  think  we  have  nothing  to  do  with  the  policy  of  a  case  ; 
the  law  of  it  is  our  guide.  But  if  we  are  to  look  to  the  policy-,  then  I 
should  argue  that  the  more  liability  imposed  on  the  railroad  compan}', 
the  more  care  and  prudence  would  be  thereby  elicited.  This  result  is 
what  the  communit}'  desires.  For  it  secures  life  and  property  com- 
mitted to  their  care. 

I  think  the  motion  ought  to  be  dismissed. 

Gantt,  J.,  concurred. 

J.  Johnston,  Chancellor,  also  dissenting.  It  maj'  not  diminish  the 
force  of  the  observations  made  bj'  Mr.  Justice  O'Neall,  if  I  state  ver3- 
briefl}'  the  reasons  which  induce  me  to  concur  in  his  dissent.  It  is  ad- 
mitted that  the  duties  and  liabilities  between  masters  and  hired  servants 
result  only  from  the  nature  and  terms  of  the  contract  wnich  forms  the 
relation  ;  and  that  neither  party  is  allowed  to  extend  or  abridge  the 
contract.  That  the  master  cannot  exact  other  services  than  those 
stipulated  for ;  nor,  by  an}'  indirection,  subject  the  servant  to  an}'^ 
other  than  the  ordinary  perils  incident  to  the  employment ;  and  that  if 
he  does  b}'  any  agency  whatever,  or  by  an}'  means,  whether  of  design  or 
negligence,  accumulate  upon  the  servant,  while  in  the  performance  of 
his  duty,  any  dangers  bej'ond  those  inherent  in  the  service  itself,  they  fall 


SECT.  II.]         MUKRAY   V.    SOUTH   CAROLINA    RAILROAD   CO.  785 

upon  the  latter,  not  as  a  servant  (for  bis  contract  does  not  bind  him  to 
endure  them),  but  as  a  man,  and  the  law  entitles  him  to  redress. 

It  is  also  admitted  that  these  principles  are  not  confined  to  cases 
where  one  servant  only  is  employed,  but  prevail  when  a  plurality  are  at 
the  same  time  engaged  by  the  same  master.  Their  aijplication,  how- 
ever, in  cases  of  the  latter  description,  depends  upon  the  terms  of  the 
contract.  If  several  jointly  contract  to  perform  a  specified  duty,  the 
master  is  not  liable  to  either  of  them  for  injuries  resulting  from 
the  faithlessness  or  negligence  of  his  coadjutor  ;  all  of  them  being,  sub- 
stantiall}',  agents  for  each  other,  to  perform  their  joint  undertaking. 
But  when  their  engagements  are  several,  each  undertaking  for  himself 
to  perform  distinct  offices,  in  a  matter  susceptible  of  a  division  of  labor, 
each  stands  to  the  master  in  the  same  relation,  and  is  entitled  to  the 
same  rights,  as  if  he  was  the  onh'  servant  employed.  The  master  is 
responsible  to  him,  as  he  would  be  to  a  stranger,  for  the  misconduct  of 
the  others,  who  are  exclusively  his,  the  master's,  agents.  Now,  this  is 
admitted  to  be  the  general  law  upon  the  subject ;  and  it  is  applicable  to 
the  servants  of  a  railroad  company,  as  well  as  to  those  of  an}-  other 
emplover,  unless  there  be  something  to  take  them  out  of  its  operation. 
No  instance  of  master  and  servant  has  been  pointed  out  where  these 
principles  do  not  obtain,  except  the  case  of  a  ship's  crew ;  but  that 
stands  clearl}-  upon  special  grounds  of  usage.  If  the  servants  em- 
ployed about  a  railroad  are  excepted  out  of  the  general  rules  relating 
to  agenc}-,  the  exception,  with  the  grounds  and  reasons  of  it,  must  be 
shown,  otherwise  the  employers  will  be  as  liable  to  an}'  one  engaged  in 
their  service,  for  injuries  inflicted  on  him  by  other  agents,  in  the  course 
of  their  employment,  as  a  planter  would  be  to  a  hired  hand  for  mal- 
treatment by  his  overseer. 

I  presume  no  one  will  contend  that  the  rule  applicable  to  service 
in  a  railroad  company  is,  that  the  company  is  not  liable  to  any  agent, 
for  any  injury,  provided  the  company  can  only  show  that  another  of  its 
agents  has  inflicted  it.  Would  it  do  to  say,  for  example,  —  and  upon 
what  principle  could  it  be  said,  —  that  a  superintendent  of  the  hands 
engaged  in  repairing  the  road  may,  with  impunity  to  the  company, 
abuse  his  authority  to  the  injury  of  their  health?  Or,  if  the  cars  were 
to  be  run  at  night,  and,  through  the  neglect  of  hands  set  apart  to 
watch  the  road  and  remove  obstructions,  the  whole  train  were  lost,  and 
any  officer  or  hand  on  board  were  crippled,  certainly  no  one  means  to 
assert  that  none  of  these  could  claim  compensation  from  the  company, 
but  must  look  exclusively  to  the  irresponsible  agents  (perhaps  slaves), 
hired  by  the  company,  through  whom  the  injury  accrued.  And  yet, 
how  is  a  rule  to  be  laid  down  —  I  wish  to  hear  the  rule  stated  —  which 
would  include  that  case  and  exclude  this  ?  The  fidelity  of  the 
hands  detailed  to  superintend  the  road,  in  the  case  I  have  supposed, 
would  be  as  essential  to  the  common  enterprise  of  running  the  cars,  as 
the  fidelity  of  the  hands  on  board  to  their  respective  duties.  If  the  idea 
is  indulged,  that  there  is,  in  any  branch  of  this  enterprise,  an  implied 

50 


786  FARWELL   V.    BOSTON,    ETC.    RAILROAD    CORP.         [CHAP.  VI. 

undertaking  among  tlie  servants  to  do  the  work  jointly,  and  to  waive 
the  neglect  of  each  other,  what  will  constitute  such  an  understanding? 
Where  are  its  limits?  Does  it  arise  from  the  intimate  connection  of  the 
haiuls?  Then  I  wish  to  be  informed  what  degree  of  intimac\-,  what 
strength  of  association,  is  demanded,  to  raise  the  implication?  Where 
is  the  line? 

I  give  no  opinion  upon  the  evidence.  I  take  the  verdict  for  the 
facts;  and,  according  to  the  finding  of  the  jur}-,  the  plaintilf  faithfully 
performed  his  particular  dutN',  and,  while  performing  it,  was  injured  by 
the  faithlessness  or  negligence  with  which  the  compan}',  acting  in  the 
person  of  another  agent,  executed  a  duty  incumbent  upon  them.  Ought 
the  plaintiff's  remedy  to  be  doubtful? 

The  elements  of  the  contract  between  him  and  the  defendants  are 
these  :  on  their  part,  so  far  as  they  were  to  contribute  to  the  propelling 
of  the  cars,  that  the}'  would  carry  him  safely ;  and,  on  his  part,  that  on 
the  trip  he  would  perform  certain  offices.  With  respect  to  the  last,  he 
was  their  servant ;  with  regard  to  the  first,  he  was  their  passenger ; 
and  as  their  passenger  they  have  crippled  him.  The  distinction  is 
plain,  and  the  proprietv  of  applying  it  would  be  as  plain,  if  instead  of 
being  stationed  where  he  was,  he  had  only  been  a  clerk,  hired  by  the 
company,  to  travel  up  and  down  in  the  cars,  and  take  a  minute  of  their 
operations.  Yet,  on  principle,  no  discrimination  can  be  drawn  against 
him  on  account  of  his  being  a  fireman,  and  not  travelling  clerk  ;  be- 
cause he  had  as  little  connection  with,  or  control  over,  the  department 
from  which  his  injury  sprang,  or  the  agent  to  whom  it  was  exclusively 
committed  by  the  defendants,  as  if  he  had  been  assigned  any  imagi 
nable  duty  in  the  remotest  part  of  the  train. 


FARWELL  V.  THE  BOSTON  AND   WORCESTER  RAILROAD 

CORPORATION. 

Supreme  Judicial  Court  of  Massachusetts.     1842. 

[4  Met.  49.] 

In  an  action  of  trespass  upon  the  case,  the  plaintiff  alleged  in  his 
declaration  that  he  agreed  with  the  defendants  to  serve  them  in  the 
employment  of  an  engineer  in  the  management  and  care  of  their  en- 
gines and  cars  running  on  their  railroad  between  Boston  and  Worcester, 
and  entered  on  said  emplovment,  and  continued  to  perform  his  duties 
as  engineer  till  October  30,  1837,  when  the  defendants,  at  Newton,  by 
their  servants,  so  carelessly,  negligently,  and  unskilfully  managed  and 
used,  and  put  and  placed  the  iron  match  rail,  called  the  short  switch, 
across  the  rail  or  track  of  their  said  railroad,  that  the  engine  and  cars, 
upon  which  the  plaintiff  was  engaged  and  employed  in  the  discharge 


SECT.  II.]        FARWELL   V.    BOSTON,   ETC.    RAILROAD   CORP.  787 

of  his  said  duties  of  engineer,  were  thrown  from  the  track  of  said  rail- 
road, and  the  plaintiff,  by  means  thereof,  was  thrown  with  great  vio- 
lence upon  the  ground  ;  l\v  means  of  which  one  of  the  wheels  of  one  of 
said  cars  passed  over  the  right  hand  of  the  plaintiff,  crushing  and 
destroying  the  same. 

The  case  was  submitted  to  the  court  on  the  following  facts  agreed  by 
the  parties:  "  The  plaintiff  was  employed  by  the  defendants,  in  1835, 
as  an  engineer,  and  went  at  first  with  the  merchandise  cars,  and  after- 
wards with  the  passenger  cars,  and  so  continued  till  October  30,  1837, 
at  the  wages  of  two  dollars  per  day  ;  that  being  the  usual  wages  paid 
to  engine-men,  which  are  higher  than  the  wages  paid  to  a  machinist,  in 
which  capacity  the  plaintiff  formerly  was  employed. 

•■'On  the  30th  of  October,  1837,  the  plaintiff,  then  being  in  the  em- 
ployment of  the  defendants,  as  such  engine-man,  and  running  the  pas- 
senger train,  ran  his  engine  off  at  a  switch  on  the  road,  which  had  been 
left  in  a  wrong  condition  (as  alleged  by  the  plaintiff,  and,  for  the  pur- 
poses of  this  trial,  admitted  by  the  defendants)  by  one  Whitcomb,  an- 
other servant  of  the  defendants,  who  had  been  long  in  their  employ- 
ment, as  a  switch-man  or  tender,  and  had  the  care  of  switches  on  the 
road,  and  was  a  careful  and  trustworth}'  servant  in  his  general 
character,  and  as  such  servant  was  well  known  to  the  plaintiff.  By 
which  running  off,  the  plaintiff  sustained  the  injury  complained  of  in 
his  declaration. 

"  The  said  B'arwell  (the  plaintiff)  and  Whitcomb  were  both  appointed 
by  the  superintendent  of  the  road,  who  was  in  the  habit  of  passing 
over  the  same  verj-  frequently  in  the  cars,  and  often  rode  on  the  engine. 

"  If  the  court  shall  be  of  opinion  that,  as  matter  of  law,  the  defend- 
ants are  not  liable  to  the  plaintiff,  he  being  a  servant  of  the  corpo- 
ration, and  in  their  emplo3'ment,  for  the  injurv  he  may  have  received 
from  the  negligence  of  said  Whitcomb,  another  servant  of  the  cor- 
poration, and  in  their  employment,  then  the  plaintiff  shall  become 
nonsuit ;  but  if  the  court  shall  be  of  opinion  as  matter  of  law,  that 
the  defendants  may  be  liable  in  this  case,  then  the  case  shall  be  sub- 
mitted to  a  jury  upon  the  facts  which  may  be  proved  in  the  case  ;  the 
defendants  alleging  negligence  on  the  part  of  the  plaintiff." 

C.  G.  Loriiuj,  for  the  plaintiff. 

Fletcher  db  J/om/,  for  the  defendants. 

Shaw,  C.  J.  This  is  an  action  of  new  impression  in  our  courts,  and 
involves  a  principle  of  great  importance.  It  presents  a  case  where  two 
persons  are  in  the  service  and  employment  of  one  compan}',  whose 
business  it  is  to  construct  and  maintain  a  railroad,  and  to  employ  their 
trains  of  cars  to  carry  persons  and  merchandise  for  hire.  The}-  are 
appointed  and  employed  by  the  same  compan}-  to  perform  separate 
duties  and  services,  all  tending  to  the  accomplishment  of  one  and  the 
same  purpose,  —  that  of  the  safe  and  rapid  transmission  of  the  trains  ; 
and  they  are  paid  for  their  respective  services  according  to  the  nature 
of  their  respective  duties,  and  the  labor  and  skill  required  for  their 


788  FA.R\VELL   V.    BOSTON,   ETC.    RAILROAD    CORP.         [CHAP.  VI. 

proper  performance.  The  question  is,  whether,  for  damages  sustained 
by  one  of  the  persons  so  employed,  b}'  means  of  the  carelessness  and 
negligence  of  another,  the  party  injured  has  a  remedy  against  the  com- 
mon employer.  It  is  an  argument  against  such  an  action,  though  cer- 
tainly not  a  decisive  one,  that  no  such  action  has  before  been 
maintained. 

It  is  laid  down  bj-  Blackstone,  that  if  a  servant,  by  his  negligence, 
does  any  damage  to  a  stranger,  the  master  shall  be  answerable  for  his 
neglect.  But  the  damage  must  be  done  while  he  is  actuall}'  emplo3"ed 
in  the  master's  service  ;  otherwise,  the  servant  shall  answer  for  his  own 
misbehavior.  1  Bl.  Com.  431  ;  M'Manus  v.  Crickett,  1  East,  106. 
This  rule  is  obviousl}'  founded  on  the  great  principle  of  social  dut}', 
that  every  man,  in  the  management  of  his  own  affairs,  whether  bj' 
himself  or  by  his  agents  or  servants,  shall  so  conduct  them  as  not  to 
injui'e  another  ;  and  if  he  does  not,  and  another  thereby  sustains  dam- 
age, he  shall  answer  for  it.  If  done  b}'  a  servant,  in  the  course  of  his 
employment,  and  acting  within  the  scope  of  his  authority,  it  is  con- 
sidered, in  contemplation  of  law,  so  far  the  act  of  the  master  that  the 
latter  shall  be  answerable  civiliter.  But  this  presupposes  that  the  par- 
ties stand  to  each  other  in  the  relation  of  strangers,  between  whom 
there  is  no  privity  ;  and  the  action,  in  such  case,  is  an  action  sounding 
in  tort.  The  form  is  trespass  on  the  case,  for  the  consequential  dam- 
age. The  maxim  respondeat  superior  is  adopted  in  that  case,  from 
general  considerations  of  polic}'  and  security. 

But  this  does  not  appl}'  to  the  case  of  a  servant  bringing  his  action 
against  his  own  emplo3-er  to  recover  damages  for  an  injury  arising  in 
the  course  of  that  emplo3ment,  where  all  such  risks  and  perils  as  the 
emplo3-er  and  the  servant  respectivel3'  intend  to  assume  and  bear  may 
be  regulated  b3'  the  express  or  implied  contract  between  them,  and 
which,  in  contemplation  of  law,  must  be  presumed  to  be  thus  regulated. 

The  same  view  seems  to  have  been  taken  by  the  learned  counsel  for 
the  plaintiff  in  the  ai'gument ;  and  it  was  conceded  that  the  claim  could 
not  be  placed  on  the  principle  indicated  b3'  the  maxim  respondeat 
superior^  which  binds  the  master  to  indemnif3'  a  stranger  for  the  dam- 
age caused  b3'  the  careless,  negligent,  or  unskilful  act  of  his  servant  in 
the  conduct  of  his  affairs.  The  claim,  therefore,  is  placed,  and  must  be 
maintained,  if  maintained  at  all,  on  the  ground  of  contract.  As  there 
is  no  express  contract  between  the  parties  applicable  to  this  point,  it 
is  placed  on  the  footing  of  an  implied  contract  of  indemnity,  arising 
out  of  the  relation  of  master  and  servant.  It  would  be  an  implied 
promise,  arising  from  the  dut3'  of  the  master  to  be  responsible  to  each 
person  emplo3'ed  by  him,  in  the  conduct  of  ever3'  branch  of  business, 
where  two  or  more  persons  are  emplo3-ed,  to  pa3'  for  all  damage  occa- 
sioned b3'  the  negligence  of  ever3'  other  person  employed  in  the  same 
service.  If  such  a  dut3'  were  established  by  law  —  like  that  of  a  com- 
mon carrier,  to  stand  to  all  losses  of  goods  not  caused  b3'  the  act  of 
God  or  of  a  public  enem3'  —  or  that  of  an  innkeeper,  to  be  responsible, 


SECT.  II.]         FARWELL    V.    BOSTON,   ETC.    RAILROAD   CORP.  789 

in  like  manner,  for  the  baggage  of  his  guests  ;  it  would  be  a  rule  of  fre- 
quent and  familiar  occurrence,  and  its  existence  and  application,  with 
all  its  qualifications  and  restrictions,  would  be  settled  by  judicial  pre- 
cedents. But  we  arc  of  opinion  that  no  such  rule  has  been  established, 
and  the  authorities,  as  far  as  the}'  go,  are  opposed  to  the  principle. 
Priestley  v.  Fowler,  3  Mees.  &  Welsh.  1  ;  Murray  v.  South  Carolina 
Railroad  Company,  1  McMuUan,  880. 

The  general  rule,  resulting  from  considerations  as  well  of  justice  as 
of  policy,  is,  that  he  who  engages  in  the  emplo3'ment  of  another  for  the 
performance  of  specified  duties  and  services,  for  compensation,  takes 
upon  himself  the  natural  and  ordinary  risks  and  perils  incident  to  the 
performance  of  such  services,  and  in  legal  presumption,  the  compensa- 
tion is  adjusted  accordingly.  And  we  are  not  aware  of  any  principle 
which  should  except  the  perils  arising  from  the  carelessness  and  negli- 
gence of  those  who  are  in  the  same  employment.  These  are  perils 
which  the  servant  is  as  likely  to  know,  and  against  which  he  can  as 
effectually  guard,  as  the  master.  They  are  perils  incident  to  the  ser- 
vice, and  which  can  be  as  distinctly  foreseen  and  provided  for  in  the 
rate  of  compensation  as  any  others.  To  say  that  the  master  shall  be 
responsible  because  the  damage  is  caused  by  his  agents,  is  assuming 
the  very  point  which  remains  to  be  proved.  They  are  his  agents  to 
some  extent,  and  for  some  purposes;  but  whether  he  is  responsible,  in 
a  particular  case,  for  their  negligence,  is  not  decided  by  the  single  fact 
that  they  are,  for  some  purposes,  his  agents.  It  seems  to  be  now  well 
settled,  whatever  might  have  been  thought  formerly,  that  underwriters 
cannot  excuse  themselves  from  payment  of  a  loss  by  one  of  the  perils 
insured  against,  on  the  ground  that  the  loss  was  caused  by  the  negli- 
gence or  unskilfulness  of  the  officers  or  crew  of  the  vessel,  in  the  per- 
formance of  their  various  duties  as  navigators,  although  employed  and 
paid  by  the  owners,  and,  in  the  navigation  of  the  vessel,  their  agents. 
Copeland  i'.  New  England  Marine  Ins.  Co.,  2  Met.  i40-443,  and  cases 
there  cited.  I  am  aware  that  the  maritime  law  has  its  own  rules  and 
analogies,  and  that  we  cannot  alwa3's  safel}'  rely  upon  them  in  applying 
them  to  other  branches  of  law.  But  the  rule  in  question  seems  to  be  a 
good  authority  for  the  point  that  persons  are  not  to  be  responsible,  in 
all  cases,  for  the  negligence  of  those  employed  by  them. 

If  we  look  from  considerations  of  justice  to  those  of  policy,  they  will 
strongly  lead  to  the  same  conclusion.  In  considering  the  rights  and 
obligations  arising  out  of  particular  relations,  it  is  competent  for  courts 
of  justice  to  regard  considerations  of  policy  and  general  convenience, 
and  to  draw  from  them  such  rules  as  will,  in  their  practical  application, 
best  promote  the  safety  and  security  of  all  parties  concerned.  This  is, 
in  truth,  the  basis  on  which  implied  promises  are  raised,  being  duties 
legally  inferred  from  a  consideration  of  what  is  best  adapted  to  pro- 
mote the  benefit  of  all  persons  concerned,  under  given  circumstances. 
To  take  the  well-known  and  familiar  cases  already  cited  ;  a  common 
carrier,  without  regard  to  actual  fault  or  neglect  in  himself  or  his  ser- 


790  FARWELL   V.    BOSTON,   ETC.    RAILROAD    CORP.        [CHAP.  VL 

vants,  is  made  liable  for  all  losses  of  goods  confided  to  him  for  carriage, 
except  those  caused  by  the  act  of  God  or  of  a  public  enem^-,  because  he 
can  best  guard  them  against  all  minor  dangers,  and  because,  in  case  of 
actual  loss,  it  would  be  extremely  diflicult  for  the  owner  to  adduce 
proof  of  embezzlement,  or  other  actual  fault  or  neglect  on  the  part  of 
the  carrier,  although  it  may  have  been  the  real  cause  of  the  loss.  The 
risk  is  therefore  thrown  u[)on  the  carrier,  and  he  receives,  in  the  form 
of  payment  for  the  carnage,  a  premium  for  the  risk  which  he  thus  as- 
sumes. So  of  an  innkeeper ;  he  can  best  secure  the  attendance  of 
honest  and  faithful  servants,  and  guard  his  house  against  thieves. 
Whereas,  if  he  were  responsible  only  upon  proof  of  actual  negligence, 
he  might  connive  at  the  presence  of  dishonest  inmates  and  retainers, 
and  even  participate  in  the  embezzlement  of  the  property  of  the  guests 
during  the  hours  of  their  necessary  sleep,  and  yet  it  would  be  difficult, 
and  often  impossible,  to  prove  these  facts. 

The  liability  of  passenger  carriers  is  founded  on  similar  considera- 
tions. The}'  are  held  to  the  strictest  responsibility  for  care,  vigilance, 
and  skill,  ou  the  part  of  themselves  and  all  persons  employed  by  them, 
and  they  are  paid  accordingh'.  The  rule  is  founded  on  the  expediency 
of  throwing  the  risk  upon  those  who  can  best  guard  against  it.  Story 
on  Bailments,  §  590,  et  seg. 

We  are  of  opinion  that  these  considerations  apply  strongly  to  the 
case  in  question.  Where  several  persons  are  emplo3'ed  in  the  conduct 
of  one  common  enterprise  or  undertaking,  and  the  safet}'  of  each  de- 
pends much  on  the  care  and  skill  with  which  each  other  shall  perform 
his  appropriate  duty,  each  is  an  observer  of  the  conduct  of  the  others, 
can  give  notice  of  anj'  misconduct,  incapacity,  or  neglect  of  dut}-,  and 
leave  the  service,  if  the  common  employer  will  not  take  such  precau- 
tions, and  employ  such  agents,  as  the  safety  of  the  whole  party  maj' 
require.  By  these  means,  the  safety  of  each  will  be  much  more  effec- 
tually secured  than  could  be  done  by  a  resort  to  the  common  employer 
for  indemnity  in  case  of  loss  by  the  negligence  of  each  other.  Regard- 
ing it  in  this  light,  it  is  the  ordinary  case  of  one  sustaining  an  injury 
in  the  course  of  his  own  employment,  in  which  he  must  bear  the  loss 
himself,  or  seek  his  remedy,  if  he  have  any,  against  the  actual  wrong- 
doer.^ 

In  applying  these  principles  to  the  present  case,  it  appears  that  the 
plaintiff  was  employed  by  the  defendants  as  an  engineer,  at  the  rate  of 
wages  usually  paid  in  that  employment,  being  a  higher  rate  tlian  the 
plaintiff  had  before  received  as  a  machinist.  It  was  a  voluntary  under- 
taking on  his  part,  with  a  full  knowledge  of  the  risks  incident  to  the 
employment ;  and  the  loss  was  sustained  by  means  of  an  ordinary 
casualty,  caused  by  the  negligence  of  another  servant  of  the  company. 
Under  these  circumstances,  the  loss  must  be  deemed  to  be  tlie  result 

1  See  Winterbottom  v.  Wright,  10  M,  &  W.  109;  Milligan  v.  Wedge,  12  Ad.  & 
E.  737.  — Rep. 


SECT.  II.J    FARWELL  V.    BOSTON,  ETC.  RAILROAD  CORP.         791 

of  a  pure  accident,  like  those  to  which  all  men,  in  all  employments,  and 
at  all  times,  are  more  or  less  exposed  ;  and  like  similar  losses  from 
accidental  causes,  it  must  rest  where  it  first  fell,  unless  the  plaintiff  has 
a  remed}-  against  the  person  actually  in  default ;  of  which  we  give  no 
opinion. 

It  was  strongly  pressed  in  the  argument,  that  although  this  might  be 
80,  where  two  or  more  servants  are  employed  in  the  same  department 
of  duty,  where  each  can  exert  some  influence  over  the  conduct  of  the 
other,  and  thus  to  some  extent  provide  for  his  own  security  ;  yet  that 
it  could  not  apply  where  two  or  more  are  employed  in  different  depart- 
ments of  duty,  at  a  distance  from  each  other,  and  where  one  can  in  no 
degree  control  or  influence  the  conduct  of  another.  But  we  think  this 
is  founded  upon  a  supposed  distinction,  on  which  it  would  be  extremely 
difficult  to  establish  a  practical  rule.  When  the  object  to  be  accom- 
plished is  one  and  the  same,  when  the  employers  are  the  same,  and  the 
several  persons  employed  derive  their  authority  and  their  compensation 
from  the  same  source,  it  would  be  extremely  difficult  to  distinguish 
what  constitutes  one  department  and  what  a  distinct  department  of 
duty.  It  would  vary  with  the  circumstances  of  every  case.  If  it  were 
made  to  depend  upon  the  nearness  or  distance  of  the  persons  from 
each  other,  the  question  would  immediateh*  arise,  how  near  or  how  dis- 
tant must  the}'  be,  to  be  in  the  same  or  diflerent  departments.  In  a 
blacksmith's  shop,  persons  working  in  the  same  building,  at  different 
fires,  may  be  quite  independent  of  each  other,  though  only  a  few  feet 
distant.  In  a  ropevvalk,  several  may  be  at  work  on  the  same  piece  of 
cordage,  at  the  same  time,  at  man}'  hundred  feet  distant  from  each 
other,  and  beyond  the  reach  of  sight  and  voice,  and  yet  acting  to- 
gether. 

Besides,  it  appears  to  us,  that  the  argument  rests  upon  an  assumed 
principle  of  responsibilit}'  which  does  not  exist.  The  master,  in  the 
case  supposed,  is  not  exempt  from  liabilit}',  because  the  servant  has 
better  means  of  providing  for  his  safet}',  when  he  is  employed  in  imme- 
diate connection  with  those  from  whose  negligence  he  might  suffer ;  but 
because  the  imjyUed  cojitract  of  the  master  does  not  extend  to  indem- 
nify the  servant  against  the  negligence  of  an}'  one  but  himself;  and  he 
is  not  liable  in  tort,  as  for  the  negligence  of  his  servant,  because  the 
person  suffering  does  not  stand  towards  him  in  the  relation  of  a 
stranger,  but  is  one  whose  rights  are  regulated  by  contract  express  or 
implied.  The  exemption  of  the  master,  therefore,  from  liability  for  the 
negligence  of  a  fellow-servant,  does  not  depend  exclusively  upon  the 
consideration  that  the  servant  has  better  means  to  provide  for  his  own 
safety,  but  upon  other  grounds.  Hence  the  separation  of  tlie  emplo\'- 
ment  into  different  departments  cannot  create  that  liability,  when  it 
does  not  arise  from  express  or  im[)lied  contract,  or  from  a  responsibility 
created  by  law  to  third  persons,  and  strangers,  for  the  negligence  of  a 
servant. 

A  case  may  be  put  for  the  purpose  of  illustrating  this  distinction. 


792  FAKWELL   V.    BOSTON,    ETC.    RAILROAD    CORP.         [CHAP.  VI. 

Suppose  the  road  had  been  owned  by  one  set  of  proprietors  whose  duty 
it  was  to  keep  it  in  repair  and  liave  it  at  all  times  read}'  and  in  fit  con- 
dition for  the  running  of  engines  and  cars,  taking  a  toll,  and  that  the 
engines  and  cars  were  owned  by  another  set  of  proprietors,  pajung  toll 
to  the  proprietors  of  the  road,  and  receiving  compensation  from  passen- 
gers for  their  carriage  ;  and  su[)pose  the  engineer  to  suffer  a  loss  from 
the  negligence  of  the  switch-tender.  We  are  inclined  to  the  opinion 
that  the  engineer  might  have  a  remed\'  against  the  railroad  corporation  ; 
and  if  so,  it  must  be  on  the  ground  that  as  between  the  engineer  em- 
plo3ed  by  the  proprietoi's  of  the  engines  and  cars,  and  the  switch-tender 
employed  by  the  corporation,  the  engineer  would  be  a  stranger,  between 
whom  and  the  corporation  there  could  be  no  privity  of  contract ;  and 
not  because  the  engineer  would  have  no  means  of  controlling  the  con- 
duct of  the  switch-tender.  The  responsibilit}'  which  one  is  under  for 
the  negligence  of  his  servant,  in  the  conduct  of  his  business,  towards 
third  persons,  is  founded  on  another  and  distinct  principle  from  tliat  of 
implied  contract,  and  stands  on  its  own  reasons  of  policy.  The  same 
reasons  of  policy,  we  think,  limit  this  responsibility  to  the  case  of 
strangers,  for  whose  security  alone  it  is  established.  Like  consider- 
ations of  policy  and  general  expedienc}'  forbid  the  extension  of  the 
principle,  so  far  as  to  warrant  a  servant  in  maintaining  an  action 
against  his  employer  for  an  indemnity  which  we  think  was  not  contem- 
plated in  the  nature  and  terms  of  the  emplojment,  and  which,  if  estab- 
lished, would  not  conduce  to  the  general  good. 

In  coming  to  the  conclusion  that  the  plaintiff,  in  the  present  case,  is 
not  entitled  to  recover,  considering  it  as  in  some  measure  a  nice  ques- 
tion, we  would  add  a  caution  against  any  hasty  conclusion  as  to  the  ap- 
plication of  til  is  rule  to  a  case  not  full}'  within  the  same  principle.  It 
may  be  varied  and  modified  by  circumstances  not  appearing  in  the  pres- 
ent case,  in  which  it  appears  that  no  wilful  wrong  or  actual  negligence 
was  imputed  to  the  corporation,  and  where  suitable  means  were  fur- 
nished and  suitable  persons  employed  to  accomplish  the  object  in  view. 
We  are  far  from  intending  to  say  that  there  are  no  implied  warranties 
and  undertakings  arising  out  of  the  relation  of  master  and  servant. 
Whether,  for  instance,  the  employer  would  be  responsible  to  an  engineer 
for  a  loss  arising  from  a  defective  or  ill-constructed  steam  engine : 
Whether  this  would  depend  upon  an  implied  warranty  of  its  goodness 
and  suflScienc}-,  or  upon  the  fact  of  wilful  misconduct,  or  gross  negli- 
gence on  the  part  of  the  emi)loyer,  if  a  natural  person,  or  of  the  su- 
perintendent or  immediate  representative  and  managing  agent,  in 
case  of  an  incorporated  company  —  are  questions  on  which  we  give  no 
opinion.  In  the  present  case  the  claim  of  the  plaintiff  is  not  put  on 
the  ground  that  the  defendants  did  not  furnish  a  sufficient  engine,  a 
proper  railroad  track,  a  well-constructed  switch,  and  a  person  of  suit- 
able skill  and  experience  to  attend  it ;  the  gravamen  of  the  complaint 
is,  that  that  person  was  chargeable  with  negligence  in  not  changing  the 
Bwitch,  in  the  particular   instance,   by  means  of  which  the  accident 


SECT.  II.]         FARWELL    V.    BOSTON,   ETC.    RAILROAD   CORP.  793 

occurred,  by  which  the  plaintiff  sustained  a  severe  loss.  It  ouglit,  per- 
haps, to  be  stated,  in  justice  to  the  person  to  whom  this  neghgcnce  is 
imputed,  that  the  fact  is  strenuously  denied  by  the  defendants,  and  lias 
not  been  tried  b}'  the  jury.  By  consent  of  the  parties,  this  fact  was 
assumed  without  trial,  in  order  to  take  the  opinion  of  the  whole  court 
upon  the  question  of  law,  whether,  if  such  was  the  fact,  the  defendants, 
under  the  circumstances,  were  liable.  Upon  this  question,  supposing 
the  accident  to  have  occurred,  and  the  loss  to  have  been  caused,  by  the 
negligence  of  the  person  employed  to  attend  to  and  change  the  switch, 
in  his  not  doing  so  in  the  particular  case,  the  court  are  of  opinion  that 
it  is  a  loss  for  wliich  the  defendants  are  not  liable,  and  that  the  action 
cannot  be  maintained.  Plaintiff  nonsuit.^ 

1  Ace:  Hutchinson  o.  York,  5  Exch.  343  (1850);  Wigmore  v.  Jay,  5  Exch.  354 
(1850). 

In  Bartonshill  Coal  Co.  v.  Reid,  3  Macq.  266,  282-284  (1858),  Lord  Cuanworth 
said  :  — 

"  Where  an  injury  is  occasioned  to  any  one  by  the  negligence  of  another,  if  the 
person  injured  seeks  to  charge  with  its  consequences  any  person  other  than  him  who 
actually  caused  the  damage,  it  lies  on  the  person  injured  to  show  that  the  circum- 
stances were  such  as  to  make  some  other  person  responsible.  In  general  it  is  sufficient 
for  this  purpose  to  show  that  the  person  whose  neglect  caused  the  injury  was  at  the 
time  when  it  was  occasioned  acting,  not  on  his  own  account,  but  in  the  course  of  liis 
employment  as  a  servant  in  the  business  of  a  master,  and  that  the  damage  resulted 
from  the  servant  so  employed  not  having  conducted  his  master's  business  with  due 
care.  In  such  a  case  the  maxim  '  Resjwudeat  superior '  prevails,  and  the  master  ia 
responsible. 

"  Thus,  if  a  servant,  driving  his  master's  carriage  along  the  highway,  carelessly 
runs  over  a  bystander,  or  if  a  gamekeeper  employed  to  kill  game  carelessly  fires  at  a 
hare  so  as  to  shoot  a  person  passing  on  the  ground,  or  if  a  workman  employed  by  a 
builder  in  building  a  house  negligently  throws  a  stone  or  brick  from  a  scaffold,  and 
BO  hurts  a  passer-by  ;  —  in  all  these  cases  (and  instances  might  be  multiplied  indefi- 
nitely) the  person  injured  has  a  right  to  treat  the  wrongful  or  careless  act  as  tlie  act 
of  tiie  master :  Qui  Jlicit  per  alitiin  facit  perse.  If  the  master  himself  had  driven  liis 
carriage  improperly,  or  fired  carelessly,  or  negligently  thrown  the  stone  or  brick,  he 
would  have  been  directly  responsible,  and  the  law  does  not  permit  him  to  escape  lia- 
bility liecause  the  act  complained  of  was  not  done  with  his  own  hand.  He  is  consid- 
ered as  bound  to  guarantee  third  persons  against  all  hurt  arising  from  the  carelessness 
of  himself  or  of  those  acting  under  liis  orders  in  the  course  of  his  business.  Third 
persons  cannot,  or  at  all  events  may  not,  know  whether  the  particular  injury  com- 
plained of  was  the  act  of  the  master  or  the  act  of  his  servant.  A  person  sustaining 
injury  in  any  of  the  modes  I  have  suggested  has  a  right  to  say,  'I was  no  party  to 
your  carriage  being  driven  along  the  road,  to  your  shooting  near  the  public  highway, 
or  to  your  being  engaged  in  building  a  house.  If  you  choose  to  do,  or  cause  to  be 
done,  any  of  these  acts,  it  is  to  you,  and  not  to  your  servants,  I  must  look  for  redress 
if  mischief  happens  to  me  as  their  consequence.'  A  large  portion  of  the  ordinary  acts 
of  life  are  attended  with  some  risk  to  third  persons,  and  no  one  has  a  right  to  involve 
others  in  risks  without  their  consent.  This  consideration  is  alone  sufficient  to  Justity 
the  wisdom  of  the  rule  which  makes  the  person  by  whom  or  by  whose  orders  these 
risks  are  incurred  responsible  to  third  persons  for  any  ill  consequences  resulting  from 
want  of  due  skill  or  caution 

"  But  do  the  same  principles  apply  to  the  case  of  a  workman  injured  by  the  want 
of  care  of  a  fellow-workman  engaged  together  in  the  same  work  1  I  think  not. 
When  the  workman  contracts  to  do  work  of  any  particular  sort,  he  knows,  or  ought 
to  know,  to  what  riaka  be  is  exposiufi:  hipaaeli  •-  ba  knows,  if  auch  be  the  nature  of  the 


794    GILLSHANNON  V-    STONY  BROOK  RAILROAD  CORP.   [CHAP.  VI. 


GILLSHANNON  v.    THE  STONY  BROOK  RAILROAD 
CORPORATION. 

Supreme  Judicial  Coukt  ob^  Massachusetts.     1852. 

[10  Cash.  228.] 

Action  on  the  case  for  injuries  sustained  b}'  the  plaintiff,  a  laborer  in 
the  employment  of  the  defendants,  by  the  negligence  of  their  servants 
and  agents.  It  was  tried  in  this  court  before  Bigelow,  J.,  by  whom  the 
evidence  was  reported  for  the  consideration  of  the  whole  court.  From 
this  evidence  it  appeared  that  the  plaintiff  was  a  common  laborer, 
employed  in  repairing  the  defendants'  road-bed,  at  a  place  several  miles 
from  his  residence.  Each  morning  and  evening,  he  rode  with  other 
laborers  to  and  from  the  place  of  labor  on  the  gravel  train  of  the 
defendants.  This  was  done  with  the  consent  of  the  company,  and  for 
mutual  convenience  ;  no  compensation  being  paid,  directly  or  indirectly 
by  the  laborers,  for  the  passage,  and  the  company  being  under  no 
contract  to  convey  the  laborers  to  and  from  their  work. 

While  thus  on  the  way  to  their  work  on  one  occasion,  a  collision 
took  place  with  a  hand-car  on  the  track,  through  the  negligence  of 
those  having  charge  of  tlie  gravel  train,  as  the  plaintiff  contended,  and 
he  was  thrown  off  and  run  over  by  the  gravel  train,  for  which  injury 
this  action  was  brought.  The  plaintiff  had  no  charge  or  care  over  the 
gravel  train,  and  there  was  some  evidence  that  the  gravel  train  was 
not  sufficiently  supplied  with  brakemen.  If  upon  these  facts  the  jury 
would  be  justified  in  finding  a  verdict  for  the  plaintiff,  the  case  was  to 
stand  for  trial ;  otherwise  the  plaintiff  to  become  nonsuit. 

J3.  F.  Butler  {J.  G.  Abbott  with  him),  for  the  plaintiff. 

T.  Wenttoorth  {G.  F.  Farley  with  him),  for  the  defendants. 

Dewey,  J.  If  the  relation  existing  between  these  parties  was  that 
of  master  and  servant,  no  action  will  lie  against  the  defendants  for  an 
injury  received  by  the  plaintiff  in  the  course  of  that  service,  occasioned 
by  the  negligence  of  a  fellow-servant.  Farwell  v.  Boston  and  Worces- 
ter Railroad,  4  Met.  49  ;  Hayes  v.  Western  Railroad,  3  Cush.  270. 

It  was  attempted  on  the  argument  for  the  plaintiff  to  take  the  case 
out  of  the  rule  stated  in  those  cases,  upon  the  ground  that  the  nature 
of  the  employment  of  these  servants  was  different,  the  plaintiff  being 
employed  as  a  laborer  in  constructing  the  railroad  bed,  and  not  engaged 
in  any  duty  connected  with  running  the  trains,  and  so  not  engaged  in 

risk,  that  want  of  care  on  the  part  of  a  fellow-workman  may  be  injurious  or  fatal  to 
him,  and  that  against  such  want  of  care  his  employer  cannot  by  possibility  protect 
him.  If  such  want  of  care  should  occur,  and  evil  is  the  result,  he  cannot  say  that  he 
does  not  know  whether  the  master  or  the  servant  was  to  hlame.  He  knows  that  the 
blame  was  wholly  that  of  the  servant.  He  cannot  say  the  master  need  not  have  en- 
gaged in  the  work  at  all,  for  he  was  party  to  its  being  undertaken." 
The  principal  case  is  reprinted  in  3  Macq.  316.  —  Ed. 


SECT.  II.]  ASHWOliTII    V.    STANWIX.  795 

any  common  enterprise.  The  case  of  Albro  v.  Agawam  Canal  Co.,  6 
Cush.  75,  seems  to  be  adverse  to  these  views,  and  goes  strongly  to 
sustain  the  defence. 

It  was  also  urged  that  the  plaintiff  was  not  in  the  employment  of  the 
defendants  at  the  time  the  injury  was  received,  or  that  he  might  prop- 
erly be  considered  as  a  passenger,  and  the  defendants,  as  respects  him, 
were  carriers  for  hire.  But  as  it  seems  to  us,  in  no  view  of  the  case 
can  this  action  be  maintained.  If  the  plaintiff  was  b}'  the  contract  of 
service  to  be  carried  by  the  defendants  to  the  place  for  his  labor,  then 
the  injury  was  received  while  engaged  in  the  service  for  which  he  was 
emplo3ed,  and  so  falls  witliin  the  ordinary  cases  of  servants  sustaining 
an  injury  from  the  negligence  of  other  servants.  If  it  be  not  properly 
inferable  from  the  evidence  that  the  contract  between  the  parties  actu- 
all}^  embraced  this  transportation  to  the  place  of  labor,  it  leaves  the 
case  to  stand  as  a  permissive  privilege  granted  to  the  plaintiff,  of  which 
he  availed  himself,  to  facilitate  his  labors  and  service,  and  is  equally 
connected  with  it,  and  the  relation  of  master  and  servant,  and  therefore 
furnishes  no  ground  for  maintaining  this  action. 

How  does  the  case  differ  from  that  suggested  at  the  argument  by  the 
counsel  for  the  defendants,  who  supposed  a  case  where  the  business 
for  which  the  part}'  is  employed,  is  that  of  cutting  timber,  or  standing 
wood,  and  the  servant  receives  an  injury  in  his  person  on  the  wa}'  to 
the  timber-lot,  by  the  overturning  of  the  vehicle  in  which  he  is  carried, 
b}'  the  negligence  or  careless  driving  of  another  servant?  There  is  no 
liabilit}-  on  the  part  of  the  master  in  such  a  case. 

It  seems  to  the  court,  that  upon  the  evidence  offered  in  the  present 
case,  the  plaintiff  was  not  entitled  to  a  verdict,  and  the  nonsuit  should 
stand .  I^la  intiff  n  onsu  it.  ^ 


ASH  WORTH  V.  STANWIX  and  WALKER. 

Queen's   Bench.     1861. 

[3  E.  i^-  E.  701.] 

Declaration.  That  defendants  were  possessed  of  a  certain  coal  pit, 
wherein  there  was  a  shaft ;  and  that  plaintiff  was  lawfully  employed  in 
the  said  pit  at  the  bottom  of  the  said  shaft ;  and  in  which  said  pit  a  cer- 
tain corf  was  used  by  defendants  for  the  purpose  of  raising  coal  from 
the  said  pit  to  the  mouth  of  the  said  shaft ;  yet  defendants  so  negligently 
guarded  the  mouth  of  the  said  shaft,  and  so  carelessly  used  and  man- 
aged the  said  corf,  and  took  so  little  care  of  a  certain  plate  or  rail  of 
defendants  at  the  mouth  of  the  said  shaft,  that,  by  reason  of  the  care- 

1  Ace:  Tunney  v.  Midland  Railway  Co.,  L.  U.  1  C.  P.  291  (1861);  Vick  ;-.  N.  Y. 
C.  &  H.  R.  Railroad  Co.,  9.5  N.  Y.  267  (1884) ;  McGuirck  v.  Shattuck,  160  Mass.  45 
(1893). 

Contra:   O'Donnell  v.  Allegheny  Valley  Railroad  Co.,  59  I'a.  239  (1868).  — Ed. 


796  ASHWORTII   V.    STANWIX.  [CHAP.  VL 

lessness,  &c.,  of  defendants  the  said  plate  or  rail  fell  down  the  said 
shaft,  and  struck  plaintiff  on  the  head  with  great  force  and  violence, 
and  fractured  his  skull ;  whereby  plaintiff  became,  was  and  is  per- 
manently injured,  &g. 

Pleas.     1.  Not  guilt}'.     2.  Not  possessed.     Issue  thereon. 

At  the  trial  before  Blackburn,  J.,  at  the  Durham  Spring  Assizes, 
1860,  it  appeared  that  the  two  defendants  were  lessees  of  a  coal  pit, 
and  were,  in  that  respect,  in  partnership  together.  The  plaintiff  was 
a  pitman  emplo3'ed  in  the  pit  by  them.  On  the  da}'  when  the  accident 
happened  he  was  so  employed,  and  the  defendant  Walker  was  acting 
as  banksman  at  the  mouth  of  the  shaft.  For  the  purpose  of  emptying 
the  corves  as  they  came  up  full  of  coal  from  the  pit,  there  was  a  short 
tramway  made  of  the  usual  rails  or  plates.  The  banksman's  duty  was 
to  receive  the  full  corf  as  it  came  up,  to  place  it  on  a  tram  which  trav- 
elled upon  the  tramway,  and  to  hook  on  the  corf  which  was  to  go  down 
empty.  There  was  evidence  that  one  of  the  tramplates  was  loose,  and 
it  appeared  that  while  the  defendant  Walker  was  acting  as  banksman, 
and  after  he  had  been  told  of  the  insecure  state  of  this  tramplate,  it  fell 
down  the  pit  and  caused  severe  injury  to  the  plaintiff,  who  was  stand- 
ing at  the  bottom  of  the  shaft.  The  defendant  Walker  was  clearly 
guilty  of  negligence  ;  but  it  was  not  shown  that  Stanwix,  who  was 
absent  at  the  time  of  the  accident,  knew  that  the  tramplate  was  loose. 

The  jury  found  a  verdict  for  the  plaintiff  as  against  Walker,  and  by 
the  direction  of  the  learned  Judge  a  verdict  for  the  defendant  Stanwix  ; 
leave  being  reserved  to  the  plaintiff"  to  move  to  enter  a  verdict  against 
both  defendants. 

Manistij  had  obtained  a  rule  calling  on  the  defendant  Stanwix  to 
show  cause  why  a  verdict  should  not  be  entered  for  the  plaintiff  against 
both  the  defendants,  on  the  ground  that  there  was  evidence  to  go  to 
the  jury  upon  which  they  might  reasonably  have  found  a  verdict  for  the 
plaintiff  against  Stanwix,  as  well  as  against  Walker. 

Ovei'end  showed  cause. ^ 

Manisty  and  Davison,  contra.  Car.  adv.  vult. 

Crompton,  J.,  now  delivered  the  judgment  of  the  Court.  The  ques- 
tion to  be  determined  in  this  case  is,  whether  the  defendant  Stanwix, 
being  co-proprietor  with  the  other  defendant.  Walker,  of  a  mine,  is 
jointly  liable  with  him  for  an  injury  sustained  by  the  plaintiff,  a  work- 
man in  their  common  employ,  through  the  negligence  of  the  defendant 
Walker.  The  facts  are  such  that,  if  the  defendant  Walker  had  been 
simply  the  fellow-workman  of  the  plaintiff,  the  case  would  have  come 
within  the  principle  that  a  servant  sustaining  injury  from  the  negligence 
of  a  fellow-servant  engaged  in  the  same  employment,  cannot  recover 
against  the  common  master.    The  present  case  would  then  have  been  quite 

1  In  the  course  of  this  argument,  Cockburx,  C.  J.,  asked  :  "  Can  a  servant  be 
supposed  to  contemplate  the  peculiar  risk  of  an  injury  caused  by  the  negligence  of 
his  master  while  acting  as  a  fellow-servant  1  "  —  Ed. 


SECT.  II.]  ASHWORTH    V.    STANWIX.  797 

analogous  to  that  of  Bartonsbill  Coal  Company  r.  Reid,  3  McQ.  Sc. 
App.  Ca.  266.  But  the  present  case  is  distinguishable  from  the  class  of 
cases  which  have  been  referred  to,  in  the  important  particular  that  the 
defendant  Walker,  although  in  fact  engaged  jointly  with  the  plaintiff  in 
the  work  of  the  mine,  was  also  a  co-proprietor,  and,  as  such,  one  of 
the  plaintiff's  masters;  and  the  question  is,  whether  this  circumstance 
takes  the  case  out  of  the  before-mentioned  rule,  and  calls  for  the  appli- 
cation of  a  different  principle.  We  are  of  opinion  that  it  does,  and  that 
the  plaintiff  is  entitled  to  hold  the  defendant  Stanwix  responsible  for 
the  negligence  of  his  co-proprietor  and  partner.  The  doctrine  that  a 
servant,  on  entering  the  service  of  an  employer,  takes  on  himself,  as  a 
risk  incidental  to  the  service,  the  chance  of  injury  arising  from  the  negli- 
gence of  fellow-servants  engaged  in  the  common  employment,  has  no 
application  in  the  case  of  the  negligence  of  an  employer.  Though  the 
chance  of  injury  from  the  negligence  of  fellow-servants  may  be  sup- 
posed to  enter  into  the  calculation  of  a  servant  in  undertaking  the 
service,  it  would  be  too  much  to  say  that  the  risk  of  danger  from  the 
negligence  of  a  master,  when  engaged  with  him  in  their  common  work, 
enters  in  like  manner  into  his  speculation.  From  a  master  he  is  entitled 
to  expect  the  care  and  attention  which  the  superior  position  and 
presumable  sense  of  dutv  of  the  latter  ought  to  command.  The  relation 
of  master  and  servant  does  not  the  less  subsist  because,  by  some 
arrangement  between  the  joint  masters,  one  of  them  takes  on  himself 
the  functions  of  a  workman.  It  is  a  fallacy  to  suppose  that  on  that 
account  the  character  of  master  is  converted  into  that  of  a  fellow 
laborer.  Though  engaged  w'ith  the  plaintiff  in  a  common  emploj'ment, 
Walker  did  not  the  less  remain  the  master  of  the  plaintiff,  and  the 
partner  of  the  defendant  Stanwix.  This  being  so,  it  follows  that  Stan- 
wix must  be  liable  in  respect  of  the  negligence  through  which  injury 
has  arisen  to  the  plaintiff,  as  the  relation  of  partner  subsisted  between 
Walker  and  Stanwix  ;  and  as  the  negligence  was  a  matter  within  the 
scope  of  a  common  undertaking  we  think  that  Stanwix  is  equally  liable 
with  Walker.  That  a  partner  is  liable  for  the  negligence  of  his  copart- 
ner when  engaged  in  the  business  of  the  partnership  is  not  only  clear 
in  principle,  but  is  established  bv  the  case  of  Moreton  r.  Hordern,  4  B. 
&  C.  223  (E.  C.  L.  R.  vol.  10),  in  this  Court,  where  two  proprietors  of 
a  stage-coach  were  held  liable  with  a  third  for  the  negligence  of  the 
latter,  bj-  whom  the  coach  had  been  driven.  Now  it  has  never  been 
doubted  that  for  personal  negligence  of  the  master,  whereb}-  injury 
is  occasioned  to  the  servant,  the  master  will  be  liable.  Personal  neg- 
ligence is  clearly  established  against  Walker;  and,  it  being  admitted 
that  the  defendant  Stanwix  was  his  coproprietor  and  partner,  the  latter 
must  be  held  to  be  jointh'  responsible  in  respect  of  such  negligence, 
and  is  therefore  liable  in  this  action.  The  rule  must  be  made  absolute 
to  enter  the  verdict  against  him,  as  well  as  the  other  defendant. 

Mule  absolute. 


798  MORGAN   V.   VALE   OF   NEATH   RAILWAY    CO.        [CHAP.   VL 


MORGAN  V.  THE  VALE   OF  NEATH  RAILWAY  COMPANY. 
Exchequer  Chamber.     1865. 
[L.  R.    1  Q.  D.  149.] 

Appeal  from  the  decision  of  the  Court  of  Queen's  Bench,  discharging 
a  rule  to  set  aside  a  nonsuit  and  enter  a  verdict  for  the  plaintiff. 

The  declaration  stated  that  the  plaintiff  was  lawfully  employed  doing 
repairs  to  an  engine-shed  of  the  defendants,  and  that  the  defendants, 
by  their  servants,  so  negligently,  improperly,  and  unskilfully-  managed 
an  engine  of  the  defendants,  which  was  being  turned  on  a  turn-table 
close  to  the  shed,  that  the  steam-engine  was  driven  against  and  struck 
a  ladder,  by  which  the  scaffolding  on  which  the  plaintiff  was  standing 
was  in  part  supported,  and  caused  the  scaffolding  to  fall,  and  the  plain- 
tiff to  be  thrown  to  the  ground,  whereby,  &c. 

Plea,  not  guilt}-. 

On  the  trial,  before  AVilde,  B.  ,  at  the  Glamorganshire  Summer 
Assizes,  1863,  it  appeared  that  the  plaintiff  was  a  carpenter,  and  in 
December,  1862,  was  in  the  employment  of  the  railwa}-  company  at 
weekly  wages.  The  duties  of  the  carpenters  in  the  emplo3-raent  of  the 
company  are  to  perform  all  carpenter's  work  they  may  be  directed  to 
do  by  the  inspector  of  the  line  for  the  general  purposes  of  the  company. 
On  the  23rd  of  December  the  plaintiff  was  emploj-ed  by  the  defendants 
to  do  certain  carpenter's  work  on  the  roof  of  an  engine-shed  situate  at 
the  Neath  Station  of  the  defendants'  railwa}',  for  which  purpose  it  was 
necessary  that  a  scaffold  should  be  erected  near  a  turn-table,  on  and  by 
means  of  which  the  defendants'  engines  and  carriages  were  moved  and 
turned  b}-  their  porters  and  servants.  The  scaffold  was  erected  in  the 
proper  position  to  enable  the  plaintiff  to  do  the  work,  and  was  in  all 
respects  proper  and  sufficient  as  regards  materials  and  construction  for 
the  purposes  for  which  it  was  required.  The  plaintiff  had  monnted  the 
scaffold,  and  was  standing  on  it  doing  his  work  as  a  carpenter  on  the 
roof  of  the  shed,  when  some  porters  employed  by  the  defendants,  who 
were  engaged  in  shifting  a  locomotive  engine  by  means  of  the  turn- 
table, allowed  the  engine  to  project  so  far  be30nd  the  table  that,  in 
turning  the  engine,  the  end  of  it  struck  against  and  displaced  a  ladder 
which  was  one  of  the  supports  of  the  scaffold.  The  scaffold  gave  wa}-, 
and  the  plaintiff  was  thrown  from  it  to  the  ground,  and  received  severe 
bodily  injuries.  The  occurrence  was  caused  solely  by  the  negligence 
and  carelessness  of  the  defendants'  servants  in  the  management  of  the 
engine  and  turn-table,  and  was  not  in  any  way  attributable  to  contribu- 
tory negligence  on  the  part  of  the  plaintiff  or  of  any  other  persons. 

It  was  objected  on  the  part  of  the  defendants  that  the  plaintiff  and 
the  persons  through  whose  negligence  the  injury  was  caused  being  alike 
the  servants  of  the  company,  and  the  injury  having  occurred  when  they 
were  severally  engaged  in  doing  the  company's  work,  the  defendants 


SECT.  II.]  MORGAN   V.   VALE    OF   NEATH   RAILWAY   CO.  799 

were  not  liable.  On  behalf  of  the  plaintiff  it  was  contended  that  he  and 
the  servants  who  caused  the  injury  were  engaged  in  different  operations 
and  distinct  departments  of  worlv,  and  that  there  was  no  such  commu- 
nity of  employment  between  him  and  those  servants  as  to  exempt  the 
defendants  from  liability  for  the  negligent  act  which  caused  the  injur\'. 

The  learned  judge  nonsuited  the  plaintiff,  giving  him  leave  to  move 
to  enter  a  verdict  for  the  agreed  sum  of  £250. 

A  rule  having  been  afterwards  obtained  accordingly,  on  the  ground 
that  there  was  no  such  common  employment  as  to  exempt  the  defend- 
ants from  liability,  cause  was  shown  in  Easter  Terra,  1864,  and  after 
time  taken  to  consider,  the  Court  of  Queen's  Bench  discharged  the 
rule.^ 

Macna-nuira  {G.  B.  Hughes  with  him),  for  the  appellant,  the 
plaintiff.^ 

II.  8.  Giffard^  Q.  C.  {Lanyoa  with  him),  was  not  heard  for  the 
defendants. 

Erle,  C.  J.  I  am  of  opinion  that  the  judgment  should  be  affirmed. 
The  plaintiff  was  employed  by  the  railway-  company  to  do  carpenter's 
work,  and  he  was  so  employed  on  the  line  of  railway,  and  the  wrong- 
doers were  the  porters  also  in  the  employment  of  the  compan}*,  who, 
in  shifting  a  steam  engine  on  a  turn-table  close  to  the  shed  on  which 
the  plaintiff'  was  working,  managed  the  business  so  negligently  that  the 
engine  struck  against  the  ladder  which  parth-  supported  the  plaintiff's 
scaffolding,  and  threw  the  plaintiff  violently'  to  the  ground.  The  plain- 
tiff and  the  porters  were  engaged  in  one  common  employment,  and 
were  doing  work  for  the  common  object  of  their  masters,  viz.,  fitting 
the  line  for  traffic.  On  a  suggestion  put  b}'  my  brother  Pigott,  Mr. 
Macnamara  was  driven  to  an  answer,  which  (if  it  did  not  admit  that  it 
was  the  same  thing)  showed  that  he  had  difficult}'  in  establishing  any 
distinction  whether  the  plaintiff  were  working  close  by,  or  whether  he 
were  employed  on  the  turn-table  itself.  I  think  it  can  make  no  differ- 
ence ;  and  the  rule  which  exempts  the  master  from  liabilit}'  to  a  servant 
for  injury  caused  by  the  negligence  of  a  fellow-servant  applies.  The 
principle  on  which  this  rule  was  established,  as  applicable  to  the  present 
case,  is  very  clearly  put  by  Blackburn,  J.,  in  the  judgment  to  which 
Mellor,  J.  agreed  in  the  court  below  :  ^  "  There  are  many  cases  where 
the  immediate  object  on  which  the  one  servant  is  employed  is  very 
dissimilar  from  that  on  which  the  other  is  employed,  and  3-et  the  risk  of 
injury  from  the  negligence  of  the  one  is  so  much  a  natural  and  neces- 

1  See  the  case  reported  in  the  court  below,  33  L.  J.  (Q.  B.)  260;  5  B.  &  S.  570. 
—  Rep. 

2  111  the  course  of  this  argument  Pigott,  B.,  asked,  "  Wouhl  it  have  made  any  dif- 
ference if  the  plaintiff  had  been  engaged  at  work  on  the  turn-table?  "  Counsel 
answered,  "  Possibly  it  might  not."  In  the  course  of  the  same  argument  Pollock, 
C.  B.,  said,  "  It  may  be  observed  that  the  Chief  Justice's  judgment  in  the  court  below 
seems  to  make  no  distinction  between  a  carpenter  regularly  employed  to  do  work  on 
the  railway,  and  one  employed  only  for  a  casual  job."  —  Ed. 

«  See  5  B.  &  S.  580;   33  L.  J.  (Q.  B.)  265.  —Ebp. 


800  KYAN   V.    CHICAGO,   ETC.    RAILWAY   CO.  [CHAP.  VI. 

sary  consequence  of  the  employment  which  the  other  accepts,  that  it 
must  be  inchided  in  the  risks  which  are  to  be  considered  in  his  wages. 
I  tliink  that,  whenever  tlie  employment  is  such  as  necessarily  to  bring 
the  person  accepting  it  into  contact  with  the  traftic  of  the  line  of  a  rail- 
way', risk  of  injury  from  the  carelessness  of  those  managing  that  trafllc 
is  one  of  the  risks  necessarily  and  naturally  incident  to  such  an  employ- 
ment, and  within  the  rule."  The  cases  on  this  subject  are  extremely 
numerous,  and  have  been  closely  examined,  both  here  and  in  the  court 
below,  and  I  could  not  make  the  matter  clearer  by  going  through  tliem. 
It  is  sufficient  to  say  that  I  entirely  agree  with  the  judgment  of  the  court 
below,  that  the  facts  of  the  case  bring  it  within  the  rule  exempting  the 
master  from  liabilit}'. 

Pollock,  C.  B.  I  only  wish  to  add  a  single  sentence.  It  appears  to 
me  that  we  should  be  letting  in  a  flood  of  litigation,  were  we  to  decide 
the  present  case  in  favor  of  the  plaintiff.  For,  if  a  carpenter's  employ- 
ment is  to  be  distinguished  from  that  of  the  porters  employed  by  the 
same  company,  it  will  be  sought  to  split  up  the  employees  in  every  large 
establishment  into  different  departments  of  service,  although  the  com- 
mon object  of  their  employment,  however  different,  is  but  the  further- 
ance of  the  business  of  the  master;  yet  it  might  be  said,  with  truth, 
that  no  two  had  a  common  immediate  object.  This  shows  that  we  must 
not  over  refine,  but  look  at  the  common  object,  and  not  at  the  common 
immediate  object. 

WiLLEs,  Byles,  and  Keating,  JJ.,  and  Bramvs^ll,  Channell,  and 
PiGOTT,  BE.,  concurred.  Judgment  affirmed. 


RYAN   V.   THE  CHICAGO   AND   NORTHWESTERN 
RAILWAY   CO. 

Supreme  Court  of  Illinois.     1871. 

[60  ///.  171.] 

Appeal  from  the  Superior  Court  of  Cook  County  ;  the  Hon.  Joseph 
Gary,  Judge,  presiding. 

Messrs.  Fuller  &  Smith,  for  the  appellant. 

Mr.  B.  C.  Cook,  for  the  appellees. 

Mr.  Justice  Walker  delivered  the  opinion  of  the  Court :  — 

This  was  an  action  on  the  case,  brought  by  appellant,  in  the 
Superior  Court  of  Chicago,  against  appellees,  to  recover  for  injuries 
received  by  being  struck  by  one  of  the  engines  of  the  company.  Ap- 
pellant was  employed  b}'  the  company  as  a  common  laborer  at  their 
carpenter  shop  in  Chicago.  And  on  the  22d  day  of  February,  1868, 
after  the  six-o'clock  whistle  had  sounded  to  release  the  hands  from 
labor,  appellant  started  for  his  home.  He,  in  going  there,  crossed 
appellees'  railway  tracks,  and  in  doing  so  was  struck  by  one  of  their 


SECT.  TI.]  RYAN   V.    CHICAGO,   ETC.    RAILWAY   CO.  801 

engines  and  severely  injured.  Appellant  testifies  that  on  approaching 
the  track,  he  looked  along  in  both  directions,  and  no  engine  was  in 
sight,  and  the  engine  which  struck  him  came  upon  him  from  the  oppo- 
site side  of  the  tank-house  on  a  curve  on  the  main  track  ;  that  no  bell 
was  ringing  or  whistle  sounding,  and  the  engine  ran  at  an  unusual  rate 
of  speed. 

On  the  other  side,  witnesses  swore  that  the  bell  was  ringing,  the 
engine  was  moving  at  a  rate  of  speed  not  exceeding  five  miles  an  hour, 
and  that  the  track  was  straight,  and  the  engine  could  be  seen  at  least 
two  hundred  feet  in  the  direction  from  which  it  came.  P2ach  party 
prepared  and  asked  instructions,  which  the  court  refused  to  give,  but, 
on  his  own  motion,  gave  this :  — 

"If  the  plaintiff  was  in  the  service  of  defendants,  and  his  route  to 
and  from  his  work  was  over  the  tracks  of  the  defendants'  railway,  then 
the  law  is  established  in  this  State  that  he  took  upon  himself  the  risk 
of  being  hurt  b^-  passing  engines  on  such  tracks,  and  the  defendants 
are  not  liable  to  him  for  any  injury  that  he  received  from  such  an 
engine,  whether  it  was  run  negligently  or  not,  and  the  verdict  should 
be  for  the  defendants." 

The  giving  of  which  is  assigned  for  error. 

This  instruction  took  from  the  jury  all  question  of  negligence,  and 
onl}-  left  to  their  consideration  the  fact  whether  or  not  he  was  in  the 
employment  of  the  railroad  company. 

In  Chicago  &  Alton  Railroad  Co.  v.  Keefe,  47  111.  110,  we  said, 
"That  the  duties  of  an  employee  of  a  railwa}-  company  may  be  so 
entirely  distinct  from  all  occupation  upon  its  trains  as  to  leave  him  at 
liberty  to  pursue  the  same  legal  remedies  for  injuries  received  while  a 
passenger,  may  ver}-  probably  be  true.  If,  for  example,  a  bookkeeper 
in  a  raihva}"  office  should  be  injured,  while  travelling  as  a  passenger, 
through  the  carelessness  of  the  engineer,  the  reasons  upon  which  the 
rule  above  referred  to  are  founded,  might  well  be  held  to  have  no 
application.  But  the  employment  of  the  person  injured  cannot  be  con- 
sidered distinct,  in  an}'  sense,  leading  to  this  result,  if  of  a  character 
to  make  him  a  part  of  the  force  employed  upon  the  train.  If  his  du- 
ties attach  him  to  the  train  as  a  part  of  its  personal  equipment,  then 
his  branch  of  service  is  not  independent,  in  any  such  sense,  as  to 
exempt  him  from  the  general  rule  in  regard  to  co-employees,  in  case 
he  should  be  injured  through  the  carelessness  of  the  engineer.  .  .  . 
In  the  case  before  us,  the  plaintiff  was  a  part  of  the  working  force  of  a 
construction  train,  and  had  been  for  some  weeks  passing  with  it  to  and 
fro,  and,  although  his  duties  were  distinct  from  those  of  the  engineer, 
yet  they  were  fellow-servants  of  the  compan}',  and  both  engaged  in  the 
same  geiieral  duty,  io  vf'it:  the  operating  a  construction  train,  though 
each  worked  in  his  own  department." 

In  the  case  of  the  Chicago  &  Northwestern  Railroad  Co.  v.  Swett, 
45  111.  197,  we  held  that  the  doctrine  that  an  action  would  not  lie  by  a 
servant  against  a  railroad  compan}-  for  an  injury  sustained  through  the 

61 


802  RYAN   V.   CHICAGO,    ETC.    RAILWAY   CO.  [CHAP.  VL 

default  of  another  servant,  applies  only  to  cases  where  the  injur}-  com- 
plained of  occurs  without  the  fault  of  the  company,  either  in  the  act 
which  caused  the  injury  or  the  employment  of  the  person  who  caused 
it.  Again,  in  the  case  of  The  Schooner  Norway  v.  Jensen,  52  111.  373, 
it  was  held  that  a  master  is  responsible  to  his  servant  for  an  injur}' 
received  from  defects  in  the  structure  or  machiner}'  about  which  his 
services  are  rendered,  which  the  master  knew  or  should  have  known. 
And  the  Illinois  Central  Railroad  Co.  v.  Welch,  52  111.  183,  announces 
the  same  rule.  In  this  last  case  it  was  said  that  a  person  engaging 
in  such  a  service  assumes  the  ordinary  perils  of  railroad  life,  and  the 
special  dangers  peculiar  to  the  condition  of  the  road,  so  far  as  he  is 
aware  of  their  existence,  and  his  exposure  to  them  would  be  his 
voluntary  act. 

In  the  case  of  Illinois  Central  Railroad  Co.  y.  Jewell,  46  111.  99,  it 
was  said,  where  the  engine  driver  was  a  reckless  and  wild  runner, 
which  was  known  to  the  compan}-,  that  the  company  were  liable  for 
injuries  resulting  therefrom  to  a  fellow-servant.  From  these  decisions 
it  will  be  seen  that  the  rule  that  a  servant  cannot  recover  against  a 
I'ailroad  company,  for  injuries,  has  its  exceptions.  And  those  excep- 
tions depend  upon  the  negligence  of  the  master  in  furnishing  insufficient 
structures  or  machinery  with  which  the  servant  is  required  to  perform 
his  duties,  or  in  employing  incompetent  servants  with  whom  the  servant 
is  associated  in  the  discharge  of  his  duties.  Or  where  a  servant  is 
employed  in  a  different  department  of  the  general  service  from  that  of 
those  whose  negligence  produced  the  injury,  as  was  said  in  the  case 
of  The  Chicago  «fe  Alton  Railroad  Co.  v.  Keefe,  supra.  And  the  same 
principle  is  announced  in  the  case  of  Lalor  v.  Chicago,  Burlington,  & 
Quincy  Railroad  Co.,  52  111.  401.  Thus,  it  is  seen,  the  rule  is  not 
inflexible  and  without  exception. 

No  employee  of  the  road  could  have  been  farther  removed  from 
those  who  produced  the  injury  than  appellant.  He  was  in  no  wise 
connected  with  those  who  had  control  of  the  engine.  He  was  engaged 
in  a  different  department  of  the  business  of  the  company  ;  as  wholly 
disconnected  with  the  business  of  operating  the  engines  and  trains  as 
was  an}"  mechanic  or  laborer  in  the  city.  It  is  true  he  was  employed 
and  paid  by  the  same  company,  but  otherwise  a  stranger  to  the  engi- 
neers' department.  The  reason  of  the  rule,  when  it  is  applicable,  is, 
that  each  servant  engaged  in  the  same  department  of  business,  for  the 
safety  of  all,  shall  be  interested  in  securing  a  faithful  and  prudent  dis- 
charge of  duty  by  his  fellow-servants,  or  that  they  shall  report  to  the 
master  any  delinquencies  of  those  engaged  with  them  in  the  perform- 
ance of  duty.  But  the  reason  does  not,  nor  can  it,  apply  where  one 
servant  is  employed  in  a  separate  and  disconnected  branch  of  the 
business  from  that  of  another  servant.  A  person  employed  in  the 
carpenter  shop  cannot  be  required  to  know  of  the  negligence  of  those 
entrusted  with  running  trains  or  handling  engines  on  the  road.  And 
hence  the  reason  of  the  rule  fails. 


SECT.  II.]  GANNON   V.    HOUSATONIC    RAILROAD    CO.  803 

The  employment  of  the  engine  driver,  and  appellant  as  a  laborer 
in  the  earpenter  shop,  is  so  dissimilar  and  separate  from  each  other, 
that  appellant  should  not  be  held  responsible  for  the  negligence  of  the 
former,  in  such  a  case,  the  company  should  be  held  liable  for  gross 
negligence  of  the  servant  who  causes  the  injuiy.  But  the  instruction 
in  this  case  took  that  question  entirely  from  the  jur^-,  and  should  not 
have  been  given.     It  entirely  ignored  the  exception  to  the  rule. 

There  was  evidence  which  was  conllicting  on  the  question  of  gross 
negligence,  and  it  was  the  province  of  the  jury,  and  not  of  the  court,  to 
pass  upon  it  and  say  which  position  should  be  regarded. 

For  this  error,  the  judgment  of  the  court  below  must  be  reversed, 
and  the  cause  remanded.  Judyment  reversed.^ 


EDMUND  GANNON  v.  HOUSATONIC  RAILROAD  COMPANY. 

Supreme  Judicial  Court  of  Massachusetts.     1873. 

[112  Mass.  234.] 

Tort.  Trial  in  the  Superior  Court  before  Allen,  J.,  who  after  a 
verdict  for  the  plaintiff  allowed  the  defendant's  bill  of  exceptions  as 
follows  :  — 

"  This  is  an  action  brought  by  the  plaintiff  to  recover  damages  for 
the  loss  of  the  services  of  liis  wife,  for  the  loss  of  her  society,  and  for 
monej'  paid  for  medical  attendance  upon  her,  in  consequence  of  an 
injury  which  she  sustained  while  a  passenger  on  the  defendant's  cars, 
b}'  the  running  of  the  cars  from  the  track  bj'  reason  of  a  switch  which 
was  misplaced  b}'  the  negligence  of  the  employee  of  the  company,  who 
had  it  in  charge. 

"It  was  in  evidence  that  the  plaintiff  was  at  the  time  of  the  injury 
to  his  wife  an  employee  and  servant  of  the  defendant  company,  in  the 
capacity  of  a  laborer  on  the  track  of  the  road,  and  so  actually  employed 
at  the  time  of  the  injury  to  his  wife.  The  defendant  requested  the 
court  to  rule  as  follows :  '  If  tlie  wife  of  the  plaintiff  was  injured  in 
consequence  of  the  cars  running  off  the  track  by  reason  of  the  switch 
being  misplaced  through  the  negligence  of  the  employee  and  servant  of 
the  company  in  charge  of  the  switch,  the  plaintiff  being  at  the  same 
time  an  employee  and  servant  of  the  company,  and  in  i|:s  actual 
employment  as  a  laborer  on  the  track  at  the  time  of  said  injury,  he  can 
recover  no  damages  for  the  loss  of  the  society  and  services  of  his  wife, 
nor  for  any  damages  sustained  bj-  him  growing  out  of  and  consequent 
upon  the  injury  to  his  wife.' 

1  Arc:  ChicaEjo  &  Northwestern  Kailroad  Co.  ik  Moranda,  9.3  111.  302  (1879); 
Chicago  &  Alton  Railroad  Co.  v.  O'Brien,  155  111.  630(1895).  But  see  Waller  v. 
South-Eastern  Ry.  Co.,  2  H.  &  C   102  (1863).  — Ed. 


804  GANNON    V.    HOUSATONIC    RAILROAD    CO.  [CHAP.  VI. 

"The  Court  declined  to  rule  as  requested,  and  instructed  the  jury 
that  the  plaintiff  in  such  a  case  as  this  stood  as  if  not  an  employee  of 
the  road,  and  might  maintain  the  action." 

M.  Wilcox,  for  tlie  defendant. 

A.  J.  Waterman,  for  the  plaintiff. 

Colt,  J.  "We  are  referred  to  no  case  where  the  rule  which  exempts 
the  master  from  liability  for  injuries  received  through  the  negligence  of 
a  fellow-servant  has  been  held  to  defeat  the  plaintiffs  right  to  recover 
consequential  damages  for  an  injury  to  his  wife.  In  the  opinion  of  the 
court  the  rule  is  not  to  be  so  extended.  The  implied  contract  on  the 
part  of  the  servant  by  which  he  assumes  the  risk  of  the  negligence  of 
others,  has  reference  to  those  direct  injuries  to  which  he  is  exposed  in 
the  course  of  his  emplo^'ment.  Those  injuries  which  are  incident  to 
the  nature  of  his  employment,  he  is  presumed  to  have  contemplated, 
and  with  reference  to  his  exposure  to  them  to  have  fixed  the  compen- 
sation agreed  on.  In  other  respects  his  i-elations  to  his  emplo3'er 
remain  unchanged.  He  may  insist  on  the  performance  of  all  other 
duties,  whether  the}'  are  such  as  are  imposed  by  him  or  such  as  arise 
from  independent  contracts  express  or  implied. 

It  is  said  that  the  general  rule  which  exempts  the  master  from  lia- 
bilit}'  to  his  servant,  has  a  tendency  to  insure  the  safetj'  of  the  public 
by  increasing  his  care  and  fidelity,  and  that  the  public  polic}'  of  the 
rule  is  equally  applicable  here.  But  if  it  be  conceded  that  this  is  the 
true  foundation  of  the  rule,  its  bearing  is  too  remote  to  influence 
the  result  to  which  we  come  in  this  case. 

The  plaintiffs  wife  was  a  passenger,  and  the  defendant  corporation 
was  bound  to  discharge  the  duties  which  as  a  passenger  carrier  it  had 
assumed  towards  her.  The  injury  she  received  was  occasioned  b}-  no 
fault  of  the  plaintiff,  who  was  emplo^'cd  upon  the  track,  for  all  that 
appears  at  a  remote  point  on  the  road,  and  the  injuiy  was  from  a  mis- 
placed switch. 

The  husband  has  a  right  to  the  services  of  his  wife,  and  is  bound  to 
sustain  her  in  sickness  and  in  health.  Any  injuiy  inflicted  on  her 
which  diminishes  the  value  of  this  right,  or  increases  the  burden  of  this 
duty,  is  a  pecuniary  loss  to  him.  It  is  indemnit}'  for  this  loss  which  he 
here  claims.  And  the  fact  that  he  was  at  the  time  of  the  wife's  injur}' 
in  the  employment  of  the  corporation  cannot  be  permitted  to  defeat  his 
claim.  Exceptions  overruled. 


SECT.  IL]  packet   CO.   V.   MCCUE.  805 


PACKET  COMPANY  v.   McCUE. 

Sdpeeme  Court  of  the  United  States.     1873. 

[17  Wall  508.] 

Error  to  the  Circuit  Court  for  the  Eastern  District  of  Wisconsin. 
The  case  was  thus  :  — 

Patrick  McCue  was  a  common  laboring  man,  living  in  Prairie  du 
Chien,  Wisconsin,  and  employed  in  the  railroad  warehouse  in  that 
place.  On  the  evening  of  the  11th  of  Jul3-,  1868,  the  steamer  War 
Eagle,  owned  b}-  the  Northwestern  Packet  Compan\-,  arrived  at  the 
landing  in  Prairie  du  Chien  for  the  puipose  of  taking  freight  from  the 
warehouse.  Being  short  of  hands,  the  mate  of  the  boat  went  to  the 
warehouse,  and  there  employed  McCue  and  four  or  five  other  persons 
to  assist  in  carrying  freight  from  the  warehouse  and  putting  it  on  board 
the  boat.  This  employment  continued  about  two  hours  and  a  half,  at 
the  end  of  which  time  McCue  and  the  rest  were  told  to  go  to  "  the 
office  "  upon  the  boat  (the  packet  company  liaving  no  office  on  shore 
for  the  purpose  of  making  such  payments)  and  receive  their  pay. 

They  proceeded  there  accordingly,  were  paid,  and  then  started  to  go 
ashore.  As  McCue  was  going  ashore,  the  men  on  board  the  boat 
pulled  in  the  gangway  plank  while  he  was  on  it.  He  was  thus  thrown 
down  against  the  dock  and  injured,  and  a  few  days  afterwards  died 
from  the  injury  thus  received. 

Hereupon  Mar}'  McCue,  his  widow  and  administratrix,  brought  suit 
in  the  court  below,  under  a  statute  of  Wisconsin,  to  recover  damages 
for  the  injuries  which  he  had  sustained. 

The  narr.  alleged  that  McCue  had  never  before  been,  either  gener- 
ally or  at  intervals,  a  servant  of  the  packet  company,  and  that  at  the 
time  when  the  injuries  occurred  and  the  cause  of  action  accrued  he  was 
not  so ;  but  that  contrariwise  he  had  been  employed  bv  the  company 
to  work  for  it  on  this  occasion  alone,  and  •'  for  a  short  space  of  time, 
to  wit,  for  the  space  of  one  hour ;  "  that  this  time  had  elapsed ;  that 
the  work  had  been  done,  and  that  McCue  had  been  paid  for  it,  and 
that  after  all  this,  and  after  the  relation  of  master  and  servant  had 
thus  ceased,  and  McCue  was  attempting  to  get  off  the  boat,  and  using 
due  care,  &c. ,  "  the  defendant  and  its  agents  then  and  there,"  regard- 
less of  their  dut}-,  recklessl}-  and  without  any  reasonable  cause,  pulled 
in  and  from  under  his  feet,  &c.,  the  gangwa}-  plank,  &c. ,  by  which  he 
fell  and  was  injured,  &c. 

The  defendant  pleaded  not  guilt}'. 

There  was  no  doubt  from  the  evidence  that  McCue  was  without 
fault,  and  that  the  injuries  which  caused  his  death  were  owing  to  the 
reckless  carelessness  of  the  servants  of  the  packet  company. 

On  the  trial  it  appeared  that  INIcCue  had  before  been  occasionally 
emplo3ed  b}'  the  packet  company  in  the  same  way  in  which  he  had  now 


806  PACKET   CO.   V.    M«  CUE.  [CHAP.  VL 

been ;  but  there  did  not  seem  to  be  any  evidence  that  he  wus  in  their 
general  employment ;  and  this  was  the  first  time  in  the  year  18G8  in 
which  he  had  been  emplo3ed  in  this  sort  of  work  by  the  company. 

The  counsel  of  the  packet  company  insisted,  as  the  hiring  was  in  the 
warehouse,  as  McCue  had  proceeded  thence,  as  the  freight  was  to  be 
carried  thence,  and  as  the  packet  company  liad  no  office  on  shore  or 
anywhere  else  than  the  office  upon  the  boat,  where  MeCue  could  be 
paid,  that  his  relationship  to  his  employers  had  not  terminated  by  the 
simple  fact  of  liis  getting  his  money  at  the  office  on  the  boat,  but,  on 
the  contrary,  continued  uutil  he  got  back  to  the  warehouse,  or  at  least 
and  rather  until  he  had  got  off  the  boat ;  that  uutil  such  latter  time  he 
was  the  servant  of  the  company,  and  that  tlie  injuries  done  to  him 
having  been  done  to  him  b}'  his  fellow-servants  of  the  compan}'  he 
could  not  recover  from  their  common  master,  the  packet  compau}'. 

The  counsel  of  the  companj'  therefore  requested  the  court  to  charge 
according  to  tliis  view,  and  as  matter  of  law  upon  the  conceded  facts 
that  the  plaintiff  could  not  recover. 

The  court  declined  so  to  charge,  and  charged  thus :  — 

"  McCue  had  been  occasionally  employed  by  the  defendants'  boats 
in  the  way  in  which  he  was  in  this  instance  ;  but  there  does  not  seem 
to  be  any  evidence  to  show  that  he  was  in  their  general  employment, 
and  in  this  particular  year  it  would  appear  that  this  was  the  first  time 
he  had  been  employed  in  this  wa}',  so  that  he  was  employed  for  a 
special  purpose,  which  being  accomplished,  the  agreement  or  contract 
^ceased. 

"  The  contract  was  made  in  the  warehouse,  the  freight  was  there, 
the  execution  of  the  contract  began  there,  and  as  soon  as  the  last  por- 
tion of  the  freight  was  carried  on  board  of  the  boat,  the  contract 
termiuated,  unless,  indeed,  it  continued  because  he  was  to  be  paid  off 
and  had  the  right  to  go  ashore  from  the  boat,  and  to  be  provided  with 
the  proper  means  of  going  ashore,  so  that  in  one  sense  it  is  true,  I 
suppose,  that  the  contract  began  on  shore  and  was  terminated  by  the 
act  of  going  on  shore  b}'  McCue. 

["  At  the  same  time  it  may  also  be  said  that  as  soon  as  he  did  the 
last  work  he  was  required  to  do,  and  was  paid  off,  that  he  was  after 
that  his  own  master  with  respect  to  the  contract  made  between  them  ; 
that  then  it  was  optional  with  him  to  do  just  as  he  chose. 

"Therefore  it  will  be  left  to  the  jury  to  say  whether  there  was  the 
relation  of  servant  and  principal  or  master,  as  between  the  deceased 
McCue  and  the  defendant,  at  the  time  of  the  injury.  And  I  am  not 
now  prepared  to  sa}^  even  if  it  were  true  that  the  relation  of  servant 
and  master  did  subsist,  that  then  the  action  could  not  be  maintained, 
and  I  would  like  to  have  you  find,  gentlemen  (inasmuch  as  it  ma}-  be  a 
material  point,  and  of  service  hereafter),  whether,  as  a  matter  of  fact,  there 
was  or  not  a  termination  of  the  employment  between  the  company  and 
the  deceased  prior  to  or  at  the  time  of  the  injur}'.  The  counsel  for  the 
defendant  insists  that  this  is  a  question  of  law  under  the  conceded 


SECT.  II.]  PACKET    CO.    V.   McCUE.  807 

facts  ;  that,  inasmuch  as  soon  as  INIcCue  was  paid  off  he  immediately 
proceeded  to  go  on  shore  and  was  in  the  act  of  going  on  shore,  lliat 
constituted  a  part  of  tlie  service.  But  as  the  court  thinks,  for  the 
reason  that  as  soon  as  paid  off,  McCue  was  his  own  master,  and  had 
the  entire  control  and  disposition  of  himself,  to  remain  on  board  or  go 
asliore,  just  as  he  pleased,  in  one  aspect  it  may  be  said  that  the  service 
was  terminated.  Tliat  question,  however,  the  court  leaves  to  tlie  jur3', 
and  asks  them  to  iind  what  the  fact  is,  from  the  evidence,  on  this 
point. 

"  Then,  gentlemen,  leaving  the  questions  of  fact  to  the  jury,  it  will 
be  for  the  jury  to  say  under  the  evidence  whether  the  plaintiff'  has  made 
out  his  case  as  stated  in  the  declaration.  If  the  service  was  terminated 
and  this  injury  was  the  result  of  the  negligence  of  the  servants  of  the 
defendant,  then  the  plaintiff  may  recover."] 

The  jury  having  found  a  verdict  of  S2,800  for  the  plaintiff,  and  judg- 
ment having  gone  accordingly,  the  packet  compan}'  brought  tlie  case 
here  on  exceptions  to  the  refusal  to  charge  as  requested,  and  to  those 
parts  of  the  charge  witliin  brackets,  as  given. 

3Tr.  J.  P.  C.  Cottrill.,  for  the  plaintiff  in  error  (a  brief  of  Jfr.  J. 
W.  Gary  being  filed  on  the  same  side). 

Messrs.  Mottheir  ILde  Carpenter  and  G.  W.  Lolin,  contra. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

It  is  insisted  on  the  part  of  the  plaintiff  in  error  that  a  master  is  nol 
responsible  to  a  servant  for  injuries  caused  b^'  the  negligence  or  mis- 
conduct of  a  fellow-servant  engaged  in  the  same  general  business. 
Whether  this  general  proposition  be  true  or  not,  it  is  not  necessary  to 
determine  in  the  state  of  this  record.  It  is  conceded,  if  the  employ- 
ment of  INIcCue  by  the  company  terminated  before  the  injury  com* 
plained  of  was  suffered,  that  the  company  is  liable,  and  this  the  jury 
have  found  to  be  the  fact. 

But  it  is  said  it  was  the  province  of  the  court,  and  not  the  jury,  to 
determine  tlie  point  of  time  at  which  the  service  was  ended  ;  that  as 
the  facts  were  undisputed,  it  was  a  question  of  law,  and  the  court 
should  have  told  the  jurj'  the  relation  of  master  and  servant  subsisted 
when  the  accident  happened. 

We  do  not  think  so.  One  of  the  theories  on  which  the  suit  was 
prosecuted  was  that  McCue's  special  employment  had  ceased  when  he 
was  injured.  This  theory  was  resisted  b}-  the  defence,  and  the  court, 
not  taking  upon  itself  to  determine  as  an  absolute  proposition  when 
the  employment  terminated,  left  it  to  the  jury  to  find  how  the  fact  was. 
This  ruling,  in  our  opinion,  was  correct.  It  was  for  the  jury  to  say, 
from  the  nature  of  the  employment,  the  manner  of  engaging  the  hands, 
the  usual  mode  of  transacting  such  a  business,  and  the  other  circum- 
stances of  the  case,  whether  the  service  had  or  had  not  ceased  at  the 
time  of  the  accident.  Tlie  point  was  submitted  fairly  to  the  jur}-,  with 
no  more  comments  than  the  evidence  justified.  It  was  argued  by  the 
plaintiff  in  error  that  the  employment  of  necessity  terminated  on  the 


808  SMITH   ";.    STEELE.  [CHAP.  VL 

land,  because  il  was  there  McCue  was  engaged  to  do  the  work,  and  he 
had  the  right  to  be  i)rovided  with  the  proper  means  of  reaching  it  from 
the  boat.  On  the  coutriuy,  the  defendant  in  error  contended  tlie 
special  service  ceased  when  McCue  had  finished  his  work  and  was  paid 
off;  that  after  this  he  was  not  subject  to  the  control  or  direction  of  the 
officers  of  the  boat,  but  at  liberty  to  stay  on  tlie  boat  or  go  off  as  he 
pleased.  The  jur}'  took  this  latter  view  of  the  relation  of  the  parties, 
and  we  cannot  say  that  they  did  not  decide  correctlj'.  At  any  rate, 
their  decision  on  a  question  of  fact  is  not  subject  to  review  in  this 
court.  The  defence  at  the  best  was  a  narrow  one,  and  in  our  opinion 
more  technical  than  just.  Judgment  affirmed. 


SMITH,  Executrix  of  J.  G.  SMITH,  v.  STEELE  and  ototos. 
Queen's  Bench.     1875. 
[Z.  R.  10  Q.  B.  125.] 

At  the  trial  before  Lush,  J.,  at  the  Sussex  spring  assizes,  1874,  the 
facts  stated  in  tlie  judgment  of  the  court  were  proved,  and  the  jury 
found  a  verdict  for  the  plaintifl",  Avith  leave  to  move  to  enter  a  verdict 
for  the  defendants,  or  a  nonsuit.^ 

Blackburn,  J.  This  was  an  action  under  Lord  Campbell's  Act  to 
recover  damages  in  respect  of  the  death  of  the  plaintiff's  testator,  who 
was  her  husband. 

At  the  trial  before  mv  Brother  Lush  the  following  facts  were  proved: 
The  defendants  were  the  owuers  of  a  vessel  lying  in  dock,  about  to 
proceed  on  a  voyage  in  which  the  employment  of  a  pilot  was  compulsory. 
The  testator  was  a  pilot  who  was  engaged  for  that  voyage.  He  (in 
compliance  with  what  it  was  proved  was  always  the  practice  of  pilots) 
went  on  board  the  vessel  in  dock  to  give  directions  to  the  crew  when 
getting  the  vessel  out  of  dock.  Whilst  doing  so  a  boat,  which  had  been 
negligently  slung,  fell  on  him  and  killed  him.  The  defendants  did  not 
personally  interfere  in  the  matter.  From  the  way  the  case  comes  before 
us  on  a  point  reserved,  we  must  take  it  as  a  fact  that  the  accident  was 
occasioned  b}'  the  negligence  of  the  servants  of  the  defendants  in  sling- 
ing the  boat,  without  contributory  negligence  on  the  part  of  the  deceased. 
Leave  was  reserved  to  enter  the  verdict  for  the  defendants  or  a  nonsuit 
on  the  ground  that  the  defendants  were  not  responsible  for  the  negli- 
gence of  their  servants  under  the  circumstances  proved  in  evidence.  A 
rule  nisi  was  obtained  accordingly,  against  which  cause  was  shown  in 
this  terra  before  my  Lord  Chief  Justice,  my  Brothers  Mellor,  Lush, 
and  myself,  when  the  case  was  very  ably  argued  by  Mr.  Will'is  for  the 
plaintiff,  and  by  Mr.  Thesiger  and  Mr.  Wood  Hill  in  support  of  the 
rule,  and  the  court  took  time  to  consider  its  judgment. 

*  The  reporter's  statemeut  of  the  pleadings  has  been  omitted.  —  E». 


SECT.  II.]  SMITH   V.    STEELE.  809 

The  law  is,  to  a  certain  extent,  determined  by  the  case  of  Indermaur 
V.  Dames. ^  There  is  an  obligation  on  the  part  of  the  occupier  of  prop- 
erty, whether  fixed  or  movable,  to  those  who,  at  his  invitation,  express 
or  implied,  come  on  that  property,  to  take,  by  himself  and  servants, 
reasonable  care  that  the  person  so  coming  shall  not  be  exposed  to  unu- 
sual danger.  And  that  obligation  extends  to  the  workmen  sent  by  a 
tradesman  to  repair  part  of  the  machinery-.  Mr.  Justice  Willes,  in 
delivering  judgment  in  that  case,  after  referring  to  the  undisputed  law 
that  there  was  such  an  obligation  on  the  part  of  a  shopkeeper  to  his 
customer,  and  that  there  was  no  such  obligation  to  a  servant,  proceeds 
to  give  the  reason  of  the  judgment  in  these  terms  :  "  The  class  to  which 
the  customer  belongs  includes  persons  who  go,  not  as  mere  volunteers, 
or  licensees,  or  guests,  or  servants,  or  persons  whose  employment  is 
such  that  danger  may  be  considered  as  bargained  for,  but  who  go  upon 
business  which  concerns  the  occupier,  and  upon  his  invitation  express 
or  implied."  ^  .  .   . 

In  the  present  case  the  accident  happened  before  the  actual  com- 
mencement of  the  voyage ;  but  it  is  clear  that  the  deceased  was  on  board 
onl}-  because  he  was  going  on  that  voyage  as  a  pilot,  and  under  the 
same  terms  as  to  risk  as  if  the  voyage  had  begun.  "We  think,  therefore, 
that  the  question  in  the  present  case  is  reduced  to  this,  whether  there  is 
between  the  owners  of  a  ship  and  tlie  pilot  whom  they  are  compelled  to 
employ  an  implied  contract  that  the  pilot  shall  take  upon  himself  the 
risk  of  injury  from  the  negligence  of  the  shipowners'  servants.  Inder- 
maur V.  Dames  decides  that  there  is  no  such  implied  contract  between 
the  owner  of  machinery  and  those  who  are  sent  by  their  masters  to 
repair  it.  And  we  think  that  there  is  no  such  implied  contract  in  the 
case  of  a  pilot.  The  law  as  to  pilots  is  now  regulated  b}-  the  Merchant 
Shipping  Acts.  The  pilot  is,  by  17  &  18  Vict.  c.  104,  s.  365,  subject 
to  a  penalt}'  if  he  refuses  to  take  charge  of  the  ship.  Tlie  master  is,  by 
s.  353,  bound  under  a  penalty  to  employ  the  pilot.  The  rate  of  remuner- 
ation is,  by  s.  358,  neither  to  be  more  nor  less  than  the  fixed  rate, 
though  both  parties  should  agree.  And  by  s,  388  the  owner  is  not  to 
be  liable  for  the  pilot  as  his  servant.  By  a  subsequent  enactment,  35 
&  36  Vict.  c.  73,  s.  9,  power  is  given  b}-  by-laws  to  modify  s.  358  so 
far  as  to  allow  an}'  pilot  or  class  of  pilots  any  rate  less  than  the  rate  for 
the  time  being  demandable  by  law  ;  but  no  power  is  given  to  enable  a 
pilot  to  demand  more.  He  cannot,  therefore,  make  any  special  bargain 
to  receive  larger  pay  in  consideration  of  his  taking  this  risk  upon  him. 
An  ordinary  servant  has,  as  Lord  Cairns  points  out  (at  least  theoreti- 
cally), the  power  of  choosing  whether  he  will  enter  into  the  employment 
of  a  master  who  does  not  agree  to  act  personally  in  the  management  of 
his  business,  or  as  an  alternative  to  be  responsible  for  the  negligence  of 
those  he  employs.     The  pilot  has  no  such  choice  ;  he  must  conduct  the 

1  L.  R,  1  C.  P.  274  ;   affirmed  in  error,  L.  R.  2  C.  P.  311.  — Rep. 

2  Here  were  cited  Morgan  v.  Vale  of  Neath  Ry.  Co.,  ante,  p.  798,  and  Wilson  v. 
Merr,\ ,  jiost,  p.  842.  —  Eu. 


810  LOVELL   V.    HOWELL.  [CHAP.  VL 

ship  on  the  terms  fixed  by  the  statutes  which  regulate  pilotage  ;  and  we 
can  find  nothing  in  those  statutes  to  justify  the  conclusion  that  the  pilot 
is  to  take  upon  himself  the  risk,' 

We  therefore  think  that  the  rule  should  be  discharged. 

Rule  discharged} 


LOVELL   V.    HOWELL. 

Common  Pleas  Division.     1876. 

[1  C.  p.  D.  161.] 

The  declaration  stated  that  the  defendant  by  his  servants  so  negli- 
gently hoisted  up  certain  sacks  from  a  wagon  into  the  defendant's 
warehouse  that  one  of  the  sacks  fell  upon  the  plaintiff,  whereby  he  was 
thrown  down  and  hurt. 

Second  plea.  That  the  injury  was  committed  by  servants  of  the 
defendant,  and  solely  by  their  negligence,  and  not  by  the  negligence  of 
the  defendant  personally,  and  without  the  authority,  knowledge,  sanc- 
tion, or  consent  of  the  defendant ;  that  such  servants  were  reasonably 
fit  and  competent  to  be  employed ;  that  the  plaintiff  was  also  the 
servant  of  the  defendant  and  was  then  acting  with  the  first-mentioned 
servants  in  one  common  employment ;  and  that  the  defendant  was  not 
personally-  guilt}-  of  any  negligence.     Issue  thereon. 

The  cause  was  tried  before  Lindley,  J.,  at  the  sittings  in  London 
after  Trinit}- Term,  1875.  The  facts  were  as  follows:  The  plaintiff 
is  a  licensed  waterman  and  lighterman.  The  defendant  is  a  corn- 
merchant,  miller,  warehouseman,  and  wharfinger,  carrying  on  business 
at  Sufferance  Wharf  and  Providence  Wharf,  College  Street,  Belvedere 
Road,  Lambeth.  He  is  also  the  owner  of  several  barges.  The  plaintiff 
had  been  for  about  three  months  in  the  employ'  of  the  defendant  when 
the  accident  complained  of  took  place  ;  his  duty  being  to  attend  to  the 
mooring  and  unmooring  of  the  barges  when  the}-  were  brought  to  the 
premises  to  be  laden  or  unladen,  and  which  usualh'  occupied  him  for 
about  an  hour  and  a  half  before  and  after  each  high  tide,  and  for  which 
he  received  wages  of  24s.  per  week. 

About  fi  o'clock  in  the  evening  of  the  21st  of  October,  1874,  when  it 
was  quite  dark,  the  plaintiff  was  on  the  barges  preparing  for  his  night's 
duty,  which  would  not  commence  for  some  hours,  when  he  was  told 
that  the  defendant's  manager,  Barker,  wanted  him  at  the  office,  which 
was  in  the  street  at  the  other  side  of  the  warehouse,  and  to  which  he 
was  in  the  habit  of  going  to  receive  orders.  There  were  two  w-ays  of 
going  to  the  office  from  the  river  side,  viz.,  b}'  passing  bj-  means  of  a 
wherr}-  to  stairs  at  the  river  end  of  College  Street,  or  hy  stepping  from 

1  See  Bowcher  v.  Noidstrom,  1  Tannt.  568  (1809  );  General  Steam  Navigation  Co.  ». 
British  and  Colonial  Steam  Navigation  Co.,  L.  R.  4  Ex.  238  (Ex.  Ch.  1869). —  Ed. 


6KCT.  II.]  LOVELL   V.   HOWELL.  811 

the  barges  into  a  door- way,  and  thence  through  the  warehouse  to  the 
street ;  the  latter  being  the  way  which  the  plaintiff  usually  adopted. 
In  passing  from  the  warehouse  into  the  street  on  the  occasion  in  ques- 
tion, the  plaintiff  was  knocked  down  by  a  sack  of  peas  which  were 
being  hoisted  from  a  wagon  Ijy  means  of  a  crane  to  one  of  the  upper 
floors  of  the  warehouse,  the  rope  by  which  the  sack  was  being  hauled 
up  having  through  the  carelessness  of  the  defendant's  men  wiio  were  per- 
forming the  work  been  left  too  slack. 

Upon  this  state  of  facts  it  was  insisted  on  the  part  of  the  defendant, 
that,  inasmuch  as  the  injury*  complained  of  was  the  result  of  careless- 
ness on  the  part  of  persons  engaged  with  the  plaintiff  in  one  common 
employment,  the  master  was  not  responsible. 

The  learned  judge,  yielding  to  the  objection,  directed  a  verdict  to  be 
entered  for  the  defendant,  with  leave  to  the  plaintiff  to  move  to  enter  a 
verdict  for  him  for  £150,  agreed  damages,  if  the  court  should  be  of 
opinion  that  the  objection  was  untenable. 

J.  Broicii,  Q.  C,  and  IF.  G.  Harrison.,  showed  cause  against  a 
motion  for  judgment  pursuant  to  the  leave  reserved. 

Harris,  in  support  of  the  rule. 

Brett,  J.  We  must  take  the  facts  which  were  proved  in  this  case 
to  be  these :  The  plaintiff  was  in  the  service  of  the  defendant,  who 
carries  on  the  conjoined  business  of  a  corn-merchant,  miller,  ware- 
houseman, and  wharfinger,  upon  premises  abutting  on  one  side  on  the 
river  Thames,  but  which  premises  did  not  constitute  a  wharf  in  the 
ordinary  sense.  The  plaintiff's  duty  was  for  certain  wages  to  attend 
for  about  an  hour  and  a  half  before  and  an  hour  an  a  half  after  high- 
water  at  each  tide,  for  the  purpose  of  mooring  and  unmooring  the 
barges  wliich  came  to  the  warehouse  to  be  loaded  or  unloaded.  I  can- 
not gather  from  tlie  evidence  that  he  had  anytliing  to  do  with  assisting 
in  the  general  business  of  the  warehouse,  or  even  with  the  loading  or 
unloading  of  the  barges.  But  it  seems  to  me  that  it  was  proved  that 
the  going  from  the  barges  to  the  office  for  orders  was  an  habitual 
part  of  his  service,  and  that  the  only  way  to  get  there  (unless  by  water) 
was  to  go  nito  and  through  the  warehouse  and  thence  to  the  public 
street  through  a  door  over  which  was  a  crane  by  means  of  which  sacks 
of  flour  and  grain  were  loaded  and  unloaded  into  and  from  wagons. 
It  does  not  appear  whether  or  not  he  was  bound  by  the  terms  of  his 
original  hiring  to  go  to  the  office  for  orders  ;  it  is  enough  to  say  that  it 
had  become  his  usual  course  to  go  there  by  stepping  from  the  barges 
and  passing  through  the  warehouse.  That  being  so,  and  an  accident 
having  happened  to  him  by  the  negligence  of  other  servants  in  his 
master's  employ,  whilst  he  was  so  passing  througli  the  warehouse  to  the 
office,  the  question  is  whether  lie  can  recover  damages  for  it  against  his 
master.  Now,  I  decline  to  say,  because  I  feel  a  difficulty  in  under- 
standing or  defining  it,  what  is  the  precise  principle  on  which  the  im- 
munity of  the  master  in  these  cases  rests.  But  I  am  bound  bylaw  and 
by  the  authority  of  decided  cases  to  say  that  such  immunity  does  exist. 


812  LOVELL   V.    HOWELL.  [CHAP.  VI. 

If,  under  circumstances  substantially  similar  to  those  of  the  present  case, 
the  courts  have  held  that  the  plaintiff  cannot  recover,  it  is  impossible 
for  me  to  break  from  those  decisions.  Inasmuch,  therefore,  as  I  am 
unable  to  distinguish  from  this  the  cases  of  Morgan  v.  Vale  of  Neath 
Ey.  Co.,  L.  R.  1  Q.  B.  149,  and  Tunney  r.  Midland  Ry.  Co.,  L.  R. 
1  C.  P.  291,  I  feel  obliged,  however  much  I  regret  it,  to  decide 
against  the  plaintiff  upon  the  present  occasion. 

Archibald,  J.  I  must  confess  I  do  not  feel  so  much  difficulty  as  my 
Brother  Brett  does  in  deducing  from  the  authorities  the  principle  upon 
which  the  immunity  of  the  master  from  the  consequences  of  the  negli- 
gent acts  of  Ills  servants  in  these  cases  rests.  I  tliink  it  may  be  ex- 
pressed in  this  way:  When  a  man  enters  into  the  service  of  a  master, 
he  tacitly  agrees  to  take  upon  himself  to  bear  all  ordinary  risks  which 
are  incident  to  his  employment,  and,  amongst  others,  the  possibility  of 
injury-  happening  to  him  from  the  negligent  acts  of  his  fellow-servants 
or  fellow-workmen.  The  question  is,  whether  the  injury  to  the  plaintiff 
in  this  case  did  not  in  some  sense  arise  from  one  of  those  ordinary 
risks  of  the  service  he  was  engaged  in  which  must  or  ought  to  have 
been  in  his  contemplation  when  he  entered  into  it.  It  appears  upon 
the  evidence,  that,  though  it  was  no  part  of  the  plaintiff's  duty  to  assist 
in  the  general  work  of  the  warehouse,  as,  for  example,  in  the  raising  or 
lowering  sacks  to  or  from  the  upper  floors,  but  that  his  duty  was  con- 
fined to  the  care  and  management  of  the  craft  coming  to  the  premises, 
yet  it  seems  to  have  been  also  a  part  of  his  dut}-  to  go  to  the  office  for 
orders,  and  that  in  the  course  of  this  duty  he  would  have  to  pass 
through  the  warehouse  and  out  into  the  street  by  the  door  at  which  the 
process  of  lifting  the  sacks  from  the  wagon  was  carried  on,  where  he 
w^ould  necessarily  have  to  encounter  the  risk  of  injury  from  negligence 
of  others  ni  the  same  emplo}',  —  one  of  the  contemplated  risks  of  the 
service.  This  seems  to  me  to  bring  the  present  case  within  the  prin- 
ciple laid  down  in  Priestley  v.  Fowler,  3  M.  &  W.  1,  and  the  other  cases 
to  which  our  attention  has  been  drawn,  and  I  think  we  shall  do  much 
mischief  by  over-refining  upon  it.  I  entirely  agree  in  the  remarks  made 
by  Pollock,  C.  B.,  in  Morgan  v.  Vale  of  Neath  Ry.  Co.^  .  .  I  think  the 
evidence  here  show\s  that  this  plaintiff  brought  himself  as  clearly  within 
one  of  the  contemplated  risks  of  his  service  as  the  plaintiff  did  in  that 
case.  For  these  reasons,  I  think  that  the  verdict  for  the  defendant 
ought  to  stand. 

LiNDLEY,  J.  I  am  of  the  same  opinion.  Looking  at  the  nature  of 
the  pl:iintiff's  employment,  as  stated  b}'  himself,  it  seems  that  that 
included  the  going  through  the  warehouse  and  out  b}'  the  door  over 
which  the  sacks  were  being  hoisted.  It  is  true  there  was  another  wa}'  of 
going  from  the  barges  to  the  office,  viz.,  b}'  water  ;  but  that  was  not  the 
way  the  plaintifl^  was  in  the  habit  of  going.  Having  regard  to  the  rule 
iaid  down  by  numerous  authorities,  I  think  the  risk  in  question  was  one 

1  Here  was  quoted  a  passage  from  Morgan  v.  Vale  of  Neath  Ry.  Co.,  ante,  p.  798. 
—  Ed. 


BECT.  II.]        SWAINSON   V.    NORTH-EASTERN   RAILWAY   CO.  813 

to  which  the  plaintiff  tacitly  agreed  to  expose  himself  when  he  entered 
the  defendant's  service.  The  only  doubt  I  entertained  at  the  trial  was 
whether  the  plaintiff  was  at  the  time  of  the  accident  in  the  emplo}'  of 
the  defendant  at  all.  Mis  duty  did  not  call  him  to  the  premises  at  that 
time.  But  he  was  in  the  habit  of  going  occasionally  to  see  what  he 
would  have  to  do  in  the  course  of  the  night,  and  to  prepare  for  it. 
And,  being  there,  he  was  called  by  the  manager  to  the  office.  The 
accident  therefore  happened  whilst  he  was  employed  about  his  master's 
business.  Hule  discharged. 


SWAINSON  V.  THE  NORTH-EASTERN  RAILWAY  COMPANY. 

Exchequer  Division.     1877. 

Court  of  Appeal.     1878. 

[3  Ex.  D.  341.] 

The  plaintiff  sued  to  recover  damages  for  the  death  of  her  husband, 
who  was  killed  by  the  negligence  of  the  driver  of  one  of  the  defendants' 
engines. 

Waddt/,  Q.  C,  for  the  plaintiff. 

C.  Hussell,  Q.  C,  and  C.  Crompton,  for  the  defendants. 

Cvr.  ad>\  wit. 

The  judgment  of  tlie  court  (Pollock  and  Huddleston,  BB.)  was 
delivered  by 

Pollock,  B.^  Adjoining  Wellington  Street,  Leeds,  are  two  railwa}' 
stations,  the  one  belonging  to  the  Great  Northern  Railway  Compau}', 
and  the  other  to  the  North-Eastern  Railway  Company.  These  abut 
upon  each  other,  and  are  approached  from  the  south  b}'  lines  of  rails, 
two  of  which  belong  to  each  of  these  companies,  the  entrance  to  or 
exit  from  the  station  being  governed  by  signals  and  points,  which  are 
worked  by  signalmen  whose  duty  is  common  to  both  stations. 

The  deceased  man,  Swainson,  was  one  of  these  signalmen,  and  he  had 
acted  for  four  years  in  the  same  position.  He  was  engaged  and  paid 
b}'  the  Great  Northern  Railwa}-  Company',  and  wore  their  uniform,  and 
was  not  made  aware  at  the  time  of  his  appointment  that  he  was  a  joint 
servant,  but  in  fact  his  dut}'  was  to  attend  to  the  North-Eastern  trains 
as  well  as  the  Great  Northern  as  to  points  and  signals,  when  any  en- 
gines or  trucks  had  to  be  transferred  from  the  rails  of  one  company  to 
those  of  the  other ;  as  between  the  two  companies,  Swainson  was  one 
of  what  was  called  the  "-joint  station  staff,"  all  of  whom  were  engaged 
and  paid  by  the  Great  Northern  Railway  Company ;  the  cost  of  their 
salaries  was  treated  as  a  joint  charge,  and  borne  equally  b^'  the  two 
companies,  and  when  Swainson  received  his  wages  at  the  end  of  each 
week,  he  signed  a  pay  sheet,  which  was  headed,  "Great  Northern 
Railway  Traffic  Department  Pay  Bill,"  "Joint  Station  Staff." 

1  After  stating  the  nature  of  the  action.  —  Ed. 


814  SWAINSON    V.   NORTH-EASTERN   RAILWAY    CO.       [CHAP.  VI. 

On  the  7tb  of  May,  1875,  Swainson,  in  the  discharge  of  his  dut}-, 
was  standing  on  the  six-foot  space  between  the  Great  Northern  arrival 
and  the  North-Eastern  departure  lines.  A  North-Eastern  engine  came 
towards  the  station  on  the  Great  Northern  arrival  rails  with  some 
Great  Northern  coal  trucks,  and  Swainson  signalled  to  the  driver  to 
go  on  to  the  North-Eastern  departure  line.  The  driver  obeyed,  and 
went  on  to  that  line  until  he  passed  some  points,  when  he  reversed  his 
engine  and  backed  out  again,  having  a  van  before  the  engine,  which 
obscured  his  view  of  the  line.  Swainson  was  then  looking  in  the  other 
direction,  watching  a  train  coming  from  the  south,  and  failing  to  ob- 
serve the  engine  and  van  coming  out,  he  was  struck  b}-  the  step  of  the 
van,  knocked  down,  and  killed. 

Evidence  was  given  on  the  part  of  the  plaintiff  that  the  engine-driver 
had  not  turned  on  his  whistle  when  he  backed  out,  and  also  that  it  was 
unsafe  to  back  out  with  the  van  before  the  engine. 

At  the  close  of  the  case  my  Brother  Quain  left  two  questions  to  the 
jurj- :  1st,  was  there  negligence  on  the  part  of  the  driver  of  the  defend- 
ants' engine?  and,  2d,  was  there  contributory  negligence  on  the  part 
of  the  deceased  man,  Swainson? 

The  jury  answered  the  first  of  these  questions  in  the  affirmative,  and 
the  second  in  the  negative.  We  see  no  grounds  for  disturbing  this 
verdict  as  being  against  the  weight  of  evidence  upon  either  question. 
The  counsel  for  the  defendants  raised,  however,  a  further  point,  viz., 
that  the  driver  of  the  engine  and  Swainson  were  engaged  in  a  common 
employment,  and  that  the  risk  which  resulted  in  his  death  was  inci- 
dental to  that  employment,  the  consequences  of  which  he  had  under- 
taken. The  learned  judge  ruled  against  the  defendants  upon  this 
point,  but  reserved  leave  to  move,  the  court  having  power  to  draw 
inferences  of  fact. 

The  case  was  fully  and  ably  argued  before  us,  and  upon  the  facts 
and  finding  of  the  jury  it  is  clear  that  an  action  would  well  lie  against 
the  driver  of  the  engine,  by  whose  negligent  act  the  death  of  Swainson 
was  occasioned.  AVhether  the  relation  of  Swainson  to  the  defendants 
was  such  that  this  action  can  be  maintained  against  the  defendants  is 
a  question  the  solution  of  which  is  more  difficult,  and  requires  a  careful 
consideration  both  of  the  facts  proved  and  of  the  law  properly  appli- 
cable to  them. 

It  will  be  well,  in  the  first  place,  to  see  what  is  the  principle  affecting 
this  case,  which  can  be  gathered  from  authority.  Up  to  a  certain  point 
this  is  clear :  wherever  the  person  injured  and  he  by  whose  negligent 
act  the  injury  is  occasioned  are  engaged  in  a  common  employment  in 
the  service  of  the  same  master,  no  action  will  lie  against  the  master  if 
he  be  innocent  of  any  personal  negligence.  The  negligence  of  a  fellow- 
servant  is  taken  to  be  one  of  the  risks  which  a  servant,  as  between  him- 
self and  his  master,  undertakes  when  he  enters  into  the  service.^  .  .  . 

1  Citing  Priestley  v.  Fowler,  ante,  p.  773 ;  Hutchinson  v.  The  York,  Newcastle,  & 
Berwick  R.v.  Co.,  5  Ex.  343 ;    Wiggett  v.  Fox,  1 1   Ex.  832 ;    Wilson  v.  Merry,  pest, 


SECT.  II.]         SWAINSON   V.    NORTH-EASTERN    RAILWAY   CO.  815 

Dicta  are  to  be  found,  however,  in  some  of  the  cases,  which  tend  to 
suggest  that  the  principle  ought  to  be  applied  to  cases  in  which  the 
element  of  common  service  may  be  wanting.  There  is  great  difficulty 
in  so  holding,  because  wlien  it  is  said  that  the  servant  undertakes  the 
risk  of  the  negligent  acts  of  his  fellow-servant,  the  question  arises, 
"  Undertakes  to  whom  ?  "  and  the  proposition  must,  we  think,  be  lim- 
ited by  confining  the  undertaking  to  the  master  of  the  servant  who  is 
supposed  to  give  it,  and  that  it  cannot  reasonably  be  extended  to 
strangers,  or  those  who,  though  having  some  interest  in  a  joint  opera- 
tion, are  not  in  some  sort  the  master  of  the  person  injured.  It  is  not 
necessary,  in  the  view  which  we  take  of  this  case,  to  pursue  this 
further.^  .  ,  . 

The  deceased  man,  Swainson,  though  engaged  by  the  Great  North- 
ern Company  and  wearing  their  uniform,  was  one  of  a  joint  staff,  and 
for  four  years  had  received  his  weekly  wages  as  such  ;  he  was  there- 
fore practically  in  the  service  of  two  companies,  who  quoad  his  service 
and  employment  were  partners.  But  further  than  this,  as  was  said  by 
Lord  Colonsay  in  Wilson  v.  Merry,  L.  R.  1  H.  L.  Sc.  345,  "  we  must 
look  to  the  functions  the  party  discharges,  and  his  position  in  the  or- 
ganization of  the  force  employed,  and  of  which  he  forms  a  constituent 
part."  Referring,  then,  to  the  duties  of  Swainson,  and  the  ver}'  acts 
on  which  he  was  engaged  at  the  time  of  his  death,  the  evidence  shows 
that  the}-  were  not  performed  as  servant  of,  or  for  the  benefit  of,  one 
company  onl}',  but  were  essentially  necessar}'  for  the  common  busi- 
ness of  both,  namel}',  the  interchange  of  the  traffic  between  the  two 
stations. 

The  case,  therefore,  falls  within,  and  is  governed  b}',  the  principle 
that  where  there  is  common  employment  in  common  service,  the  master 
is  not  liable,  and  our  decision  must  be  for  the  defendants,  for  whom 
judgment  must  be  entered.  Judgment  for  the  defendants. 

The  plaintiff  appealed. 

Benjamin,  Q.  C,  and  JViUis,  Q.  C.  {T.  L.  Wilkinson  with  them),  for 
the  plaintiff. 

C.  Russell,  Q.  C,  and  C.  Crompton,  for  the  defendants. 

Willis,  Q.  C,  replied.  ■  Cur.  adv.  vult. 

Bramwell,  L.  J.  I  think  that  the  reasoning  of  the  judgment  in  the 
Exchequer  Division  shows  that  this  appeal  must  be  allowed ;  and  I  am 
inclined  to  surmise  that  the  facts  were  misconceived.  Tiie  principle 
governing  the  liability  of  a  master  ma}'  be  stated  in  the  following  man- 
ner :  he  is  liable  for  an  injury  done  to  a  stranger  by  his  servant  acting 
within  the  scope  of  the  latter's  authority,  because  the  stranger  has  had 
no  hand  in  the  choice  of  the  servant.     This  seems  a  sound  rule  of  law  ; 

p.  842;  Morgan  v.  Vale  of  Neath  Ry.  Co.,  ante,  p.  798 ;  Lovell  v.  Howell,  ante,  p.  810. 
—  Ed. 

1  Here  were  stated  Voss  v.  Lancashire  &  Yorkshire  Ry.  Co.,  2  H.  &  N.  728 ;  and 
"Warbnrton  r.  Great  We.stern  Ry.  Co.,  L.  R.  2  Ex.  30.  —  Ed. 


81 G  SWAINSON    V.    NOKTU-E ASTERN    RAILWAY   CO        [CHAP.  VL 

but  where  a  person  is  injured  by  the  negligence  of  a  fellow-servant,  a 
different  rule  prevails.  This  latter  rule  is  not  limited  to  the  case  of 
servants  ;  it  extends  to  guests,  who  cannot  sue  the  master  of  the  house 
for  an  injury  done  by  his  servants.  We  must  consider  what  obligations 
a  servant  takes  upon  himself;  it  is  sometimes  said  that  he  contracts  to 
take  upon  himself  the  risks  of  his  service.  But  the  proposition  may 
also  be  stated  as  follows,  namely,  that  he  has  not  stipulated  for  a 
right  of  action  against  his  master  if  he  sustains  damage  from  the  negli- 
gence of  a  fellow-servant.  The  two  forms  of  the  proposition  seem  to 
me  substantially  the  same;  in  either  case  it  is  necessary  to  prove  that 
a  relation  has  been  established  between  the  person  who  complains  and 
the  master  of  the  person  who  does  the  injury  ;  and  this,  I  think,  was 
the  view  of  the  law  adopted  in  the  Exchequer  Division.  But  I  differ 
from  them  in  the  view  taken  of  the  facts.  The  defendants  were  not  m 
any  manner  the  masters  of  Swainson  ;  it  is  true  that  he  was  one  of  the 
joint  station  staff,  and  he  was  bound  to  discharge  some  duties  for  their 
benefit,  but  they  could  give  him  orders  only  by  permission  of  the  Great 
Northern  Railway  Company.  Again,  could  the  defendants  have  sus- 
tained an  action  against  Swainson  for  incompetence  m  the  discharge  of 
his  duties  whereby  they  suffered  damage?  It  is  plain  they  could  not. 
It  ma}'  seem  strange  that  if  there  had  been  a  partnership  between  the 
defendants  and  the  Great  Northern  Railway  Company  as  to  the  busi- 
ness carried  on  at  the  joint  station,  neither  companj-  would  have  been 
liable  for  the  injury  done  to  their  servants  ;  and  it  may  be  argued  that 
the  only  difference  between  a  partnership  and  the  mode  of  conducting 
the  business  in  the  present  case  is  one  of  form.  But  the  answer  is 
that  in  the  case  of  a  partnership  Swainson  would  have  been  entitled  to 
a  remedy  against  the  defendants  in  the  event  of  the  non-payment  of 
his  wages  ;  and  though  in  point  of  fact  this  ma}-  not  have  been  a  great 
advantage,  yet  the  principle  remains  the  same.  It  may  be  said  that  in 
working  the  signals  for  the  defendants'  engine  he  was  a  volunteer 
working  for  both  companies,  and  was  in  a  common  employment  with 
the  driver ;  but  I  do  not  think  that  that  contention  would  be  well- 
founded.  It  would  resemble  the  case  where  a  carman  receiving  cotton 
was  injured  by  the  negligence  of  the  servants  of  the  brokers  employed 
in  delivering  it,  and  it  was  held  that  the  brokers  were  liable,^  for  the 
carman  and  the  servants  of  the  brokers  were  not  under  the  same  con- 
trol, and  were  not  members  of  a  common  establishment ;  the  work  was 
joint,  but  the  employment  was  different.  Moreover,  in  the  present 
case,  Swainson  at  the  moment  when  the  accident  happened  was  no 
longer  engaged  in  a  common  emploj'ment  with  the  driver  of  the  defend- 
ants' engine. 

I  am  of  opinion  that  the  judgment  must  be  reversed. 

Brett,  L.  J.  I  am  of  the  same  opinion.  We  are  not  entitled  to 
consider  the  origin  of  the  rule  which  exempts  a  master  from  liability 

»  See  Abraham  v.  Reynolds,  5  H.  &  N.  143.  —  Rep. 


SECT.  II.]         SWAINSON   V.    NORTH-EASTERN    RAILWAY    CO.  817 

when  his  servant  is  injured  by  the  negligence  of  a  fellow-servant ;  but 
it  has  been  said  that  the  exemption  depends  upon  an  implied  contract 
entered  into  between  the  master  and  servant.  I  think,  however,  that 
the  plaintiff  in  the  present  case  is  entitled  to  recover,  because  at  the 
time  of  the  accident  the  deceased  was  not  in  a  common  service,  nor 
engaged  in  a  common  emploj'ment  with  the  driver  of  the  engine,  nor 
engaged  in  a  joint  operation.  I  think  that  the  authorities  bear  out  the 
proposition  laid  down  in  the  Exchequer  Division,  that  in  order  to  give 
rise  to  the  exemption  there  must  be  a  common  employment  and  a  com- 
mon master.  It  is  not  necessary  that  there  should  be  a  common  service 
for  a  definite  time,  or  at  fixed  wages  ;  for  the  exemption  exists  in  the 
case  of  volunteers  and  of  other  persons,  where  plainly  there  has  been  no 
contract  for  payment.  A  volunteer  puts  himself  under  the  control  of 
another  person,  and  in  respect  of  that  other  person  he  is  for  the  time 
being  in  the  position  of  a  servant.  For  the  defendants  it  was  not  denied 
that  this  doctrine  is  well  established  ;  but  it  was  contended  that  the 
driver  of  the  engine  and  the  deceased  were  collaborators.  To  a  cer- 
tain extent  I  should  agree  with  the  argument ;  but  the  question  is,  did 
the  deceased  adopt  such  terms  of  service  as  placed  him  under  the 
orders  of  the  defendants?  If  he  did,  I  think  that  would  be  sufficient 
to  exempt  them  from  liability.  That  Swainson  became  their  servant 
pursuant  to  contract  could  not  be  maintained  :  the  onl}'  circumstance 
giving  color  to  such  an  argument  was  his  signature  to  certain  pa}-- 
sheets  ;  but  that  is  clearly  insufficient  to  constitute  him  the  defendants* 
servant.  It  was  contended  that  as  regards  the  use  of  the  station  the 
two  railway  companies  were  practicall}'  partners.  I  cannot  come  to 
the  conclusion  that  the}"  were  :  therefore  no  contract  existed  between 
Swainson  and  the  North-Eastern  Railwa}'  Company,  and  he  was  ser- 
vant to  the  Great  Northern  Compan}'  alone.  Then  did  he  adopt  such 
terms  of  service  as  placed  him  under  the  orders  of  the  defendants  ?  If 
the  question  had  been  properly  raised,  it  might  have  become  necessary 
to  consider  whether  in  signalling  the  defendants'  engine  to  move  from 
the  Great  Northern  rails  he  did  adopt  the  terms  of  such  a  service  ;  but, 
at  all  events,  he  ceased  to  be  under  the  orders  of  the  defendants  when 
he  had  finished  with  the  operation  of  signalling,  and  I  doubt  whether 
he  was  under  their  orders  even  whilst  he  was  engaged  in  that  operation. 
What  was  the  state  of  affairs  when  the  accident  happened?  The  train 
had  been  changed  from  the  Great  Northern  line  on  to  the  North-Eastern 
line.  Swainson  then  had  nothing  further  to  do  with  the  North-Eastern 
line  :  he  was  acting  solely  on  behalf  of  the  Great  Northern  Railwa}' 
Company,  and  was  not  assuming  to  act  upon  behalf  of  the  North- 
Eastern  Railway  Company.  Upon  the  other  hand,  the  driver  of  the 
engine  was  soleh'  under  the  control  of  the  defendants.  It  seems  to 
me  that  the  two  men  were  strangers  to  one  another,  and  not  fellow- 
servants. 

Cotton,  L.  J.     I  am  of  opinion  that  the  judgment  of  the  Exchequer 
Division  must  be  reversed.     The  driver  of  the  engine  was  the  servant 

52 


818  SWAINSON    V.    NORTH-EASTERN    RAILWAY    CO.        [CIIAP.  VI. 

of  the  North-Eastern  Railway  Compan}-,  and  the  act  of  a  servant  is  the 
act  of  his  employer,  therefore  the  defendants  are  2)ri)/ia  facie  liable ; 
but  it  is  a  rule  that  where  one  member  of  an  establishment  is  injured 
by  the  negligence  of  another  member  of  it,  the  master  is  not  answer- 
able. It  is  unnecessary  to  consider  how  the  rule  arises ;  but  it  is  clear 
that  if  a  person  takes  upon  himself  to  act  as  a  member  of  an  establish- 
ment, he  cannot  maintain  an  action  against  the  head  of  it  for  an  injury 
occasioned  by  the  negligence  of  an}'  person  belonging  to  it.  A  volun- 
teer is  in  the  same  position  as  a  servant:  Degg  v.  Midland  Ry.  Co., 
1  H.  &  N.  773.  It  must  be  shown  that  in  some  sense  the  deceased  was 
the  servant  of  the  defendants  ;  but  he  and  the  driver  of  the  engine  were 
not  acting  together  at  the  moment  of  the  accident ;  they  were  doing 
nothing  whatever  in  common.  For  the  reasons  assigned  by  Brett,  L.  J., 
which  I  need  not  go  through,  I  think  that  the  shunting  was  over,  and 
that  the  driver  of  the  engine  had  again  become  solely  the  servant  of 
the  defendants  ;  he  had  passed  the  bit  of  line  which  led  from  the  Great 
Northern  Company's  rails  to  those  of  the  defendants,  and  had  nothing 
more  to  do  with  the  former  compan}-.  Then  the  circumstance  of 
Swainson's  signing  the  pay-sheet  did  not  constitute  him  the  servant  of 
the  defendants.  It  is  true  that  he  was  a  member  of  the  "joint  station 
staff,"  but  the  Great  Northern  Railway'  Company  had  no  power  to 
pledge  the  defendants'  credit  to  Swainson,  who  was  under  the  orders 
of  that  company  alone  ;  during  the  shunting  operations  he  might  at- 
tend to  any  suggestions  which  might  be  made  to  him  on  behalf  of  the 
defendants,  but  that  did  not  make  him  a  servant  of  the  defendants. 
It  may  be  said  that  the  defendants  paid  him  a  portion  of  his  wages, 
and  that  this  created  the  relation  of  master  and  servant  between  them  ; 
but,  in  truth,  the  Great  Northern  Company-  paid  the  whole  of  his 
wages,  and  one-half  of  them  was  repaid  by  the  defendants.  And  upon 
the  facts,  I  come  to  the  conclusion  that  all  those  employed  by  the 
Great  Northern  Railway  Company  were  paid  by  them  alone. 

Judgment  reversed^ 

1  And  see  "Wood  v.  Cobb,  ante,  p.  190;  Murray  v.  Carrie,  ante,  p.  206  ;  Johnson  v. 
City  of  Boston,  118  Mass.  114  (1875) ;  Rourke  v.  White  Moss  Colliery  Co.,  ante,  p.  229; 
Johnson  r.  Lindsay,  [1891]  A.  C.  371  ;  Brow  v.  Boston  &  Albany  Railroad  Co.,  157 
Mass.  399  (1892);  Morgan  y.  Smith,  159  Mass.  570(1893);  Reagan  u.  Casey,  160  Mass, 
374  (1894). 

As  to  volunteers,  see  Degg  v.  Midland  Railway  Co.,  I  H.  &  N.  773  (1857) ;  Potter 
V.  Faulkner,  1  B.  &  S.  800  (Ex.  Ch.  1861)  ;  Holmes  v.  North-Eastern  Railway  Co., 
L.  R.  4  Ex.  254  (1869),  s.  c.  L.  R.  6  Ex.  123  (Ex.  Ch.  1871) ;  Flower  v.  Pennsylvania 
Railroad  Co.,  69  Pa.  211  (1871);  Wright  v.  London  &  North- Western  Railway  Co., 
1  Q.  B.  D.  252  (C.  A.  1876) ;  Street  Railway  Co.  v.  Bolton,  43  Ohio  St  224  (1885).— 
Ed. 


SECT.  II.]  HOUSTON,   ETC.    KAILROAD    CO.    V.    MILLER.  819 


HOUSTON  AND   GREAT  NORTHERN  RAILROAD   CO.  v. 

MILLER. 

Supreme  Court  of  Texas.     1879. 

[51    Tex.  270.J 

Error  from  Harris.     Tried  before  the  Hon.  James  Masterson. 

Baker  &  Botts.,  for  plaintiff  in  error. 

John  T.  Jlarcourt,  for  defendant  in  error. 

Bonner,  J.  This  suit  involves  the  question  of  the  liabilit}'  of  the  mas- 
ter at  the  suit  of  an  employee,  who  was  a  minor,  for  damages  sustained 
by  reason  of  the  alleged  negligence  of  a  fellow-servant ;  the  liabilit}-  of 
the  master  to  the  father  of  the  minor,  who  was  employed  without  the 
consent  of  the  father,  having  been  considered  by  this  court  in  a  branch 
of  this  same  case.     (Railroad  Co.  ''.  Miller,  49  Tex.  322.) 

Since  the  trial  of  the  cause  below,  it  has  become  the  settled  law  of 
this  court,  in  accordance  with  the  well-established  line  of  decisions  in 
Great  Britain  and  in  this  country,  that  the  master  is  not  liable  for  inju- 
ries sustained  by  his  servant  through  the  negligence  or  default  of  a  fel- 
low-servant. Price  V.  Navigation  Co.,  46  Tex.  535  ;  Robinson  v.  Railway 
Co.,  46  Tex.  540. 

The  plaintiff  was  the  employee  of  the  defendant  company,  and  his 
injuries  are  alleged  to  have  been  caused  by  the  negligence  of  the  en- 
gineer, who  was  a  fellow-servant.  Tested  by  the  rule  announced  in  the 
above  cases,  so  much  of  the  first  subdivision  of  the  charge  of  the  court 
as  authorized  the  jury  to  find  for  the  plaintiff  b}-  reason  of  the  alleged 
negligence  of  the  engineer,  was  error,  unless  the  fact  that  the  plaintiff 
was  a  minor  made  his  case  an  exception  to  this  general  rule. 

The  contract  of  a  minor,  made  without  the  consent  of  his  father,  for 
necessaries,  or  for  emplo3'mcnt  in  a  legitimate  business  by  means  of 
■which  necessaries  could  be  obtained,  is  not  void,  but  in  inanj-  cases 
commendable.  If  fair  and  made  in  good  faith,  in  the  usual  course  of 
business,  it  would  be  valid  until  avoided  by  the  minor  himself,  or  b}' 
act  of  the  parent  in  the  exercise  of  his  superior  right  to  demand  his  ser- 
vices. To  require  that  in  such  cases  parties  employing  minors  should 
be  held  thereby  to  be  insurers  against  the  risks  usualh-  incident  to  such 
emploj-raent  would  virtualh'  result,  in  many  instances,  in  an  undue  re- 
straint upon  this  important  class  of  our  citizens  in  obtaining  the  means 
of  a  legitimate  livelihood,  and  would  tend  to  promote  idleness  and  con- 
sequent demoralization.  We  do  not  believe  that,  upon  sound  principles 
of  public  policy  or  authorit}-,  the  mere  fact  that  an  employee  is  under  the 
age  of  twenty- one  3'ears  should  shield  him  from  the  usual  responsibility 
incident  to  an  honest  employment  voluntarily  assumed  by  himself  This 
rule,  however,  should  not  be  enforced  against  a  cliild  of  tender  years, 
who  evidentl}'  would  not  have  the  requisite  discretion  and  experience  to 
be  a  suitable  emplo^^ee  in  a  dangerous  business.     Railway  Co.  v.  Elliott, 


820  BRODEUR   V.    THE    VALLEY    FALLS    CO.  [CIIAP.  VI. 

1  Cold.  (Tenn.)  Gl  9  ;  Gartland  v.  Railway  Co.,  67  111.  498  ;  King  v.  Rail- 
road Corp.,  9  Cush.  112  ;  Railway  Co.  r.  Havne}-,  28  Ind.  28  :  Railroad 
Co.  V.  Gladmon,  15  Wall.  401  ;  Shear.  &  Red.  on  Neg.  sees.  50,  97. 

"We  are  of  opinion,  then,  that  the  error  assigned  upon  this  part  of  the 
first  subdivision  of  the  charge  of  the  court  was  well  taken. ^  .   .  . 

Reversed  and  remanded.* 


BRODEUR  V.   THE  VALLEY   FALLS   COMPANY. 

Supreme  Court  of  Rhode  Island.     1889. 

[16  R.  I.  448.J 

Trespass  on  the  case.     On  demurrer  to  the  declaration. 

This  action  was  brought  to  recover  damages  for  the  death  of  the 
plaintiff's  husband,  caused  by  the  alleged  negligence  of  the  defendant. 
The  deceased  was  killed  by  a  barrel  which  was  thrown  out  of  a  door  by 
one  of  the  defendant's  employees. 

The  defendant  is  a  corporation  engaged  in  the  manufacture  of  cotton 
goods  in  the  town  of  Lincoln,  State  of  Rhode  Island,  where  it  has  its 
manufactor}'  and  a  large  number  of  employees.  It  has,  under  the 
officers  of  the  corporation,  a  general  superintendent,  who  has  imme- 
diate control  and  direction  of  all  the  employees.  It  has  also  overseers 
of  the  different  rooms  or  departments,  such  as  the  slashing  room,  weave 
room,  spinning  room,  machine  shop,  blacksmith  shop,  boiler  room,  &c., 
all  under  the  direction  and  control  of  the  general  superintendent,  who 
takes  his  direction  from  the  officers  of  the  corporation.  The  deceased 
was  employed  as  second  hand,  that  is,  second  foreman,  under  the  regu- 
lar foreman  of  the  machine  shop,  in  the  machine  shop  department,  and 
took  his  orders  from  his  immediate  foreman  or  the  general  superintend- 
ent. His  duties  were,  in  common  with  others  emploj^ed  in  the  machine 
shop  department,  to  assist  in  keeping  defendant's  machinery  in  the  sev- 
eral rooms  or  departments  in  proper  repair  or  condition,  and,  in  case  of 
any  breakage  of  machinery,  to  oversee  and  assist  in  its  repair,  under 
the  direction  of  his  immediate  foreman  or  the  general  superintendent. 
In  the  performance  of  these  duties  he  was  brought  at  different  times 
into  all  the  different  rooms  or  departments  of  defendant's  mills.  On 
the  second  day  of  April,  1884,  the  deceased  was  crossing  an  open 
court  or  j'ard,  from  the  machine  shop  to  the  cast-iron  room,  so  called, 
he  being  then  and  there  engaged  about  his  work  in  the  machine  shop  at 
defendant's  mill,  and  while  passing  across  said  yaxd  was  struck  upon 
his  head  by  an  empty  barrel  which  was  thrown  b\^  the  overseer  of  the 

1  The  remainder  of  the  opinion  pointed  out  two  other  errors.  —  Ed. 

^  See  King  v.  Bo.ston  &  Worcester  Railroad  Corporation,  9  Cush.  112  (1851)  ;  Fisk 
V.  Central  Pacific  Railroad  Co.,  72  Cal.  38  (1887). 

Compare  H.  &  G.  N.  Railroad  Co.  v.  Miller,  49  Tex.  322  (1878) ;  Railroad  Co.  v. 
Fort,  17  Wan.  553  (1873).  — Ed. 


SECT.  II.]  BRODEUR    V.    THE  VALLEY   FALLS   CO.  821 

slashing  and  dressing  room  from  the  fourth  stor\'  of  the  building  in 
which  the  machine  shop  is  situated,  and  thereb}'  fatally  injured.  Said 
deceased  was  not  subject  to  the  orders  of  the  overseer  of  said  slashing 
room,  but  it  was  his  dut}',  in  case  said  overseer  should  report  to  him  that 
any  of  the  machinery'  in  his  department  was  out  of  repair  or  broken,  to 
oversee  the  repair  of  the  same,  subject  to  the  orders  of  his  immediate 
foreman  and  general  superintendent  aforesaid. 

On  the  said  second  da}'  of  April,  1884,  the  deceased  was  not  em- 
ployed or  at  work  in  said  slashing  room  or  department,  but  was 
employed  and  at  work  in  the  machine  shop,  which  is  situated  on  the 
ground  floor  and  feet  under  the  slashing  room  aforesaid. 

The  said  overseer  of  said  slashing  room  was  not,  on  said  day,  at  work 
in  the  machine  shop  or  with  the  deceased.  The  barrel  was  thrown  with- 
out proper  precautions. 

Ftbniary  9, 1889.  Stiness,  J.  The  question  raised  by  this  demurrer 
is,  whether  the  deceased  and  the  foreman  of  the  slashing  room  were  fel- 
low-servants, within  the  meaning  of  the  rule  which  exempts  the  master 
from  liabilit}'  to  his  servant  for  an  injury  received  through  the  negli- 
gence of  a  fellow-servant  in  the  course  of  their  common  service.  The 
plaintiff  contends  that  they  were  not,  because  they  were  not  employed 
in  the  same  department.  The  cases  cited  b}-  the  plaintiff,  excepting 
those  in  Illinois,  are  plainly  distinguishable  from  the  case  at  bar. 
Thus  in  Chicago  &  Milwaukee  Railroad  i\  Ross,  1 12  U.  S.  377,  it  was  held 
that  an  engineer  was  not  a  fellow-servant  with  a  conductor  in  charge,  and 
to  whom  the  company  had  given  the  right  to  command  the  movements 
of  the  train  and  to  control  the  persons  employed  on  it,  upon  the  ground 
that  the  conductor  should  be  treated,  being  so  in  fact,  as  the  personal 
representative  of  the  corporation,  for  whose  negligence  it  was  respon- 
sible to  subordinate  servants.  In  Moon's  Adm'r  v.  R.  &  A.  R.  R.,  78 
Va.  7-45,  the  company  was  building  a  new  road,  and  the  construction, 
at  the  place  of  injury,  was  in  charge  of  a  section  master,  who  was  held 
not  to  be  a  fellow-servant  with  a  train  hand,  the  company  having  dele- 
gated to  an  agent  a  duty  incumbent  upon  it.  It  was  also  held  that  a 
conductor,  having  control  and  direction,  was  not  a  fellow-servant  with 
the  train  hand,  but  his  superior.  In  Ford  v.  Fitchburg  Railroad  Co., 
110  Mass.  240,  the  company  was  held  liable  for  not  providing  a  proper 
engine,  and  in  Davis  r.  Railroad  Co.,  55  Vt.  84,  for  a  defective  road-bed. 
These  cases  stand  upon  verv  different  considerations  from  the  one 
before  us.  The  dut}'  of  the  master  to  furnish  suitable  machiner}'  and 
appliances,  and  to  keep  the  same  in  repair,  is  unquestioned.  It  is  also 
well  settled  that,  when  a  master  delegates  to  a  servant  duties  which  be- 
long to  himself,  the  servant  will  occupy  the  place  of  the  master,  not  that 
of  fellow-servant  with  other  employees,  and  the  master  will  remain  as 
responsible  for  the  negligence  of  this  servant  as  if  he  were  personally- 
guilty  of  it  himself  Mulvey  v.  R.  I.  Locomotive  Works,  14  R.  I.  204. 
In  the  present  case  the  deceased  was  not  under  the  overseer  of  the 
slashing  room,  nor  did  the  latter  stand  in  the  place  of  the  principal 


822  BRODEUR   V.    THE   VALLEY   FALLS    CO.  [CIIAP,  VL 

with  reference  to  the  deceased.  Bat  the  decisive  question  in  this  case 
is,  whetlier  the  circumstances  set  forth  amount  to  fellow-service,  as  the 
term  is  used  in  hiw.  The  cases  in  IlUnois  are  directly  in  favor  of  the 
plaintiff's  contention.  The}'  proceed  upon  the  distinct  ground  tliat,  to 
constitute  workmen  under  the  same  master  fellow-servants,  the}'  must 
directh'  co-operate  with  each  other,  or,  bv  their  usual  duties,  be  brought 
into  such  habitual  association  as  to  have  the  power  of  influencing  each 
other  to  the  exercise  of  constant  caution,  by  example,  advice,  encour- 
agement, and  b}'  reporting  delinquencies.  In  the  case  of  Chicago  & 
N.  W.  11.  R.  V.  Moranda,  93  111.  302,  the  court  reviews  and  alllnns  its 
position  at  length.  It  remarks,  however:  "Although  the  distinction 
taken  by  this  court  between  these  two  classes  of  co-servants,"  i.  e.,  those 
employed  in  the  same  department  and  those  emploj'ed  in  separate  and 
disconnected  branches  of  the  business,  "  has  not  the  sanction  of  the 
courts  of  England,  nor  that  of  most  of  the  courts  of  last  resort  in  this 
country,  we  think,  on  principle,  it  is  a  distinction  that  ought  to  be 
taken." 

But  this  distinction  has  not  been  overlooked  in  the  adjudications  upon 
this  subject.  In  the  earl}'  case  of  Farwell  v.  Boston  &  Worcester  R.  R, 
Corp.,  4  Met.  49,  the  consideration  of  a  distinction  between  those  two 
classes  of  cases  was  pressed  upon  the  court. ^  .  ,  .  The  reasons  here 
set  forth  are  a  strong  answer  to  the  position  taken  in  the  Illinois  cases. 
They  show  an  obvious  impracticability  in  trying  to  gauge  the  liability 
of  an  employer,  in  a  complex  business,  b}-  the  independence  of  its  dif- 
ferent branches,  or  by  the  intercommunication  of  those  employed.  Not 
only  would  it  be  almost  impossible,  in  many  cases,  to  separate  the  work 
into  distinct  departments  and  to  discern  their  dividing  lines,  but  inci- 
dental duties,  changing  the  relations  of  workmen  to  each  other,  would 
vary  also  the  master's  liability.  He  would  thus  be  liable  for  the  negli- 
gence of  a  servant  at  one  time  or  place  and  not  at  another.  Without  a 
personal  supervision  of  all  his  help  in  all  their  work,  he  could  not  know 
when  he  was  responsible  and  when  he  was  not.  Moreover,  such  a  rule 
would  govern  the  liability  of  a  master  when  the  groundwork  upon  which 
the  rule  is  founded  did  not  exist.  For  if  the  test  of  liability  be  that  of 
the  separate  and  independent  duties  of  the  servants,  they  may,  never- 
theless, be  so  near  each  other  as  to  be  able  to  exert  a  mutual  influence 
to  caution  ;  or,  if  it  be  that  of  association,  they  may  still  be  in  the  same 
department,  but  unable,  from  their  duties  or  position,  to  exert  such  in- 
fluence. But,  aside  from  these  considerations,  we  do  not  think  the  rule 
is  correct  in  principle.  The  principle  upon  which  the  determination  of 
Farwell  v.  Boston  &,  Worcester  E.  R.  Corp.  proceeded  is  the  same  that  has 
been  generally  followed  in  England  and  in  this  country,  namely,  that  the 
rights  and  liabilities  of  both  master  and  servant  are  those  which  grow 
out  of  their  contract  relation.  The  master  impliedly  agrees  to  use  due 
care  for  the  safety  of  his  servant,  in  providing  suitable  places  and  ap- 

1  Here  was  quoted  a  passage  from  Farwell  v.  Boston  &  Worcester  Railroad  Corpo- 
ration, ante,  p.  786.  —  Ed. 


SECT.  II.]  BKODEUK   V.   THE    VALLEY    FALLS    CO.  823 

pliances  for  work ;  and,  as  is  universally  conceded,  the  servant  agrees 
to  assume  the  ordinary  risks  of  his  employment.  The  most  common 
risks  of  service  spring  from  the  negligence  of  fellow-servants.  When 
one  works  with  others,  he  knows  that  his  safety  depends  on  the  exer- 
cise of  care  by  those  around  him,  as  their  safety-  depends  also  upon  his 
own  caution.  No  man  can  enter  into  an  employment  without  a  thought 
of  tliis.  Negligence,  therefore,  among  workmen  is  a  breach  of  the  duty 
which  each  owes  to  the  others,  and  not  a  breach  of  the  master's  duty,  if 
he  has  exercised  tlie  care  that  is  required  of  him.  For  his  own  negli- 
gence the  master  must  answer ;  but  for  that  of  others,  which  is  a  risk 
incident  to  ever}-  employment,  he  has  not  agreed  to  be  responsible,  but 
on  the  contrary  the  servant  has  impliedly  agreed  to  assume  it  upon  him- 
self. The  contract  relation,  therefore,  puts  them  outside  of  the  rule 
which  makes  a  master  liable  to  a  stranger  for  the  negligence  of  his 
agent ;  for  respoTideat  superior  is  based  upon  considerations  of  public 
polic}'  which  are  not  called  for  in  the  relation  between  master  and  ser- 
vant. The  cases  cited  In'  the  defendant  abundantl}'  illustrate  and  sup- 
port the  generall}'  recognized  doctrine  that  servants  under  the  same 
master,  in  a  common  service,  are  fellow-servants,  although  they  may  be 
engaged  in  different  departments  of  labor. 

But  the  plaintiff  further  contends,  even  in  this  view  of  the  case,  it  is 
onlv  the  ordinary  risks,  which  can  be  reasonabl}'  foreseen  and  taken 
into  account,  that  the  servant  assumes  ;  and,  consequentl}',  since  the 
deceased  could  not  foresee  such  an  act  of  carelessness  as  the  throwing 
of  the  barrel,  it  is  not  within  the  risks  assumed.  We  have  alread}'  said 
that  the  ordinary  risks  include  the  carelessness  of  others.  This  rule  is 
distinctly  recognized  in  Railroad  Company  r.  Fort,  17  Wall.  5.53,  one 
of  the  cases  cited  by  the  plaintiff  upon  this  point.  The  court  say : 
"  The  employee,  in  entering  the  service  of  the  principal,  is  presumed  to 
take  upon  himself  the  risks  incident  to  the  undertaking,  among  which  is 
to  be  counted  the  negligence  of  fellow-servants."  In  that  case  a  boy  of 
tender  years  was  sent  by  a  superior,  whose  orders  he  was  required  to 
obey,  to  adjust  a  belt  in  a  dangerous  place,  outside  of  his  regular  duties, 
in  ignorance  of  the  danger.  There  is  a  wide  difference  in  the  applica- 
tion of  the  rule  in  such  a  case  and  in  the  ease  at  bar.  The  argument  of 
the  plaintiff  here,  if  followed,  would  abrogate  the  rule  ;  for  the  careless 
acts  of  another  are  just  the  ones  that  cannot  be  foreseen.  If  the}'  could 
be,  it  would  be  because  they  were  a  part  of  the  ordinary  way  of  doing 
things,  and,  therefore,  presumably  not  negligent.  They  are,  neverthe- 
less, a  part  of  the  ordinary  risks.  We  think  the  plaintiff's  claim  that 
the  deceased  and  the  overseer  of  the  slashing  room  are  not  to  be 
regarded  as  fellow-servants  is  untenable,  and  that  the  demurrer  to  the 
declaration  must  be  sustained.  Demurrer  sustaified.^ 

Patrick  J.  McCarthy^  for  plaintiff. 

James  M.  Ripley^  for  defendant. 

*  Ace.:   Gormley  v.  Ohio  &  Mississippi  Ry.  Co.,  72  Ind.  31  (1880).  —Ed. 


824  LITTLE    MIAMI    KAILROAD   CO.    V.    STEVENS.         [CHAP.  VL 


SECTION   II.   {contmued). 
(B)  Suitable  Appliances,  Agents,  Premises,  and  Regulations.    And 

HEREIN    OF    the    ViCE-PrINCIPAL    DoCTRINE. 

THE  LITTLE  MIAMI  RAILROAD  COMPANY  v.  STEVENS. 
Supreme  Court  of  Ohio.     1851. 

[20  0/uo,  415.J1 

Error  to  the  Common  Pleas  of  Hamilton  Count}'. '^ 

Charles  Fox  and  French,  for  plaintiff  in  error. 

George  F.  P(f;/h,  Peter  Zinn^  George  II.  Pendleton,  and  D.  T. 
Wright,  for  defendant  in' error. 

Caldwell,  J.  Stevens  was  the  engineer  on  one  of  the  trains  of  cars 
of  the  Little  Miami  Railroad  Compan}'.  The  upward  and  downward 
trains  of  cars  had,  previous  to  August  13,  184G,  passed  each  other  at 
Plainville,  about  nine  miles  from  Cincinnati.  A  change  of  the  place  of 
passing  had  been  determined  on,  namel}-,  that  the  cars  should  pass  at 
Columbia,  instead  of  Plainville,  the  two  places  being  about  three  miles 
apart.  This  change  was  to  take  place  on  the  13th  of  August,  1846,  the 
day  on  wliich  the  collision  occurred.  It  is  the  universal  custom  of  the 
company-,  when  a  change  of  this  kind  takes  place,  to  give  the  engineers 
a  printed  card,  setting  forth  the  times  of  starting,  places  where  the  cars 
are  to  pass,  time  of  running,  &c.,  containing  the  change  that  has  been 
made.  On  the  day  on  which  the  collision  took  place,  the  plaintiff, 
Stevens,  was  the  engineer  on  the  upward  train  from  Cincinnati  to 
Springfield,  and  Geo.  Smith  was  the  conductor.  On  the  route  the  con- 
ductor, according  to  the  rules  of  the  company,  is  the  commanding 
officer,  so  far  as  determining  when  the  cars  shall  start  and  stop,  &c. 
The  upward  train  came  in  collision  with  the  downward  train  about 
seven  miles  from  Cincinnati,  between  Columbia  and  Plainville,  and 
Stevens  was  ver}-  much  injured  by  scalding ;  his  recover}'  was  doubtful 
for  some  time  ;  he  was  confined  for  months,  and  has  been  injured  for 
life.  The  engineer  and  conductor  of  the  downward  train  had  received 
their  cards,  stating  the  change,  and  they  were  running  in  accordance 
with  it,  expecting  to  pass  the  upward  train  at  Columbia.  There  is  no 
evidence  that  Stevens  had  received  a  card  stating  the  change  ;  indeed, 
it  is  clearly  inferable,  from  the  evidence,  that  he  had  not.  Paul  Hues- 
ton,  who  was  the  baggage-master  on  the  train,  states  that,  at  the  time 
of  the  collision,  he  had  heard  nothing  about  the  change  ;  he  also  states, 
that,  at  the  time  the  collision  took  place,  A.  H.  Lewis,  who  was  an 
oflScer  of  the  company  (in  what  capacity  does  not  appear),  took  out  of 

1  The  case  in  the  court  below  is  reported  in  7  Western  Law  Journal,  369  (1850).— ^ 
Ed. 

2  The  reporter's  statement  is  omitted.  —  Ed. 


SECT.  II.]  LITTLE    MLVMI    RAILROAD    CO.    V.    STEVENS.  825 

his  pocket  two  cards,  and  hauded  them  to  him,  aud  told  him  to  give 
one  of  them  to  Stevens,  the  engineer,  and  the  other  to  Smith,  the  con- 
ductor. N.  Morrill,  the  chief  clerk,  testifies  that,  on  the  morning  of 
the  day  on  wliich  the  collision  took  place,  Thomas  L.  Cole,  an  assistant 
in  the  engineering  department,  handed  to  Smith,  the  conductor,  a  time 
card,  and  that  Smith  showed  it  to  him,  witness,  after  he  had  received 
it ;  he  says  he  knows  of  no  card  being  delivered  to  Stevens.  Isaac 
West  states  that,  when  the  cars  reached  Columbia,  Stevens  stopped ; 
that  Smith,  the  conductor,  went  forward  through  the  cars  and  asked 
him  why  he  stopped  ;  that  Stevens  inquired  of  him  whether  the  change 
did  not  take  place  tliat  day,  and  the  cars  pass  there  ;  that  Smith  re- 
plied that  the  change  did  not  take  place  on  that  day,  but  named  a  sub- 
sequent day  on  which  it  was  to  take  place  ;  Smith  then  told  Stevens  to 
go  on,  and  the  cars  immediatel}'  proceeded. 

Other  witnesses  speak  of  the  stoppage  of  the  cars  at  Columbia,  and 
also  of  seeing  Smith  in  the  attitude  of  conversation  with  Stevens,  but 
the}-  did  not  hear  what,  if  anytliing,  was  said.  One  witness  states 
that  lie  saw  Smith  give  the  motion  of  the  hand  to  Stevens  to  proceed. 

The  cause  was  submitted  to  the  jur}-,  who  found  a  verdict  for  the 
plaintiff.  The  defendant  moved  for  a  new  trial,  and  also  an  arrest  of 
judgment,  which  motions  were  overruled,  and  judgment  entered  on  the 
verdict.  The  defendant  took  a  bill  of  exceptions,  in  which  the  evidence 
is  set  forth,  as  well  as  a  number  of  charges,  which  were  asked  to  be 
given  bj'  the  court  to  the  jur}-  by  the  defendant,  which  were  refused  by 
the  court. 

The  main  question  arises  on  the  refusal  of  the  court  to  charge,  on  a 
single  point,  and  on  the  charge  affirmativelv  given  on  the  same  point ; 
and  although  this  question  is  presented  in  different  forms  by  the  charges 
asked,  yet  we  think  it  is  full\-  presented  b}-  the  second  charge  asked 
and  refused,  which  reads  as  follows  :  '■  That  where  two  or  more  persons 
are  employed  b}'  one  individual  or  company,  and,  in  doing  the  work  the}' 
are  employed  to  do,  one  of  them,  by  his  negligence  and  inattention  to 
his  duties,  causes  an  injury  to  the  other,  no  action  can  be  sustained 
against  the  employer,  w^hether  he  be  an  individual  or  a  company." 

The  proposition  here  stated,  and  contended  for  on  the  part  of  the 
company,  is,  that  whilst  it  is  admitted  that  the  company  would  be  liable 
to  the  fullest  extent  for  an  injury  done  to  a  person  having  no  connection 
with  the  company,  b}'  the  negligence  of  one  of  their  agents,  yet  that 
Smith  and  Stevens,  both  being  in  the  employ'  of  the  compan}-,  the  com- 
pany would  not  be  liable  for  an  injury  done  to  Stevens,  through  the 
negligence  of  Smith  and  the  other  agents  of  the  compan}'. 

It  is  a  general  rule  that  a  person,  in  the  management  of  his  business, 
whether  he  does  it  himself  or  acts  through  agents,  must  so  conduct 
that  business  as  not  to  interfere  with  the  rights  of,  or  produce  injury  to 
others.  This  devolves  on  the  part}-  care  and  prudence  in  the  manage- 
ment of  his  business,  and  renders  him  civilly  responsible  for  anj-  injury 
that  ma}-  result  to  others  from  the   want  of  such  care  and  prudence, 


826  LITTLE   MIAMI    RAILROAD   CO.   V,    STEVENS.         [cHaP.  VL 

whether  the  injury  ma}'  be  done  under  his  own  immediate  supervision, 
or  under  the  control  of  agents.  This  doctrine  is  founded  in  reason. 
What  can  be  more  reasonable  than  that  he  who  puts  an}'  power  in 
motion  for  his  own  benefit,  wliich,  from  its  nature,  may  be  destructive 
to  the  property  and  life  of  others,  if  not  carefully  managed,  should  be 
accountable  for  such  injur}'  as  may  be  caused  by  the  careless  manage- 
ment of  such  power.  An  injury  has  been  done  ;  it  has  fallen  on  a  party 
who  is  guilty  of  no  wrong,  no  carelessness ;  it  has  been  done  by  a  force 
put  in  motion  by  a  party  who  has  caused  the  injury  by  his  careless 
management.  On  whom  shall  tlie  loss  fall?  On  the  innocent  person 
who  had  no  control  or  management  of  the  thing  that  produced  it?  Or 
shall  it  not  rati)er  fall  on  the  person  who  put  the  power  in  motion,  for 
whose  benefit  it  moves,  who  is  in  duty  bound  to  provide  for  its  proper 
management,  who  selects  his  agents,  controls  their  movements,  and  who 
gives  them  their  authority  to  act? 

Indeed,  the  rule  is  not  only  a  reasonable  one,  that  the  emi)loyer 
should  make  good  the  injuries  thus  done  by  the  carelessness  of  his  agents  ; 
but  it  is  necessary  as  a  preventive  of  mischief,  and  a  protection  to  the 
community,  that  it  should  be  strictly  adhered  to.  The  rule  is  founded 
on  the  principles  of  justice  between  man  and  man,  and,  abstractly  con- 
sidered, is  of  universal  application.  There  must  be  some  good  reason 
for  taking  any  case  without  its  application. 

It  is  said,  however,  that  when  a  party  contracts  to  perform  services, 
he  takes  into  account  the  dangers  and  perils  incident  to  the  employment, 
and  receives  wages  accordingly.  Take  this  for  granted  ;  and  we  think 
it  falls  far  short  of  sustaining  the  main  proposition.  If  the  party  does 
contract  in  reference  to  the  perils  incident  to  the  business,  he  will  only 
be  presumed  to  contract  in  reference  to  such  as  necessarily  attend  it 
when  conducted  with  ordinary  care  and  prudence.  So  far  as  an  implied 
contract,  in  reference  to  the  business,  will  be  presumed,  it  will  be  on 
the  hypothesis  that  the  business  is  to  be  properly  managed.  He  cannot 
be  presumed  to  have  contracted  in  reference  to  injuries  inflicted  on  him 
by  negligence  ^ — by  wrongful  acts.  An  express  stipulation  would  at 
least  be  necessary  to  make  it  a  part  of  the  contract.  The  employer  has 
paid  him  no  money  for  the  right  to  bi'eak  his  legs,  or,  as  in  this  case,  to 
empty  on  him  the  contents  of  a  boiler  of  scalding  water.  It  was  not 
the  expectation,  when  the  company  hired  Stevens,  that  the  two  trains 
should  run  bv  different  cards  and  thus  come  in  collision. 

When  a  man  employs  another  to  do  work  for  him,  each  incur  their 
obligations.  The  person  hired  is  bound  to  perform  the  labor  according 
to  the  agreement,  and  the  employer  is  bound  to  pay ;  besides  that, 
neither  party  has  parted  with  any  of  his  rights.  The  employer  has  no 
more  control  over  the  person  he  has  employed,  outside  of  the  service  to 
be  rendered,  than  he  has  over  the  person  of  any  other  individual;  and 
is  equally  accountable  for  an  injury  to  it. 

In  this  case  the  evidence  leads  the  mind  irresistibly  to  the  conclusion 
that  Stevens  had  not  received  a  card,  or  any  certain  information  that 


SECT.  II.]  LITTLE   MIAMI    RAILROAD    CO.    V.    STEVENS.  827 

the  change  was  to  take  place  on  the  day  of  the  collision.  The  effects 
of  a  collision  are  so  dangerous  that  it  was  certainl}'  the  dut}'  of  the 
compau}-  to  furnish  him  with  that  information  ;  without  such  informa- 
tion he,  as  a  matter  of  course,  would  run  by  the  card  that  he  had  for- 
merly' been  running  b}',  which  would  place  the  trains  in  danger  of  a 
collision.  It  would  appear  from  the  evidence  that  he  had  heard  some- 
thing of  it,  but  he  was  told  by  Smith,  the  conductor,  that  the  change 
was  not  to  take  place  on  that  da}-,  and  to  proceed.  He  obeyed,  and 
suffered  the  injury  in  consequence. 

It  is  said  that  Stevens  was  guilty  of  negligence  himself  in  not  stop- 
ping at  Columbia.  And  further,  that  he  was  negligent  in  running  as 
fast  as  he  did,  and  not  keeping  a  man  on  ahead  to  give  notice  of 
the  approach  of  a  train,  he,  Stevens,  having  reason,  as  is  alleged,  to 
believe  that  the}'  were  in  danger  of  meeting  the  other  train.  And 
several  charges  were  asked  as  to  what  would  constitute  negligence  on 
his  part;  some  of  these  charges  the  court  overruled,  and  which  ruling 
of  the  court  is  assigned  for  error. 

When  we  take  into  account  the  fact  that  Stevens  had  not  received 
the  ordinary  notice  of  the  change,  and  the  fact  that  he  was  told  that  the 
change  did  not  take  place  until  a  subsequent  da}',  by  the  person  who 
had  the  control  of  the  cars,  and  the  right  to  give  him  his  orders  as  to 
running  and  stopping,  we  do  not  think  that  there  was  evidence  showing 
negligence  on  his  part ;  and  that  charge,  from  the  state  of  evidence, 
was  immaterial.  Stevens  had  engaged  to  labor  for  the  company  in  a 
subordinate  capacity ;  he  has  received  the  injur}'  from  the  negligence 
of  those  placed  over  him  by  the  company,  as  the  jury  have  found,  and 
we  do  not  see  why  the  company  are  not  liable  to  him  for  the  amount  of 
the  damage  he  has  sustained. 

It  is  contended,  however,  on  the  part  of  the  company,  that  public 
policy  forbids  the  right  of  a  party  to  bring  suit  against  his  employer  for 
an  injury  by  another  in  the  same  employ,  because  it  is  supposed  that  it 
will  lead  to  carelessness  on  the  part  of  those  employed,  when  they  know 
that  they  can  recover  for  any  damage  that  they  may  receive.  In  answer 
to  this,  it  may  be  remarked,  that  it  is  only  where  the  person  has  been 
careful  himself,  that  any  right  of  action  accrues  in  any  case.  Besides, 
we  do  not  think  it  likely  that  persons  would  be  careless  of  their  lives 
and  persons  or  property,  merely  because  they  might  have  a  right  of 
action  to  recover  for  what  damage  they  might  prove  they  had  sustained. 
If  men  are  influenced  by  such  remote  considerations  to  be  careless  of 
what  they  are  likely  to  be  most  careful  about,  it  has  never  come  under 
our  observation.  We  think  the  policy  is  clearly  on  the  other  side.  It 
is  a  matter  of  universal  observation,  that  in  any  extensive  business, 
where  many  persons  are  employed,  the  care  and  prudence  of  the  em- 
ployer is  the  surest  guaranty  against  mismanagement  of  any  kind.  The 
employer  would,  we  think,  be  much  more  likely  to  be  careless  of  the 
persons  of  those  in  his  employ,  since  his  own  safety  is  not  endangered 
by  any  accident,  when  he  would  understand  that  he  was  not  pecuniarily 


828  LITTLE    MIAMI   RAILROAD    CO.    V.    STEVENS.  [CHAP.  VL 

liable  for  the  careless  conduct  of  his  agents.  Indeed,  we  think  that 
those  who  have  others  in  their  emploj'  are  under  peculiar  obligations  to 
them  to  provide  for  their  safety  and  comfort,  and  we  tliink  they  should 
at  least  be  held  legally  responsible  to  them  as  much  as  to  a  stranger. 

We  could  easily  suppose  a  case  where  two  persons  employed  b}'  the 
same  individual,  and  standing  on  a  perfect  equality,  where  the  busi- 
ness was  managed  as  much  by  one  as  the  other,  —  where  tliey  would 
stand  on  the  same  footing  as  men  in  the  corauiunity  generally  do,  —  in 
which  the  emplo3er  would  not  be  liable  for  an  injury  done  to  one  by 
the  negligence  of  the  other.  But  we  regard  this  case  as  standing  on 
entirely  a  different  footing. 

Amongst  other  cases,  we  have  been  referred  to  those  of  Farwell  v. 
The  Boston  and  Worcester  Railroad  Corporation,  4  Mete.  49  ;  and 
Murray  v.  South  Carolina  Railroad  Company.  The  case  in  4  Metcalt 
denies  the  right  of  recovering  principally  on  two  grounds,  namely,  that 
the  person  employed  contracts  with  reference  to  the  perils  of  the  em- 
ployment ;  and  that  he  receives  a  compensation,  in  tlie  way  of  wages, 
for  such  perils,  and  therefore  he  cannot  recover ;  and  that  it  would  be 
contrary-  to  public  policy  to  permit  a  recover}-,  as  the  tendencj-  would 
be  to  produce  carelessness  on  the  part  of  persons  thus  employed.  The 
decision  in  1  McMullan  appears  to  be  based  principall}'  on  the  first  of 
these  two  propositions.  We  have  noticed  both  of  these  propositions  in 
our  previous  remarks.  In  both  cases,  much  stress  is  laid  upon  the  fact 
that  no  precedent,  of  a  recovery  under  such  circumstances,  is  to  be 
found.  It  is  to  be  noticed  that  in  both  of  these  cases  the  facts  differ 
in  some  particulars  from  the  present ;  we  must  admit,  however,  that 
the  reasoning  in  those  cases  would  cover  the  one  now  before  us.  So 
far  as  those  cases  decide  that  a  recovery  cannot  be  had  in  a  case  like 
the  one  now  before  the  court,  we  think  they  are  contrary  to  the  general 
principles  of  law  and  justice,  and  we  cannot  follow  them  as  precedents. 
The  court,  then,  are  of  the  opinion  that  there  was  no  error  in  the 
charge  of  the  court,  and  that  the  evidence  warranted  a  recovery  on  the 
part  of  Stevens. 

The  Judgment  will,  therefore,  be  affirmed.^ 


1  In  Hutchinson  v.  York,  Newcastle  &  Berwick  Ry.  Co  ,  5  Exch.  343,  3,53  (1850), 
Alderson,  B.,  for  the  court,  said  •  "  Though  we  have  said  that  a  master  is  not  in  gen- 
eral responsible  to  one  servant  for  an  injury  occasioned  to  him  by  the  negligence  of  a 
fellow-servant  while  they  are  acting  in  one  common  service,  yet  this  must  be  taken 
with  the  qualification  that  the  master  shall  have  taken  due  care  not  to  expose  his 
servant  to  unreasonable  risks.  The  servant,  when  he  engages  to  run  the  risks  of  his 
service,  including  those  arising  from  the  negligence  of  fellow-servants,  has  a  right  to 
understand  that  tlie  master  has  taken  reasoual)le  care  to  protect  him  from  such  risks 
by  associating  him  only  with  persons  of  ordinary  skill  and  care." 

In  Paterson  v.  Wallace,  1  Macq.  748,  751  (1854),  Lord  Cranworth  said  :  "  When 
a  master  employs  a  servant  in  a  work  of  a  dangerous  character,  he  is  bound  to  take  all 
reasonable  precautions  for  the  safety  of  that  workman.  This  is  the  law  of  England 
no  less  than  the  law  of  Scotland.  It  is  the  master's  duty  to  be  careful  that  his  servant 
is  not  induced  to  work  under  a  notion  that  tackle  or  machiner}-  is  stanch  and  secure 


SECT.  II.]  LITTLE    MIAMI    RAILROAD    CO.    V.    STEVENS.  829 

Hitchcock,  C.  J.  I  concur  in  the  opinion  of  the  Court  affirming  the 
judgment  of  the  Court  of  Common  Pleas  ;  and  it  seems  to  me  that  this 

when  in  fact  the  master  knows,  or  ought  to  know,  that  it  is  not  so.  And  if  from  any 
negligence  in  this  respect  damage  arise,  the  master  is  responsible." 

The  principal  case  was  followed  in  Cleveland,  Columbus  &  Cincinnati  Railroad  Co. 
V.  Keary,3  Ohio  St.  201  (1854),  wherein,  at  pp.  210-211,  218,  Kanney,  J.,  for  the  court, 
said :  — 

"  As  corporations  can  act  only  through  their  agents  and  officers,  authorized  to  exer- 
cise the  functions  conferred  by  their  charters,  there  is  much  force  in  the  view  of  the 
late  C.  J.  Hitchcock,  that  the  superintendent  (and  conductor  when  running  a  train)  of 
a  railroad,  ought  to  be  regarded  as  the  proper  representatives  of  the  company,  and  their 
acts  considered  as  those  of  the  company.  But  I  do  not  think  it  necessary  to  insist 
upon  this  position.  Let  the  company  be  liable  only  upon  the  maxim  respondeat  supe- 
rior, or  upon  the  obligations  arising  out  of  the  contract  of  service,  and  in  either  view, 
their  liability  for  injuries  to  their  subordinates,  caused  by  the  carelessness  of  the  con- 
ductor they  have  placed  over  them,  in  charge  of  the  train,  is,  in  our  opinion,  sufficiently 
apparent.  This  conclusion  rests  wholly  upon  the  idea  that  the  company,  from  the  very 
nature  of  the  contract  of  service,  is  under  obligations  to  them,  as  well  as  they  to  the 
company ;  and  that  among  these  obligations  is  that  of  superintending  and  controlling, 
with  skill  and  care,  the  dangerous  force  employed,  upon  which  their  safety  so  essen- 
tially depends.  For  this  purpose  the  conductor  is  employed,  and  in  this,  he  directly 
represents  the  company.  They  contract  for,  and  engage  his  care  and  skill.  They 
commission  him  to  exercise  that  dominion  over  the  operations  of  the  train,  which 
essentially  pertains  to  the  prerogatives  of  the  owner  ;  and  in  its  exercise  he  stands  in 
the  place  of  the  owner,  and  is  in  the  discharge  of  a  duty  which  the  owner,  as  a  man 
and  a  party  to  the  contract  of  service,  owes  to  those  placed  under  him,  and  whose  lives 
may  depend  on  his  fidelity.  His  will  alone  controls  everything,  and  it  is  the  will  of  the 
owner  that  his  intelligence  alone  should  be  trusted  for  this  purpose.  This  service  is  not 
common  to  him,  and  the  hands  placed  under  him.  They  have  nothing  to  do  with  it. 
His  duties  and  their  duties  are  entirely  separate  and  distinct,  although  both  necessary 
to  produce  the  result.  It  is  his  to  command,  and  theirs  to  obey  and  execute.  No  .ser- 
vice is  common  that  does  not  admit  a  common  participation  ;  and  no  servants  are 
fellow-servants,  when  one  is  placed  in  control  over  the  other.    .    .    . 

"As  between  the  company  and  those  employed  to  labor  in  subordinate  situations  under 
the  control  of  a  superior,  two  distinct  classes  of  obligations  arise  —  the  one  resting  upon 
the  company,  and  the  other  upon  the  servants  —  and  both  founded  upon  what  each,  either 
expressly  or  impliedly,  has  agreed  to  do  in  execution  of  the  contract.  It  is  the  duty  of 
the  company  to  furnish  suitable  machinery  and  apparatus,  and,  as  they  reserve  the  gov- 
ernment and  control  of  the  train  to  themselves,  and  intrust  no  part  of  it  to  these  ser- 
vants, to  control  it  and  them,  with  prudence  and  care.  As  the  necessity  for  this  prudence 
and  care  is  con.staut  and  coutinuiug,  the  obligation  is  performed  only  when  it  is  constantly 
exercised,  and  they  cannot  rid  themselves  of  it  by  devolving  this  power  upon  the  con- 
ductor. If  they  intrust  him  with  its  exerci.se,  in  the  language  of  Judge  Story,  they 
'  in  effect  warrant  his  fidelity  and  good  conduct.' 

"  It  is  the  duty  of  the  servants  to  obey  the  orders  of  the  superior  thus  placed  over 
them,  and  to  perform  as  he  shall  direct.  If  they  fail  to  do  this,  and  injure  each  other, 
they  violate  their  engagements  to  the  company,  and  are  alone  answerable  for  the 
wrongs  they  may  do.  In  such  case  there  is  no  failure  of  the  company  to  do  what,  as 
between  them  and  these  servants,  it  was  understood  they  should  do,  when  the  servants 
entered  the  service.  But  they  cannot  be  made  to  bear  losses  arising  from  carelessness 
in  conducting  the  train,  over  which  their  employer  gave  them  no  power  or  control,  either 
separately  or  collectively,  until  we  are  prepared  to  say  that  justice  and  public  policy 
require  the  consequences  of  duty  omitted  by  one  party  to  be  visited  upon  the  other, 
although  stripped  of  all  power  to  prevent  such  con.sequences." 

In  Railway  Co.  v.  Ranney,  37  Ohio  St.  665,  669  (1882),  McIlvaine,  J.,  for  the 
eourt,  said :  "  The  respective  rigiits  and  duties  of  employer  and  employee  sound  in 


830  LITTLE    MIAMI    RAILROAD   CO.    V.    STEVENS.         [CHAP.  VL 

ma}-  be  done  without  conflicting  at  all  with  the  authorities  which  have 
been  cited  b\'  the  plaintiffs  in  Error.  If  this  case  were,  in  its  principal 
features,  like  an}'  one  of  those  reported  and  referred  to,  I  should  hesi- 
tate long  before  I  would  consent  to  disregard  those  decisions.  They 
were  decisions  made  b}'  highh'  respectable  tribunals,  and  bv  men  whose 
opinions  are  entitled  to  the  highest  consideration.  But  in  each  case 
referred  to  as  being  decided  in  the  United  States,  the  action  was  com- 
menced for  an  injur}'  received  b}'  one  employee  or  servant  of  the  Com- 
pan}',  in  consequence  of  the  neglect  or  default  of  another  employee  or 
servant  of  the  same  Company,  both  at  the  time  being  engaged  in  the 
running  of  the  cars. 

This  case,  as  it  appears  from  the  bill  of  exceptions,  is  entirely  dif- 
ferent. The  neglect  complained  of,  is  not  the  neglect  of  an  employee, 
or  servant  of  the  Compan}'  upon  the  road,  but  the  neglect  of  the  Com- 
pany itself;  so  far  as  an  incorporated  company  can  be  chargeable  with 
neglect.  1  .  .  . 

Had  cards  been  delivered  to  the  conductor  and  engineer  on  the  up 
train,  as  the}'  should  have  been,  there  is  no  probability  that  there  would 
have  been  any  collision. 

Here  was  negligence,  in  consequence  of  which,  an  injury  resulted  to 
the  defendant  in  error.  It  was  not  the  negligence  of  any  employee  of 
the  Corapanv,  assisting  in  running  the  cars  ;  unless,  by  possibility,  the 
conductor  of  the  train  had  been  notified  of  the  change,  of  which  there 
is  no  satisfactory  proof.  But  it  was  the  negligence  of  the  Company 
itself,  or  of  its  immediate  agent,  the  superintendent  of  the  road. 

Now  suppose  an  individual  had  been  placed  in  the  situation  of  the 
Railroad  Company,  and  a  similar  injury  had  resulted,  in  consequence  of 
a  like  neglect  on  his  part,  can  there  be  a  doubt  that  he  must  have  been 
liable  to  respond  in  damages  for  that  injury?  If  under  such  circum- 
stances an  individual  would  be  liable,  surely  there  can  be  no  sound 
reason  why  a  corporation  should  not  be.  In  this  respect,  I  should  be 
disposed  to  put  corporations  and  individuals  upon  the  same  footing. 

But  it  is  said  a  corporation  acts  by  agents,  and  if  it  employs  faithful^ 
and  competent  agents,  this  is  all  that  can  be  required.     True,  a  rail- 
road company  must  act  by  agents,  but  I  apprehend  it  must  be  responsi- 

contract.  The  employer  implicitly  engages  to  use  reasonable  care  and  diligence  to 
secure  the  safety  of  tlie  employee,  and  among  other  things,  to  exercise  reasonable  care 
in  the  selection  of  prudent  fellow-servants.  He  also  engages  that  every  one  placed  in 
authority  over  the  servant,  with  power  to  control  and  direct  him  in  the  performance  of 
his  duties,  will  exercise  reasonable  care  in  providing  for  his  safety,  whether  such  supe- 
rior be  a  fellow-servant  or  not,  in  the  ordinary  sense.  The  superior,  in  bis  relation  to 
the  subordinate  servant,  is,  in  the  language  of  Judge  Day,  in  Railroad  Co.  v.  Lewis,  33 
Ohio  St.  196,  the  alter  ego  of  the  master.  The  doctrine,  which  imputes  to  the  master 
the  negligence  of  a  servant  to  whom  be  has  delegated  authority  over  other  servants, 
has  been  firmly  ingrafted  in  the  jurisprudence  of  this  state  ever  since  the  case  of  Little 
Miami  R.  R.  Co.  v.  Stevens." 

And  see  Louisville  &  Nashville  Railroad  Co.  v.  Collins,  2  Duvall  (Ky.),  114  (1865); 
Chicago,  Milwaukee  &  St.  Paul  Ry.  Co.  u.  Ross,  112  U.  S.  377  (1884).  —  Ed. 

^  The  opinion  has  been  abbreviated.  —  Ed. 


SECT.  II.]  SKIPP   V.    EASTERN    COUNTIES    R.\ILWAY    CO.  831 

ble  for  the  acts  or  neglects  of  those  agents,  so  long  as  the  agents  are 
acting  within  the  scope  of  their  authorit\\  The  superintendent  is  a 
proper  representative  of  the  Company,  and  perhaps  to  a  certain  extent 
the  conductor  of  a  train  may  be.  But  the  employees  or  servants  of  the 
Company,  engaged  in  making  or  repairing  their  road,  or  in  running 
their  cars,  cannot  be  held  to  be  their  agents. 

It  is  because  this  injury  resulted  from  the  negligence  of  the  Company 
itself,  or  of  an  agent  whose  duty  it  was  to  give  the  notice  before  referred 
to,  tliat  I  hold  the  judgment  should  be  affirmed  ;  and  it  seems  to  me 
the  case  is  entirely  different  from  those  referred  to  in  the  books.  .  .  . 

Spalding,  J.,  dissenting.^ 


SKIPP  V.  THE  EASTERN  COUNTIES  RAILWAY  COMPANY. 
Exchequer.     1853. 

[9  Exch.  223.] 

The  declaration  stated,  that  before  and  at  the  time  of  the  plaintilof's 
entering  into  the  service  and  employ  of  the  defendants,  and  of  the  com- 
mitting of  the  grievance  hereinafter  mentioned,  the  defendants  were 
the  proprietors  of  a  certain  railway',  and  used  and  accustomed  to  carry 
passengers  and  goods  as  common  carriers  for  hire  upon  the  said  rail- 
wa}-,  in  and  b}'  and  with  certain  trains  of  carriages  and  trucks  drawn 
by  locomotive  engines  upon  the  said  railwa}' ;  and  certain  servants  of 
the  defendants  called  guards  were  then  used  and  accustomed,  amongst 
other  duties,  to  aid  and  assist  in  preparing  trains  to  be  started  upon 
the  said  railwa}^ ;  of  all  which  premises  the  defendants  then  had  notice. 
And  thereupon  the  plaintiff  entered  into  the  service  and  employ  of  the 
defendants,  and  the  defendants  retained  and  emplo^-ed  the  plaintiff, 
and  he  then  became  their  servant  in  the  capacitj'  of  such  guard  as 
aforesaid,  upon  the  term  and  condition  (amongst  others),  that  the 
defendants  should  take  all  due  and  reasonable  means  and  precautions 
in  order  to  prevent  unreasonable  and  unnecessary  danger  being  caused 
to  the  plaintiff  in  the  performance  of  his  dut^y  as  such  guard  as  afore- 
said. Yet  the  plaintiff  in  fact  saith  that,  although  he  continued  in  the 
said  service  and  employ  of  the  defendants  in  the  capacit}'  and  upon 
the  terras  and  conditions  aforesaid  for  a  long  time,  and  the  plaintiff 
during  all  that  time  did  all  things  ;  and  all  things  then  occurred  and 
happened  necessary-  to  entitle  him  to  have  the  said  term  and  condition 
performed  b}'  the  defendants  ;  3'et  the  defendants  did  not,  during  the 
said  last-mentioned  time  or  an}'  part  thereof,  take  such  due  or  reason- 
able means  or  precautions  as  aforesaid,  but  altogether  omitted  so  to 
do  ;  and  a  certain  train,  which  the  plaintiff  in  the  performance  of  his 

^  This  opinion  contained  an  extended  review  of  the  authorities  as  to  fellow-ser 
vants.  —  Ed. 


832  SKIPP   V.    EASTERN    COUNTIES   RAILWAY   CO.        [CHAP.  VI. 

duties  as  such  guard  as  aforesaid  had  to  aid  and  assist  in  preparing  to 
be  started  on  the  said  railway,  and  whilst  the  plaintiff  was  so  aiding 
and  assisting  as  last  aforesaid,  for  the  want  of  the  defendants  taking 
such  due  or  reasonable  means  or  precautions  as  aforesaid  in  that  behalf, 
and  on  no  other  account,  cast  and  threw  the  plaintiff,  whilst  he  was 
performing  his  said  duty  as  such  guard  as  aforesaid,  down  to  and  upon 
the  said  railway  and  under  the  said  train,  and  the  wheels  of  the  same 
then,  by  means  of  the  premises,  crushed  the  arm  of  the  plaintiff,  whereby 
the  plaintiff  was  forced  and  obliged  to  and  did  have  his  arm  amputated, 
and  was  hindered  and  prevented  from  performing  or  transacting  any 
affairs  or  business  ;  and  the  plaintiff,  by  reason  of  the  said  amputation, 
will  never  again  be  able  to  obtain  his  livelihood.  Plea,  not  guilty,  and 
issue  thereon. 

At  the  trial,  before  Martin,  B.,  at  the  London  Sittings  in  the  present 
Term,  it  appeared  that  the  action  was  brought  by  the  plaintiff  to  recover 
compensation  for  an  injury  he  had  received  whilst  in  the  service  of  the 
Company.  The  plaintiff  had  for  many  years  acted  as  a  guard,  and 
had  for  three  months  prior  to  the  accident  been  on  duty  at  Lea  Bridge 
station  upon  the  line.  It  was  his  dutj-  at  that  station  to  attach  the 
trucks  of  the  goods  train  which  were  to  proceed  to  Norwich.  The  time 
allowed  for  the  duty  was  limited,  as  the  next  passenger  train  followed 
in  about  a  quarter  of  an  hour.  In  attaching  the  trucks  the  plaintiff 
was  knocked  down,  and  his  arm  was  so  severely  injured  that  it  became 
necessary*  to  amputate  it.  Evidence  was  given  to  show  that  the  work 
■was  too  much  for  the  number  of  servants  employed  by  the  Company ; 
but  it  did  not  appear  that  the  plaintiff  had  ever  made  any  complaint 
upon  the  subject  to  the  Compau}-. 

Upon  this  state  of  facts,  the  learned  Judge  was  of  opinion  that  the 
Company  was  not  liable.  The  plaintiffs  counsel  requested  that  the 
case  might  be  submitted  to  the  jury,  but  this  his  Lordship  declined  to 
do  ;  and  the  plaintiff  was  nonsuited. 

James  now  moved  for  a  rule  7iisi  for  a  new  trial,  on  the  ground  of 
misdirection.  The  plaintiff  does  not  dispute  the  general  principle 
which  has  been  recognized  and  acted  upon  in  the  cases  of  Hutchinson 
V.  York,  Newcastle,  and  Berwick  Railway  Company,  5  Exch.  343, 
Wigmore  v.  Jay,  Id.  354,  and  Priestley  v.  Fowler,  3  M.  &  W.  1,  that 
a  master  is  not  in  general  liable  to  one  servant  for  damage  resulting 
from  the  negligence  of  another  ;  but  he  rests  his  present  cause  of  action 
upon  a  different  ground.  The  plaintiff  complains  that  the  misfortune 
occurred  by  reason  of  the  defendants'  omission  to  provide  a  suf!icicnt 
number  of  servants  to  perform  the  work  in  which  he  was  engaged. 
The  only  plea  being  not  guilty,  the  first  question  is,  what  are  the  alle- 
gations in  the  declaration  which  are  admitted.  The  allegation  of  the 
duty  which  tlie  defendants  have  imposed  upon  themselves,  and  upon 
which  undertaking  the  plaintiff  entered  their  service,  is  not  traversed. 
[Parke,  B.  The  defendants  were  bound  to  use  all  due  and  reasonable 
care  only.     Here  the  plaintiff  was  engaged  in  the  same  work  for  several 


SECT.  TI.J         SKIPP   V.   EASTERN    COUNTIES    RAILWAY    CO.  833 

months,  and  made  no  complaint  whatever  as  to  the  inadequacy  of  the 
means  employed.  If  he  felt  that  he  was  in  danger,  by  reason  of  the 
want  of  a  sufficient  number  of  fellow-servants,  he  should  not  have 
accepted  the  service.]  The  time  allowed  for  the  work,  in  the  perform- 
ance of  which  the  accident  occurred,  was  ver^-  limited.  [Platt,  B. 
The  case  falls  within  the  maxim,  volenti  nonfit  injuria.  Martin,  B. 
I  acted  upon  that  principle  at  the  trial,  being  of  opinion  that  the  Com- 
pany was  not  liable,  as  the  plaintiff  had  done  the  same  work  for  several 
montlis,  without  any  intimation  on  his  part  that  he  was  unable  to  carry 
it  on  ;  and  I  therefore  considered  him  a  voluntary  agent.]  It  was  a 
question  for  the  jury,  whether  the  Compan}-  had  in  their  employment 
a  sufficient  number  of  servants  for  the  performance  of  this  work.  If 
they  had  not,  they  did  not  use  due  and  reasonable  care  to  prevent 
danger. 

Parke,  B.  There  ought  to  be  no  rule.  This  is  an  attempt  to  cast 
upon  the  jury  the  duty  of  fixing  the  number  of  servants  which  a  Rail- 
way Company  ought  to  have ;  but  in  a  case  like  the  present,  the 
Company  are  themselves  the  proper  judges  of  the  number  the}'  require 
for  carrying  on  the  business  of  the  line  ;  and  the  question  proposed  was 
not  a  proper  one  for  the  jury. 

Aldersox,  B.  As  between  the  public  and  the  Compan}',  the  former 
ma}-  be  the  proper  judges  of  the  number  of  servants  required  ;  but  that 
is  not  so  as  between  the  Company  and  their  own  servants. 

Platt,  B.,  concurred. 

Martin,  B.  I  think  that  if  the  case  had  gone  to  the  jury,  they 
must  have  found  a  verdict  for  the  defendants.  But  as  I  entertained 
a  very  strong  opinion  upon  the  matter,  I  thought  it  clearly  to  be  my 
duty  not  to  leave  the  case  to  them,  upon  the  chance  of  their  finding 
a  verdict  for  the  plaintiff  from  motives  of  commiseration.  The  plaintiff 
brought  the  accident  upon  himself,  for,  if  he  found  that  he  could  not  do 
the  work  which  was  set  him,  he  ought  to  have  declined  it  in  the  first 
Instance.  He,  however,  carried  it  on  for  several  months,  and  never 
made  the  least  complaint  upon  the  matter. 

Rule  refused} 

^  "  xxvir.  Scienti  et  consentienti  non  fit  injuria  neque  dolus."  Sexti  Decretalium, 
lib.  V.  tit.  xii.,  De  regulis  juris.     See  ante,  p.  1,  n.  1. 

In  Dynen  v.  Leach,  26  L.  J.  n.  s.  Ex.  221  (IS.'iT),  Pollock,  C  B.,  said:  "  A  master 
is  not  bound  to  use  the  safest  method.  A  pair  of  steps  is  safer  than  a  ladder,  but 
business  could  not  go  on  if  ladders  were  discarded."  And  Bkajiwell,  B.,  said : 
"  There  is  nothing  legally  wrongful  in  the  use  by  an  employer  of  works  or  machinery 
more  or  less  dangerous  to  his  workmen,  or  less  safe  than  others  that  might  be  adopted 
It  may  be  inhuman  so  to  carry  on  his  works  as  to  expose  his  workmen  to  peril  of  their 
lives,  but  it  does  not  create  a  right  of  action  for  an  injury  which  it  may  occasion  when, 
as  in  this  case,  the  workman  has  known  all  the  facts  and  is  as  well  acquainted  as  the 
master  with  the  nature  of  the  machinery  and  voluntarily  uses  it." 

In  Woodley  v.  Metropolitan  District  Ry.  Co.,  2  Ex.  D.  384,  388-389  (C.  A.,  1877), 
CocKBURX,  C.  J.,  said  :  "  A  man  who  enters  on  a  necessarily  dangerous  employment 
with  his  eyes  open  takes  it  with  its  accompanying  dangers.  On  the  other  hand,  if  the 
danger  is  concealed  from  him  and  an  accident  happens  before  he  becomes  aware  of  it, 

63 


834  TARRANT   V.    WEBB.  [CHAP.  VI. 


TARRANT  v.   WEBB. 

Common  Pleas.     1856. 

[18  C.  23.  797.] 

This  was  an  action  brought  by  the  plaintiff,  a  workman,  to  recover 
damages  for  an  injury  sustained  by  him  from  the  falling  of  a  scaffold- 
ing on  which  he  was  working  in  the  employ  of  the  defendant,  a  house 
decorator. 

The  declaration  stated  that  the  plaintiff  was  employed  by  the  defend- 
ant to  do  certain  work  for  the  defendant  on  a  scaffolding  erected  by 
the  defendant  for  that  purpose  ;  yet  that  the  defendant  so  carelessly, 
negligently,  and  improperly  erected  the  said  scaffolding,  and  employed 
the  plaintiff  to  work  thereon,  that,  by  reason  of  the  negligence,  care- 
lessness, and  improper  conduct  of  the  defendant,  the  plaintiff  was 
exposed  to  unreasonable  risk  in  his  said  work,  and  the  said  scaffolding 
gave  wa}-,  and  the  said  plaintiff  was  thrown  therefrom  and  seriously- 
injured,  and  became  and  was,  and  still  continued,  unable  to  follow  his 
trade  as  a  painter,  and  had  been  and  was  otherwise  damnified,  and  the 
plaintiff  claimed  £200. 

The  defendant  pleaded  not  guilty,  whereupon  issue  was  joined. 

The  cause  was  tried  before  Ckowder,  J.,  at  the  second  sitting  at 
Westminster  in  Trinity  Term  last.  The  facts  were  as  follows  :  The 
defendant  was  employed  to  decorate  the  Carlton  Club-house.  In  order 
to  paint  the  entrance  hall,  a  scaffolding  was  erected  about  thirty  feet 

or  if  he  is  led  to  expect,  or  may  reasonably  expect,  that  proper  precautions  will  be 
adopted  by  the  employer  to  prevent  or  lessen  the  danger,  and  from  the  want  of  such 
precautions  an  accident  happens  to  him  before  he  has  become  aware  of  their  absence, 
he  may  hold  the  employer  liable.  If  he  becomes  aware  of  the  danger  which  has  been 
concealed  from  him,  and  which  he  had  not  the  means  of  becoming  acquainted  with 
before  he  entered  on  the  employment,  or  of  the  want  of  the  necessary  means  to  prevent 
mischief,  his  proper  course  is  to  quit  the  employment.  If  be  continues  in  it,  he  is  in 
the  same  position  as  though  he  had  accepted  it  with  a  full  knowledge  of  its  danger  in 
the  first  instance,  and  must  be  taken  to  waive  his  right  to  call  upon  the  employer  to  do 
what  is  necessary  for  his  protection,  or  in  the  alternative  to  quit  the  service.  If  he  con- 
tinues to  take  the  benefit  of  the  employment,  he  must  take  it  subject  to  its  disadvant- 
ages. He  cannot  put  on  the  employer  terms  to  which  he  has  now  full  notice  that  the 
employer  never  intended  to  bind  himself.  It  is  competent  to  an  employer,  at  least  so 
far  as  civil  consequences  are  concerned,  to  invite  persons  to  work  for  him  under  circum- 
stances of  danger  caused  or  aggravated  by  want  of  due  precautions  on  the  part  of  the 
employer.  If  a  man  chooses  to  accept  the  employment,  or  to  continue  in  it  with  a 
knowledge  of  the  danger,  he  must  abide  tlie  consequeuces,  so  far  as  any  claim  to  com- 
pensation against  the  employer  is  concerned.  Morally  speaking,  those  who  employ 
men  on  dangerous  work  without  doing  all  in  their  power  to  obviate  the  danger  are 
highly  reprehensible.  .  .  .  The  workman  who  depends  on  liis  employment  for  the 
bread  of  himself  and  his  family  is  thus  tempted  to  incur  risks  to  which,  as  a  matter 
of  humanity,  he  ought  not  to  be  exposed.  But  looking  at  the  matter  in  a  legal  point 
of  view,  if  a  man,  for  the  sake  of  the  employment,  takes  it  or  continues  in  it,  with  a 
knowledge  of  its  risks,  he  must  trust  to  himself  to  keep  clear  of  injury."  —  Ed. 


SECT.  II.]  TARRANT   V.    WEBB.  835 

high,  upon  which  the  plaintiff  and  four  other  journeymen  were  at  work. 
This  scaffolding  having  been  insecurely  built,  one  of  the  upper  poles 
broke,  and  the  plaintiff  was  precipitated  to  the  pavement  below,  and 
severely  injured. 

The  scaffolding  was  erected  by  one  Martin,  who  was  employed  for 
that  purpose  by  the  defendant,  — the  defendant  himself  not  interfering 
with  it,  except,  that,  when  Martin  told  him  that  the  painters  said  it 
wanted  an  additional  upright  in  the  centre  to  make  it  secure,  the 
defendant  observed,  tliat,  if  he  (Martin)  hearkened  to  the  painters,  he 
would  have  nothing  else  to  do. 

It  appeared  that  the  accident  was  mainly  attributable  to  the  want  of 
that  additional  upright ;  but  one  of  the  witnesses  ascribed  it  partly  to 
an  undue  accumulation  of  boards  which  had  been  placed  on  the  scaf- 
folding by  the  workmen  themselves. 

On  the  part  of  the  defendant  it  was  submitted,  on  the  authority  of 
Wigmore  v.  Jay,  5  Exch.  355,  that  the  defendant  was  not  responsible 
for  the  failure  of  the  scaffolding,  if  he  neither  personally  interfered 
with  its  erection,  nor  knowingly  employed  an  unskilful  and  incompetent 
person  to  erect  it. 

The  learned  judge,  in  leaving  the  case  to  the  jury,  told  them,  that, 
if  they  were  of  opinion  that  the  scaffolding  was  erected  under  the  per- 
sonal direction  and  interference  of  the  defendant,  and  was  insufficient, 
or  that  the  person  employed  by  the  defendant  for  the  purpose  of  erect- 
ing it  was  an  incompetent  person,  the  plaintiff  was  entitled  to  recover. 

The  jurj-  returned  a  verdict  for  the  plaintiff,  damages  £25,  observ- 
ing that  they  thought  Martin  was  not  a  proper  person  to  erect  the 
scaffolding. 

31.  Smith,  in  the  course  of  the  term,  moved  for  a  new  trial,  on  the 
grounds,  —  first,  of  misdirection  on  the  part  of  the  learned  judge,  in 
telling  the  jury  that  the  defendant  would  be  liable  if  he  employed 
incompetent  persons  to  erect  the  scaffolding  ;  for  that  the  employment 
of  incompetent  persons  simply  would  not  render  the  defendant  liable, 
and  at  all  events  would  not  do  so  unless  the  defendant  knew  of  their 
incompetency,  of  which  there  was  no  evidence ;  secondlv,  that  the 
verdict  was  against  evidence.  He  also  moved  in  arrest  of  judgment, 
on  the  ground  that  the  declaration  did  not  show  the  breach  of  any  duty 
for  which  the  defendant  was  liable  to  the  plaintiff ;  that  no  scienter  of 
the  defendant  was  alleged  ;  and  that  it  was  consistent  with  the  declara- 
tion that  the  plaintiff  knew  that  the  scaffolding  was  unsound,  and 
voluntarily'  undertook  the  risk. 
Udall  now  showed  cause. 

Jehvis,  C.  J.  I  am  of  opinion  that  the  rule  must  be  made  absolute 
for  a  new  trial,  the  case  having  miscarried  in  the  wa}^  pointed  out  by 
Mr.  Smith  on  moving.  It  is  unnecessary'  to  consider  the  question  as 
to  the  liability  of  a  master  for  an  injur}^  done  to  a  workman  through  the 
negligence  of  a  fellow- workman.  The  rule  is  now  well  established,  that 
no  action  lies  against  the  master  for  the  consequences  to  a  servant  of 


836  CLARKE  V.   HOLMES.  [CHAP.  VI. 

the  mere  negligence  of  his  fellow.  That,  however,  does  not  negative 
liabilit}'  in  every  case.  The  master  may  be  responsible  where  he  is  per- 
sonally guilty  of  negligence  ;  but  certainly'  not  where  he  does  his  best 
to  get  competent  persons.  He  is  not  bound  to  wan-ant  their  compe- 
tency. The  summing  up,  I  apprehend,  fails  in  this,  that  the  jur}'  might 
have  been  of  opinion  that  the  defendant  used  every  possible  care  to 
employ  a  competent  person  to  erect  the  scaffolding,  and  yet  that  he 
was  liable  because  it  turned  out  that  Martin  was  incompetent. 

Cresswell,  J.  I  am  of  the  same  opinion.  The  question  was  dis- 
cussed the  other  day  in  the  Court  of  Exchequer  in  a  case  of  Degg  v. 
The  Midland  Railway  Company,  1  H.  &  N.  773. 

Williams,  J.  The  cases  expressly  la}'  it  down  that  a  master  is  not 
generally  responsible  for  an  injur}-  to  a  servant  from  the  negligence  of 
a  fellow-servant.  But  that  rule  is  subject  to  this  qualification,  that  the 
master  is  guilty  of  no  want  of  care  in  the  selection  of  proper  servants. 
Unless  the  master  is  guilty  of  negligence  in  that  respect,  the  case  is  not 
taken  out  of  the  general  rule.  Mule  absolute  accordingly. 


CLARKE,  Appellant,  v.  HOLMES,  Respondent. 

Exchequer  Chamber.     1862. 

[7  H.  Sr  N.  937.] 

This  was  an  appeal  from  the  decision  of  the  Court  of  Exchequer  in 
discharging  a  rule  to  enter  a  nonsuit  or  grant  a  new  trial.  The  plead- 
ings and  facts  fully  appear  in  the  report  of  the  case,  6  H.  &  N.  349.^ 

1  In  6  H.  &  N.  349,  351-352,  the  facts  are  thus  stated  :  — 

"  The  defendant  was  a  cotton-spinner  at  Manchester,  and  the  plaintiff  was  employed 
hy  him  in  his  factory  as  '  under  over-looker,'  at  weekly  wages.  It  was  the  plaintiff's 
duty  to  oil  the  machinery  whenever  it  was  required,  which  was  several  times  a  day. 
This  machinery  was  worked  hy  steam-power,  the  motion  being  communicated  to 
wheels  through  the  medium  of  shafts.  On  the  5th  of  July,  1857,  the  plaintiff  was 
engaged  in  oiling  a 'scutching  machine'  (for  cleaning  and  tearing  the  cotton),  and 
in  order  to  reach  the  spot  where  the  oil  was  poured  into  the  machinery  through 
small  holes,  he  placed  his  left  arm  on  the  machine  near  the  wheels  to  support  himself, 
and  with  his  right  liand  lie  held  the  vessel  containing  the  oil,  which  he  poured  into 
the  machinery.  His  left  arm  was  drawn  into  the  machine  and  torn  off.  When  the 
plaintiff  first  entered  the  service  the  machine  was  fenced  with  an  iron  guard,  but  it 
was  broken  hy  accident,  and  the  machine  remained  unfenced  for  above  a  year.  The 
plaintiff  had  frequently  complained  to  the  superintendent  of  the  danger,  and  he  prom- 
ised that  the  guard  should  be  mended.  On  one  occasion  the  defendant  had  looked  at 
the  machine  and  said  that  the  guard  should  be  mended.  In  some  factories  it  was  tlie 
practice  to  stop  the  machines  whilst  they  were  being  oiled,  but  not  in  the  defendant's, 
the  superintendent  having  directed  the  plaintiff,  when  he  was  first  employed,  not  to  do 
so.  There  were  two  other  scutching  machines  and  six  other  machines  (three  '  breaks' 
and  three  '  finishing '  machines)  in  the  same  room,  and  several  women  worked  in  it 
feeding   the  scutching  machines  with  cotton.     There  was  a  passage   between   the 


SECT.  II.]  CLARKE   V.   HOLMES.  83T 

T.  Jones  argued  for  the  defendant  (the  appellant).* 

Bliss  (Aspland  with  him),  for  the  plaintiff  (the  respondent). 

Cur.  adv.  vutt. 

CocKBUKN,  C.  J.^  Independently  of  any  statutory-  duty  or  obligation, 
there  was  negligence  in  the  defendant  in  not  fencing  the  machinery  on 
which  the  plaintiff  was  employed.  And  although  the  declaration  in 
this  action  is  based  on  the  alleged  statutory  dut\-  of  the  defendant  to 
fence  the  machinery,  the  leave  to  move  was  reserved  on  the  question  of 
negligence,  and  there  is  full  power  to  amend  the  pleadings  ;  and  we 
can  therefore  so  mould  the  declaration  as  to  make  it  appUcable  to  the 
grounds  on  which  we  think  the  case  should  be  decided. 

I  consider  the  doctrine  laid  down  by  the  House  of  Lords,  in  the  case 
of  The  Bartonshill  Coal  Company  r.  Reid,  as  the  law  of  Scotland  with 
reference  to  the  duty  of  a  master,  as  applicable  to  the  law  of  England 
also,  namely,  that  where  a  servant  is  employed  on  machinery  from  the 
use  of  whicli  danger  ma}-  arise,  it  is  the  duty  of  the  master  to  take  due 
care,  and  to  use  all  reasonable  means,  to  guard  against  and  prevent 
an}'  defects  from  which  increased  and  unnecessary  danger  may  occur. 
No  doubt,  when  a  servant  enters  on  an  employment  from  its  nature 
necessaril}'  hazardous,  he  accepts  the  service  subject  to  the  risks  inci- 

ttiachines,  but  none  of  the  worknaen  had  any  business  to  pass  the  spot  where  the 
plaintiff  met  with  the  accident,  although  there  was  notliing  to  prevent  them,  and  many 
were  accustomed  to  do  so. 

"  It  was  submitted,  on  behalf  of  the  defendant :  first,  that  this  machinery  was  not 
'mill-gearing'  wliich  was  required  to  be  fenced  by  the  7  &  8  Vict.  c.  15.  Secondly, 
that  the  plaintiff  had  caused  the  injury  by  his  owti  negligence.  Thirdly,  that  the 
defendant  was  not  liable,  inasmuch  as  the  plaintiff  was  the  servant  of  the  defendant 
and  did  the  work  voluntarily  and  of  his  own  accord,  and  with  full  knowledge  of  the 
danger.  The  learned  judge  reserved  the  points,  the  pleadings  to  be  amended,  if  neces- 
sary, and  his  lordship  left  it  to  the  jury  to  say,  first,  whether  the  injury  was  caused  by 
the  want  of  proper  caution  on  the  part  of  the  defendant ;  secondly,  whether  the 
plaintiff  was  guilty  of  negligence,  either  in  the  manner  in  which  he  oiled  the  ma- 
chinery, or  in  continuing  in  the  defendant's  service  after  the  fencing  was  removed.  The 
jury  found  the  first  question  in  the  affirmative,  and  the  second  in  the  negative ;  and 
they  gave  a  verdict  for  the  plaintiff,  with  £200  damages. 

"  T.  Jones,  in  last  Michaelmas  Term,  obtained  a  rule  nisi  to  enter  a  nonsuit,  or  for  a 
new  trial."  —  Ed. 

1  In  the  course  of  tins  argument  counsel  said :  "  There  was  no  accession  of  danger 
beyond  that  originally  accepted."  Thereupon  Cockburn,  C.  J.,  said:  "The  reason 
why  no  action  will  lie,  under  ordinary  circumstances,  is  because  the  servant  knows 
that  he  has  undertaken  a  dangerous  service  ;  here,  there  was  extraordinary  danger, 
and  was  only  submitted  to  on  a  promise  by  the  master  that  it  should  be  remedied." 
Counsel  then  said  :  "  Priestley  v.  Fowler  shows  that  whenever  a  servant  accepts  a 
dangerous  occupation  he  must  bear  the  risk."  Thereupon  Cockburn,  C.  .J.,  said : 
"  That  is,  whatever  is  fairly  within  the  scope  of  the  occupation,  including  the  negli- 
gence of  fellow-servants  ;  here  it  is  the  negligence  of  the  master."  And  Cromptox, 
J.,  added :  "  It  cannot  be  made  part  of  the  contract,  that  the  master  shall  not  be  liable 
for  his  own  negligence." — Ed. 

2  Passages  declining  to  pass  upon  the  applicability  of  7  «&.  8  Vict.  c.  15,  and  19 
&  20  Vict,  c  38  are  omitted  from  the  opinions  of  Cockburn,  C.  J.,  and  Cbomptok, 
J.  — Ei^ 


838  CLAEKE  V.    HOLMES.  [CHAP.  VL 

dental  to  it ;  or,  if  he  thinks  proper  to  accept  an  emplo3'ment  on  ma- 
chiner\'  defective  from  its  construction,  or  from  the  want  of  proper 
repair,  and  with  knowledge  of  the  facts  enters  on  the  service,  the 
master  cannot  be  held  liable  for  injurv  to  the  servant  within  the  scope 
of  the  danger  which  both  the  contracting  parties  contemplated  as  inci- 
dental to  the  emplo^'ment.  The  rule  I  am  hning  down  goes  only  to 
this,  that  the  danger  contemplated  on  entering  into  the  contract,  sliall 
not  be  aggravated  b}"  an}'  omission  on  the  part  of  the  master  to  keep 
the  machinery  in  the  condition  in  which,  from  the  terms  of  the  contract 
or  the  nature  of  the  employment,  the  servant  had  a  right  to  expect 
that  it  would  be  kept. 

In  the  present  case,  at  the  time  the  plaintiff  entered  on  the  employ- 
ment, the  machinery  was  properly  fenced  ;  on  its  ceasing  to  be  so,  the 
manager  of  the  works,  on  the  remonstrance  of  the  plaintiff,  promised  in 
the  presence  of  the  defendant,  the  master,  that  tiie  defect  should  be  made 
good.  It  must  be  taken,  therefore,  that  at  the  time  the  contract  be- 
tween the  plaintiff  and  defendant  was  entered  into,  it  was  contemplated 
by  the  parties  that  the  machiner}-  should  be  fenced.  It  follows  that, 
through  the  negligence  of  the  master  in  omitting  to  keep  the  machinery 
fenced,  the  servant  has  been  exposed  to  danger  to  which  he  ought  not 
to  have  been  subjected  ;  and,  the  injur}'  of  which  the  plaintiff  com- 
plains having  thus  arisen,  the  defendant  is  justly  and  properly  liable. 

It  was,  indeed,  strongly  urged  upon  us,  on  the  part  of  the  defendant, 
that,  as  the  plaintiff,  upon  becoming  aware  that  the  machinery  was  no 
longer  properly  fenced,  instead  of  refusing  to  go  on,  as  he  might  have 
done,  continued  to  perform  his  service  with  a  knowledge  of  the  in- 
creased risk  to  which  he  was  exposed,  he  must  be  taken  to  have  volun- 
tariU'  incurred  the  danger,  and  is,  therefore,  in  the  same  position  as  if 
he  had  originally  accepted  the  service  as  one  to  be  performed  on  un- 
fenced  machinery.  I  am,  however,  of  opinion,  that  there  is  a  sound 
distinction  between  the  case  of  a  servant  who  knowingly  enters  into  a 
contract  to  work  on  defective  machiner}',  and  that  of  one,  who,  on  a 
temporary  defect  arising,  is  induced  by  the  master,  after  the  defect  has 
been  brought  to  the  knowledge  of  the  latter,  to  continue  to  perform 
his  service  under  a  promise  that  the  defect  shall  be  remedied.  In 
the  latter  case  it  seems  to  me,  that  the  servant  b}'  no  means  waives 
his  right  to  hold  the  master  responsible  for  an}'  injury  which  may  arise 
to  him  from  the  omission  of  the  master  to  fulfil  his  obligation. 

No  doubt,  a  defect  thus  arising  in  machinery,  may  be  such  that  no 
man  of  ordinary  prudence  would  run  the  hazard  of  working  on  it.  If  a 
jury  should  find  that  a  party  complaining  had  materially  contributed  to 
the  injury  by  his  own  rashness,  the  action  could  not  be  maintained, 
inasmuch  as  it  is  well  established  that  a  plaintiff  who  has  materially 
contributed  to  his  own  injury,  by  his  own  negligence,  cannot  recover, 
although  he  may  show  negligence  in  the  opposite  party.  But,  the 
question  whether  the  injury  of  which  a  plaintiff  complains  is  to  be 
ascribed  whoUv  to  the  negligence  of  the  defendant,  or  whether  the 


SECT.  II.]  CLAKKE   V.    HOLMES.  839 

plaintiff  has  had  any  share  in  bringing  it  about,  is  one  wlioll}'  for  the 
jury.  In  the  present  case,  the  jury  have  determined  this  question  in 
favor  of  the  plaintiff,  and  we  are  bound  by  their  decision.  It  is, 
indeed,  put  to  us  that,  notwithstanding  this  finding  of  tlie  jur\',  the 
knowledge  of  the  plaintiff  that  the  machinery  was  unfenced,  is,  in 
point  of  law,  sufficient  to  prevent  the  plaintiff  from  recovering.  But  I 
am  of  opinion  that  it  is  only  a  fact  in  the  case,  to  be  taken  into  con- 
sideration b}-  the  jur^y,  with  all  the  other  facts  and  circumstances,  in 
determining  the  question  whether  the  plaintiff  has  himself  helped  to 
bring  about  the  accident  in  respect  of  which  he  seeks  to  charge  the 
defendant.  In  this  sense,  and  in  this  sense  onl}',  such  knowledge 
might  afford  an  answer  to  the  action.  It  does  not  do  so  in  point 
of  law.  And,  in  the  present  case,  on  the  finding  of  the  jury,  it  does 
not  do  so  in  point  of  fact.  I  am,  therefore,  of  opinion,  that  the  Court 
of  Exchequer  were  right  in  refusing  to  disturb  the  verdict  for  the 
plaintiff. 

WiGHTMAX,  J.  I  concur  in  the  judgment  of  the  Lord  Chief  Justice, 
but  not  in  the  reasons  on  which  it  is  founded. 

Cromptox,  J.,  said.  I  have  arrived  at  the  same  conclusion.  It  seems 
to  me  that  the  only  question  reserved  to  us  is  whether  the  mere  knowl- 
edge of  the  plaintiff,  when  he  did  the  act,  of  the  dangerous  state  of  the 
machineiT,  is  a  bar  to  his  recovery,  notwithstanding  the  negligence  of 
the  defendant.  I  think  it  must  be  taken  to  have  been  found  by  the 
juiy  that  there  was  negligence  on  the  part  of  the  defendant  for  which 
he  is  responsible.  ...  I  found  m}'  judgment  on  two  propositions, 
namely,  that  there  is  no  defence  under  the  principle  of  law  laid  down 
in  Priestley  v.  Fowler,  3  M.  &  W.  1,  and  the  plaintiff  has  not  contributed 
to  his  injur}'  b}*  his  own  negligence.  Where  a  partv  enters  upon  a  ser- 
vice he  must  be  supposed  to  have  contemplated  dangers  arising  within 
the  scope  of  his  employment,  including  the  negligence  of  his  fellow- 
servants,  and  therefore  for  ordinary  risks  he  cannot  expect  to  be  in- 
demnified. Here  we  need  not  consider  what  personal  knowledge  the 
plaintiff  had  of  the  danger,  because  there  was  a  neglect  of  duty  on  the 
part  of  the  defendant  in  not  keeping  the  machinery'  fenced,  for  which 
he  is  responsible.  It  is  said  that  mere  knowledge  is  a  defence  ;  I  can- 
not think  so.  The  party  cannot  recover  if  he  has  contributed  to  the 
accident ;  and  I  agree  with  the  observation  of  m}-  lord,  that  knowledge 
is  only  a  part  of  negligence,  and  it  is  still  a  question  whether  there 
was  negligence  or  not.  I  am  confirmed  in  that  view  by  what  Lord 
Campbell  said  in  Senior  v.  Ward,  1  E.  &  E.  385.  Upon  these  grounds 
I  am  of  opinion  that  the  judgment  of  the  Court  below  ought  to  be 
affirmed. 

WiLLEs,  J.     I  agree  with  the  opinion  of  my  brother  Wigiitman. 

Byles,  J.  I  am  of  opinion  that  the  judgment  of  the  Court  of  Ex- 
chequer must  be  affirmed. 

This  is  a  case  of  very  great  importance,  and  I  am  anxious  that  its 
decision  should  repose  on  what  seems  to  me  the  true  ground. 


840  CLARKE  V.    HOLMES.  [CHAP.  VL 

I  do  not  rest  the  right  of  the  plaintiff  to  recover  on  the  statutable 
obligation  incumbent  on  the  master  to  fence  the  machinery,  nor  yet  on 
the  personal  knowledge  of  the  master  that  the  machinery'  was  iniprop- 
erh'  left  unfenced,  though  I  do  not  presume  to  intimate  any  disagree- 
ment with  the  Court  of  P^xchequer. 

But  I  think  the  master  liable  on  the  broader  ground,  to  wit,  that  the 
owner  of  dangerous  machinery  is  bound  to  exercise  due  care  that  it  is 
in  a  safe  and  proper  condition. 

The  case  of  Priestley  v.  Fowler  introduced  a  new  chapter  into  the 
law,  but  that  case  has  since  l^een  recognized  by  all  the  courts,  includ- 
ing the  Court  of  Error  and  the  House  of  Lords.  So  that  the  doctrine 
there  laid  down,  with  all  the  consequences  fairly  deducible  from  it,  are 
part  of  the  law  of  the  land.  But  the  principles  laid  down  in  Priestley  v. 
Fowler,  and  all  the  examples  there  given  of  their  application,  relate  to 
the  conveniences  and  casualties  of  ordinary  or  domestic  life,  and  ought 
not  to  be  strained  so  as  to  regulate  the  rights  and  liabilities  arising 
from  the  use  of  dangerous  machinery. 

It  is,  in  most  cases,  impossible  that  a  workman  can  judge  of  the  con- 
dition of  a  complex  and  dangerous  machine,  wielding  irresistible  me- 
chanical power,  and,  if  he  could,  he  is  quite  incapable  of  estimating  the 
degree  of  risk  involved  in  different  conditions  of  the  machine  ;  but  the 
master  ma}'  be  able,  and  generally  is  able,  to  estimate  both.  The  mas- 
ter again  is  a  volunteer,  the  workman  ordinarily  has  no  choice.  To 
hold  that  the  master  is  responsible  to  his  workman  for  no  absence  of 
care,  however  flagrant,  seems  to  me  in  the  highest  degree  both  unjust 
and  inconvenient. 

On  the  other  hand,  to  hold  that  the  master  warrants  the  safet}'  and 
proper  condition  of  the  machine,  is  equalh'  unjust  to  the  master,  for  no 
degree  of  care  can  insure  perfect  safety  ;  and  it  is  equally  inconvenient 
to  the  public,  for  who  would  emploj'  such  machines  if  he  were  an 
insurer? 

It  seems  to  me  that  the  true  rule  lies  midway  between  these  ex- 
tremes, and  I  therefore  agree  in  the  conclusion  arrived  at  b}'  the  Lord 
Chief  Justice.  The  master  is  neither,  on  the  one  hand,  at  libertj'  to 
neglect  all  care,  nor,  on  the  other,  is  he  to  insure  safety,  but  he  is  to 
use  due  and  reasonable  care.  The  degree  and  nature  of  that  care  are 
to  be  estimated  on  a  consideration  of  the  facts  of  each  particular  case. 
I  do  not  sa}-  that  the  degree  of  care  is,  in  all  cases,  the  same  as  the 
master  must  observe  towards  strangers. 

This  rule  seems  to  me  the  only  rule  consistent  with  justice  and  pub- 
lic convenience.  But  I  do  not  rest  it  on  those  considerations  alone.  It 
reposes  on  very  high  authority.  Lord  Cranworth,  in  delivering  the 
judgment  of  the  House  of  Lords  in  The  Bartonshill  Coal  Company  v. 
Reid,  3  Macqneen,  266,  states  that,  in  the  case  of  dangerous  machin- 
ery, the  master  is  bound  to  exercise  due  care.  It  is  true  that  this  was 
a  Scotch  case,  but  in  that  very  case  the  law  of  Scotland  and  the  law  of 
England  were  held  to  be  the  same  in  this  branch  of  the  law  of  master 
and  servant 


SKCT.  II.]  CLARKE  V.    HOLMES.  841 

It  ma}'  be  true  that  some  of  the  cases  cited  at  the  bar  are  not  quite 
consistent  witli  this  rule,  particularly  those  which  seem  to  make  the  per- 
sonal misconduct  or  personal  knowledge  of  the  master  a  necessary 
ingredient  in  his  responsibility.  But  we  are  a  court  of  error,  at  liberty 
to  decide  on  principle,  and  fortified  by  higher  authority.  Why  may  not 
the  master  be  guilty  of  negligence  by  his  manager,  or  agent,  whose 
employment  may  be  so  distinct  from  that  of  the  injured  servant,  that 
they  cannot  with  propriety  be  deemed  fellow-servants?  And  if  a  mas< 
ter's  personal  knowledge  of  defects  in  his  machinery  be  necessary  to 
his  liability,  the  more  a  master  neglects  his  business  and  abandons  it  to 
others  the  less  will  he  be  liable. 

It  is  said  that  the  verdict  exempting  the  servant  from  the  charge  of 
negligence  is  inconsistent  with  the  fact  that  he  knew  the  machinery  to 
be  unfenced.  But  knowledge  is  only  an  ingredient  in  negligence.  It 
may  be,  that  the  knowledge  of  the  servant  induced  hira  to  use  extraor- 
dinary care,  which  care  was  yet  insufficient  to  preserve  him  from  acci- 
dent. Besides,  a  servant  knowing  the  facts  may  be  utterly  ignorant  of 
the  risks. 

Lastly,  the  original  contract  of  the  servant  was  to  work  with  fenced 
machinery,  and  it  was  his  master,  and  not  he,  that  violated  the  con- 
dition ;  and  in  so  doing  exercised  a  species  of  compulsion  over  the 
servant. 

For  these  reasons  I  think  the  plaintiff  below  is  entitled  to  our 
judgment.  Judgment  for  the  plaiittlff  below.^ 

1  In  Gibson  v.  Erie  Railway  Co.,  63  N.  Y.  449,  452  (1875),  Allen,  J.,  for  the 
court,  commenting  on  the  rule  laid  down  by  Cockhurx,  C.  J.,  said  :  "  It  is  not  neces- 
sary to  hold  that  this  rule  should  be  applied  in  all  its  rigor  to  casualties  arising  from 
the  use  of  complex  and  dangerous  machinery,  the  condition  of  which,  or  the  risks 
involved  in  different  conditions  of  it,  an  ordinary  workman  might  be  incapable  of 
judging." 

In  Hough  V.  Railway  Co  ,  100  U.  S.  21.3,  224,  225  (1879),  Harlan,  J.,  for  the  court, 
said :  "  But  he  did  have  knowledge  of  the  defective  condition  of  the  cow-catcher  or 
pilot,  and  complained  thereof  to  both  the  master-mechanic  and  the  foreman  of  the 
round-house.  They  promised  that  it  should  be  promptly  remedied,  and  it  may  be 
that  he  continued  to  use  the  engine  in  the  belief  that  the  defect  would  be  removed. 
The  court  below  seem  to  attach  no  consequence  to  the  complaint  made  by  the  engineer, 
followed,  as  it  was,  by  explicit  assurances  that  the  defect  should  l)e  remedied.  Accord- 
ing to  the  instructions,  if  the  engineer  used  the  engine  with  knowledge  of  the  defect, 
the  jury  should  find  for  the  company,  although  he  may  have  been  justified  in  relying 
upon  those  assurances.  If  the  engineer,  after  discovering  or  recognizing  the  defective 
condition  of  the  cow-catcher  or  pilot,  had  continued  to  use  the  engine,  without  giving 
notice  thereof  to  the  proper  officers  of  the  company,  he  would  undoubtedly  have  been 
guilty  of  such  contributory  negligence  as  to  bar  a  recovery,  so  far  as  such  defect  was 
found  to  have  been  the  efficient  cause  of  the  death.  He  would  be  held,  in  that  case, 
to  have  himself  risked  the  dangers  which  might  result  from  the  use  of  the  engine  in 
such  defective  condition.  But  '  there  can  be  no  doubt  that,  where  a  master  has  ex- 
pressly promised  to  repair  a  defect,  the  servant  can  recover  for  an  injury  caused 
thereby,  within  such  a  period  of  time  after  the  promise  as  it  would  be  reasonable  to 
allow  for  its  performance,  and,  as  we  think,  for  an  injury  suffered  within  any  period 
which  would  not  preclude  all  reasonable  expectation  that  the  promise  miglit  be  kept.' 
Sheannan  &  Redf.  Negligence,  sect.  96.  .  .  .  '  If  the  servant/  says  Mr.  Cooley,  in  his 


842  WILSON   V.   MERRY.  [CHAP.  VI 


WILSON,   Appellant   v.    MERRY   and   CUNNINGHAM, 
Respondents. 

House  of  Lords.     1868. 
\_L.  R.  1  H.  L.  Sc.  326] 

After  a  trial  which  lasted  four  days  in  Januar}-,  18G7,  Mrs.  Wilson 
recovered  a  verdict  against  Messrs.  Merry  &  Cunningliam  for  the  loss 
of  her  son,  who  was  killed  vviien  engaged  as  a  miner  in  their  employ- 
ment ;  —  the  jiuy  assessing  the  damages  at  £100. 

The  counsel  of  Messrs.  Merry  &  Cunningham  took  exceptions  to  the 
judge's  charge.  One  of  these  was  allowed  b}'  the  Court  of  Session, 
whose  judgment  of  allowance,  setting  aside  the  verdict,  and  granting  a 
new  trial,  formed  the  subject  of  Mrs.  Wilson's  appeal  to  the  House. 

The  question,  in  a  word,  was  whether  her  son's  death  had  not  been 
caused  by  the  fault  or  negligence  of  a  fellow-workman,  so  as  to  free 
Messrs.  Merry  &  Cunningham  from  responsibility. 

Mr.  Quain,  Q.  C,  Mr.  StracJian  and  3Ir.  Junner,  appeared  for  the 
appellant. 

Sir  Moundell  Palmer,  Q.  C,  3Ir.  Young,  and  31r.  A.  B.  /Shand, 
for  the  respondents. 

The  Lord  Chancellor  (Cairns).  — My  Lords,  the  respondents  in 
this  case  are  coal  and  iron  masters,  owning  the  Haughhead  coal-pit,  near 
Hamilton,  in  the  county  of  Lanark.  This  pit  had,  prior  to  the  21st  of 
November,  1863,  been  sunk  to  the  depth  of  ninetj-five  fathoms  and 
contained  four  seams  of  coal.  The  upper  seam,  called  the  Ell  coal, 
had  been  worked  out,  and  the  respondents  determined  to  work  the  next 
underlying  seam,  called  the  Pyotshaw  coal.  In  order  to  open  this 
seam  from  the  side  of  the  pit  a  scaffold  was  erected  in  the  pit,  from 
and  by  means  of  which  to  drive  the  level  in  the  Pyotshaw  seam. 
This  scaffold  was  completed  on  Saturday,  the  21st  of  November,  1863. 
On  the  following  Monday,  the  23d  of  November,  1863,  Robert  Wilson 

work  on  Torts,  559,  'having  a  right  to  abandon  the  service  because  it  is  dangerous, 
refrains  from  doing  so  in  consequence  of  assurances  that  the  danger  shall  be  re- 
moved, the  duty  to  remove  the  danger  is  manifest  and  imperative,  and  the  master  is 
not  in  the  exercise  of  ordinary  care  unless  or  until  he  makes  his  assurances  good. 
Moreover,  the  assurances  remove  all  ground  for  the  argument  that  the  servant  by 
continuing  the  employment  engages  to  assume  the  risks.'  .  .  .  We  may  add,  that  it 
was  for  the  jury  to  say  whether  the  defect  in  the  cow-catcher  or  pilot  was  such  that 
none  but  a  reckless  engineer,  utterly  careless  of  his  safety,  would  have  used  the 
engine  without  it  being  removed.  If,  under  all  the  circumstances,  and  in  view  of  the 
promises  to  remedy  the  defect,  the  engineer  was  not  wanting  in  due  care  in  continuing 
to  use  the  engine,  then  the  company  will  not  be  excused  for  the  omission  to  supply 
proper  machinery,  upon  the  ground  of  contributory  negligence.  That  the  engineer 
knew  of  the  alleged  defect  was  not,  under  the  circumstances,  and  as  matter  of  law,  abso- 
lutely conclusive  of  want  of  due  care  on  his  part." 

See  the  discussion  in  Fitzgerald  v.  Connecticut  River  Paper  Co.,  155  Mass.  155 
(1891).  — Ed. 


SECT.  II.]  WILSON    V.   MERRY.  843 

and  Heniy  Wilson,  sons  of  the  appellant,  were  engaged  by  the  respon- 
dents to  assist  in  driving  this  level ;  and  on  the  24th  of  November 
the}'  went  to  work.  The  system  of  ventilation  in  the  pit,  before  the 
scaffold  was  placed  there,  was  of  the  usual  kind,  by  downcast  and  up- 
cast, and  it  is  not  suggested  that  before  the  platform  was  erected  the 
system  of  ventilation  was  defective  in  an^-  particular.  The  platform, 
however.  Interrupted  the  free  current  or  circulation  of  air  in  the  pit ; 
and  although  it  is  stated  that  apertures  were  left  in  the  platform  on  the 
upcast  side  for  the  return  of  the  air  from  the  shaft  below,  yet  an  accu- 
mulation of  fire-damp  appears  to  have  taken  place  underneath  the  plat- 
form ;  and  on  the  2oth  of  November,  1863,  while  Henry  Wilson  was 
searching  on  the  scaffold  with  a  light  for  a  wedge  which  was  missing, 
the  light  came  in  contact  with  the  fire-damp  coming  from  beneath  the 
scaffold,  and  an  explosion  took  place,  by  which  the  scaffold  was  blown 
up  and  Henrj'  Wilson  killed  on  the  spot. 

The  present  action  was  raised  by  the  appellant,  as  the  mother  of 
Henr}'  Wilson,  for  damages  in  consequence  of  his  death,  and  an  issue 
was  appointed  by  the  Lord  Ordinary-  for  the  trial  of  the  cause  in  the 
following  terras :  "  Whether,  on  or  about  the  25th  day  of  November, 
1863,  the  deceased  Henry  Wilson,  miner,  Haughhead,  the  son  of  the 
pursuer,  while  engaged  in  the  employment  of  the  defenders  as  a  miner 
in  said  pit,  was  killed  by  an  explosion  of  fire-damp  through  the  fault  of 
the  defenders,  to  the  loss,  injur}-,  and  damage  of  the  pursuer." 

It  was  not  suggested  that  the  respondents  themselves  took  an}'  part 
in  the  erection  of  the  platform,  nor  was  an}'  personal  fault  or  negligence 
of  any  kind  imputed  to  them.  The  general  manager  of  their  works  in 
Lanarkshire  was  Mr.  Jack.  The  manager  of  the  Haughhead  coal  pit 
underneath  Jack  was  John  Neish  ;  and  subordinate  to  Neisli  was  a 
man  named  Bryce,  who  attended  to  the  underground  operations.  One 
Neil  Robson,  formerly  a  mining  engineer,  was  a  partner  with  the  re- 
spondents, and  it  was  under  the  general  direction  of  the  respondents 
and  of  Robson  and  Jack  that  the  working  of  the  Pyotshaw  seam  was 
commenced.  The  charge  of  sinking  the  pit,  and  making  arrangements 
underground  for  working  it,  was  given  to  Neish.  It  was  proved  at  the 
trial,  and,  indeed,  not  controverted,  that  Jack  and  Neish  were  compe- 
tent persons  for  the  work  on  which  they  w^ere  engaged ;  selected  by 
the  respondents  with  due  care  ;  and  furnished  by  the  respondents  with 
all  necessary  materials  and  resources  for  working  in  the  best  manner. 

The  cause  was  tried  on  the  2d  of  January,  1867,  and  the  three  fol- 
lowing days,  before  Lord  Ormidale,  and  a  verdict  found  for  the 
appellant,  assessing  damages  at  £100.  Two  exceptions  were  taken  to 
Lord  Ormidale's  directions  to  the  jury ;  the  second  of  which  was 
allowed  by  the  Court  of  Session,  and  a  new  trial  granted.  It  is  on  this 
exception  alone  that  your  Lordsliips  are  now  called  to  express  an 
opinion,  the  appellant  having  appealed  against  the  interlocutor  of  the 
Court  of  Session  allowing  the  exception,  which  runs  thus  :  — 

"  Lord  Ormidale  charged  the  jury  ;   and,  after  explaiiting  that  ia 


844  WILSON   V.   MEKRY.  [CHAP.  VL 

law  the  defenders  were  not  answerable  for  the  consequences  of  an 
accident  which  could  not  have  been  foreseen,  and  by  reasonable  care 
and  caution  prevented,  or  for  the  consequences  of  an  accident  caused 
by  deceased's  own  fault,  or  the  fault  of  a  fellow- workman,  as  Bryce 
must  be  held  to  have  been  in  the  present  instance,  engaged  with  him 
in  the  same  common  employment ;  and  after  also  explaining  the 
nature  of  the  obligation  under  which  employers  la}'  of  providing  all 
apparatus  and  machiner}-  necessary  and  proper  for  the  safety  of  their 
workmen,  proceeded  to  bring  under  their  consideration  the  circum- 
stances relating  to  the  ventilation  arrangement  or  system  of  the  pit  in 
question,  distinguishing  betwixt  the  keeping  clear  and  in  good  work- 
ing order  the  ventilation  arrangement  or  system  when  completed,  and 
after  the  deceased  came  to  be  engaged  in  the  pit,  and  defect  or  fault 
in  said  arrangement  or  system  itself.  And  in  reference  to  the  latter 
Lord  Ormidale,  in  the  course  of  his  charge,  directed  the  jury,  that  '  if 
they  were  satisfied  on  the  evidence  that  the  arrangement  or  system  of 
ventilation  in  the  Haughhead  pit  at  the  time  of  the  accident  in  question 
had  been  designed  and  completed  by  Neish  before  the  deceased  Henry 
Wilson  was  engaged  to  work  in  the  pit,  and  that  the  defenders  had 
delegated  to  Neish  their  whole  power,  authority,  and  duty  in  regard  to 
that  matter,  and  also  in  regard  generally  to  all  the  underground  oper- 
ations, without  control  or  interference  on  their  part,  the  deceased 
Henry  Wilson  and  Neish  did  not  stand  in  the  relation  of  fellow-work- 
men engaged  in  the  same  common  employment,  and  the  defenders  were 
not  on  that  ground  relieved  from  liability  to  the  pursuer  for  the  conse- 
quences of  fault,  if  any  there  was,  on  the  part  of  Neish  in  designing 
and  completing  said  arrangement  or  system  of  ventilation.' " 

The  law  applicable  to  cases  of  this  kind  has  of  late  years  come  fre- 
quently under  consideration,  both  in  this  House  and  in  various  courts 
of  law  in  England  and  Scotland.  The  cases  up  to  the  year  1858  are 
all  reviewed  in  the  case  of  the  Bartonshill  Coal  Compan}-  v.  Reid,  de- 
cided by  your  Lordships.-^  .  .   . 

1  do  not  think  the  liability,  or  non-liability,  of  the  master  to  his 
workmen  can  depend  upon  the  question  whether  the  author  of  the 
accident  is  not,  or  is,  in  any  technical  sense,  the  fellow-workman,  or 
collahorateur^  of  the  sufferer.  In  the  majority  of  cases  in  which  acci- 
dents have  occurred  the  negligence  has,  no  doubt,  been  the  negligence 
of  a  fellow-workman  ;  but  the  case  of  the  fellow-workman  appears  to 
me  to  be  an  example  of  the  rule,  and  not  the  rule  itself  The  rule,  as 
I  think,  must  stand  upon  higher  and  broader  grounds.  As  is  said  bj' 
a  distinguished  jurist:  ^'- JExempJa  non  restringwit  reguhim,  sed 
loquuntur  de  casibus  crehrioribus  (Donellus  de  Jure  Civ.  L.  9,  c.  2, 
n).  The  master  is  not,  and  cannot  be,  liable  to  his  servant  unless 
there  be  negligence  on  the  part  of  the  master  in  that  in  which  he,  the 
master,   has   contracted   or  undertaken  with  his  servant  to  do.     The 

1  Here  were  read  quotations  from  Lord  Cranworth's  opinion  in  Bartonshill  Coal 
Company  v.  Reid,  3  Macq.  266,  282-284.  —  Ed. 


SECT.  II.]  WILSON    V.   MERRY.  845 

master  has  uot  contracted  or  undertaken  to  execute  in  person  the  work 
connected  with  his  business.  The  result  of  an  obligation  on  the  mas- 
ter personally  to  execute  the  work  connected  with  his  business,  in 
place  of  being  beneficial,  might  be  disastrous  to  his  servants,  for  the 
master  might  be  incompetent  personally  to  perform  the  work.  At  all 
events,  a  servant  maj'  choose  for  himself  between  serving  a  master 
who  does,  and  a  master  who  does  not,  attend  in  person  to  his  business. 
But  what  the  master  is,  in  mj^  opinion,  bound  to  his  servant  to  do,  in 
the  event  of  his  not  personally  superintending  and  directing  the  work, 
is  to  select  proper  and  competent  persons  to  do  so,  and  to  furnish  them 
with  adequate  materials  and  resources  for  the  work.  When  he  has 
done  this  he  has,  in  m\-  opinion,  done  all  that  he  is  bound  to  do.  And 
if  the  persons  so  selected  are  guilty  of  negligence,  this  is  not  the  negli- 
gence of  the  master ;  and  if  an  accident  occurs  to  a  workman  to-cla}' 
in  consequence  of  the  negligence  of  another  workman,  skilful  and  com- 
petent, who  was  formerly,  but  is  no  longer  in  the  employment  of  the 
master,  the  master  is,  in  mv  opinion,  not  liable,  although  the  two  work- 
men cannot  technicall}-  be  described  as  fellow-workmen.  As  was  said 
in  the  case  of  Tarrant  v.  Webb,  negligence  cannot  exist  if  the  master 
does  his  best  to  employ*  competent  persons  ;  he  cannot  warrant  the 
competency  of  his  servants. 

Applying  these  observations  to  the  direction  of  the  learned  judge  to 
the  jury  in  this  case,  I  think  the  first  error  in  that  direction  is,  that  it 
is  pregnant  with  the  suggestion  to  the  jury  that  if  they  found  the  scaf- 
fold to  have  been  finished  bj-  Neish  before  the  deceased  was  engaged 
to  work  in  the  pit,  a  liability  for  the  accident  was  thrown  upon  the  re- 
spondents, which  would  not  have  existed  if  the  deceased  had  been 
engaged  before  the  scaffold  was  finished.  This,  my  Lords,  was  calcu- 
lated, as  I  think,  to  mislead,  and  appears  to  have  misled  the  jury. 

But,  my  Lords,  I  think  there  is  another  objection  to  the  charge  of 
the  learned  judge.  He  asks  the  jury  to  consider  whether  the  respon- 
dents had  delegated  to  Neish  their  whole  power,  authority,  and  duty 
in  regard  to  the  arrangement  or  system  of  ventilation,  and  also  in  re- 
gard generally  to  all  the  underground  operations,  without  control  or 
interference  on  their  part. 

My  Lords,  I  think  there  is  nothing  in  the  evidence  which  would  war- 
rant a  question  being  left  to  the  jury  in  these  terms.  The  respondents 
had  delegated  no  power,  authority,  or  duty  to  Neish,  except  in  the 
sense  in  which  a  master  who  employs  a  skilled  workman  to  superintend 
a  portion  of  his  business  delegates  power,  authorit}-,  and  duty  to  the 
workman  for  that  purpose.  It  was  admitted  that  the  respondents  gave 
no  specific  directions  to  Neish  as  to  the  manner  or  form  in  which  the 
scaffold  was  to  be  arranged.  They  told  him  that  the  Pyotshaw  seam 
was  to  be  opened,  and  they  left  to  him  the  arrangements  underground 
for  opening  and  working  it.  And  the  learned  judge  ought  not,  as  I 
think,  to  have  suggested  to  the  jur}'  that  this  could  be  viewed  in  any 
other  light  than  as  the  ordinary  employment  by  the  respondents  of  a 


846  WILSON   V.   MERRY,  [CHAP.  VL 

sub-manager  or  foreman.  I  think  the  learned  judge  ought  to  have 
told  the  jury  that  if  the}'  were  of  opinion  that  the  respondents  exer- 
cised due  care  in  selecting  proper  and  competent  persons  for  the  work, 
and  furnished  them  with  suitable  means  and  resources  to  accomi)lish 
the  work,  the  respondents  were  not  liable  to  the  appellant  for  the  con- 
sequences of  the  accident.^  .  .  . 

Lord  Cranworth.  My  Lords,  the  direction  of  the  learned  judge 
complained  of  has  been  so  fully  stated  by  vay  noble  and  learned  friend 
that  I  need  not  repeat  it  at  length.  The  substance  of  it  was,  that  if 
the  system  of  ventilation  had  been  completed  by  Neish  before  "Wilson 
was  engaged  to  work  in  the  pit,  and  if  the  owners  had  delegated  to  him 
all  their  power  and  authorit}'  as  to  the  underground  operations,  then 
he  and  Wilson  were  not  fellow-workmen.  This  was  clearly  wrong. 
Workmen  do  not  cease  to  be  fellow-workmen  because  the}'  are  not  all 
equal  in  point  of  station  or  authority.  A  gang  of  laborers  employed  in 
making  an  excavation  and  their  captain,  whose  directions  the  laborers 
are  bound  to  follow,  are  all  fellow-laborers  under  a  common  master,  as 
has  been  more  than  once  decided  in  England,  and  on  this  subject  there 
is  no  difference  between  the  laws  of  England  and  Scotland.  Nor  does 
it  make  any  difference  that  the  scaffolding,  the  impei'fection  of  which 
is  assumed  to  have  caused  the  accident,  had  been  all  set  up  by  Neish 
before  Wilson  began  to  be  employed.  In  order  effectually  to  carry  on 
the  work,  it  was  necessary  that  a  scaffolding  should  be  fixed  under  the 
superintendence  of  an  underground  manager,  and  when  so  fixed  it  was 
necessary  that  workmen  should  be  employed  at  it  in  excavating  the 
mine  under  similar  superintendence.  That  Neish  was  a  person  compe 
tent  to  perform  the  duties  of  such  underground  manager  was  not  a 
matter  in  dispute.  He  caused  the  scaffold  to  be  prepared  and  fixed, 
and  when  that  had  been  done  Wilson  began  to  work  under  him  as 
manager.  They  thus  clearly  became  fellow- workmen,  and  the  circum- 
stance that  a  part  of  the  duties  of  Neish  had  been  completed  before 
Wilson  began  to  work  cannot  be  material.  If,  indeed,  the  owners  had 
failed  to  take  reasonable  care  in  causing  the  scaffold  to  be  erected,  the 
case  would  have  been  difl'erent,  but  of  this  there  is  no  evidence.  It 
certainly  was  not  incumbent  on  them  personally  to  fix  the  scaffold. 
They  discharged  their  duty  when  they  procured  the  services  of  a  com- 
petent underground  manager ;  and  whether  Wilson  began  to  work 
with,  or  under,  Neish  before  or  after  he  had  prepared  the  scaffold  was 
a  matter  of  no  importance.  From  the  time  when  he  began  to  work  he 
was  a  fellow-workman  with  him.  The  direction  given  by  the  learned 
judge  at  the  trial  was  certainly  wrong,  and  the  interlocutor  granting  a 
new  trial  was  therefore  right. 

It  is  not  necessary  that  we  should  say  what  direction  the  learned 
judge  ought  to  have  given,  but  I  have  no  difficulty  in  saying  that  he 
ought  to  have  charged  the  jury  to  the  effect  that  Neish  and  the  de- 

1  Here  followed  a  passage  pointing  out  that  no  question  had  been  presented,  under 
23  &  24  Vict.  c.  151,  "  An  Act  for  the  Regulation  and  Inspection  of  Mines." — Ed. 


SECT.  II.]  WILSON   V.   MERRY.  847 

ceased  were,  according  to  the  evidence,  fellow- workmen,  and  that  the 
defenders  were  not  liable  if  the}',  the  jury,  were  of  opinion  that  Neish 
was  a  properly  skilled  workman  to  act  as  underground  manager, 
even  if  there  were  defects  in  the  scaffolding  which  caused  the  acci- 
dent.^ .  .  . 

Lord  Chelmsford.^  Although  the  learned  judge,  in  the  course  of 
his  summing  up,  distinguished  "  between  keeping  clear  and  in  good 
working  order  the  ventilation  arrangement  or  system  when  completed, 
and  a  defect  or  fault  in  the  arrangement  or  sj'stem  itself,"  yet  he  does 
not  appear  to  have  left  it  to  the  jury  to  decide  whether  the  accident 
occurred  through  faulty  ventilation  or  through  casual  obstruction  in  the 
ventilation,  the  latter  of  which  appears  from  the  evidence  to  be  more 
likely  to  have  been  the  case.  But,  supposing  it  to  have  been  quite 
clear  that  the  ventilation  itself  was  defective,  3et,  if  it  occurred  in  the 
course  of  the  operations  in  the  pit,  it  ought  to  have  been  distinguished 
from  that  "  system  of  ventilation  and  putting  the  mine  into  a  safe  and 
proper  condition  for  working,"  which,  according  to  the  opinion  of  the 
Lord  Justice  Clerk,  in  Dixon  v.  Ranken,  14  Dunlop,  420,  "it  was  the 
duty  of  the  master  for  whose  benefit  the  work  is  being  carried  on  to 
provide."  In  the  course  of  working  the  Haughhead  pit  it  became  neces- 
sar}'  to  arrange  a  system  of  what,  for  distinction's  sake,  I  may  call 
local  ventilation.  This  must  be  considered  as  part  of  the  mining  oper- 
ations, and,  therefore,  even  if  the  accident  happened  in  consequence  of 
the  scaffold  in  the  P3'otshaw  seam  having,  under  Neish's  orders,  been 
constructed  so  as  to  obstruct  the  uecessar}'  ventilation,  it  would  have 
been  the  result  of  negligence  in  the  course  of  working  the  mine  ;  and  if 
Neish  and  the  deceased  were  fellow-workmen,  it  would  have  been  one 
of  the  risks  incident  to  the  employment  in  which  the  deceased  was 
engaged.^  .   .  . 

Lord  CoLONSAY.^  I  hold  it  to  be  quite  clear  that  the  liability  of  a 
master  for  injury  done  by  the  fault  or  negligence  of  his  servant  falls 
to  be  dealt  with  on  different  principles  where  the  sufferer  is  a  stranger, 
and  where  the  sufferer  is  a  fellow-servant  engaged  in  the  same  common 
employment.  The  distinction  was  fully  recognized  Iw  Lord  Cran- 
worth,  and  effect  was  given  to  it  by  this  House,  in  the  case  of  the 
Bartonshill  Company.  Whether  the  present  case  does  or  does  not  be- 
long to  the  latter  class,  it  certainly  does  not  belong  to  the  former  class. 
The  deceased  was  not  a  stranger;  he  was,  at  the  time  he  received  the 
injury,  a  workman  in  the  employment  of  the  defenders,  in  their  coal 
mine.  Neish  was  also  in  their  employment  there.  If  it  is  not  alleged 
that  there  was  any  personal  fault  or  neglect  on  the  part  of  the  master, 
on  what  principle  does  liability  attach  to  him  ?  Does  such  liability  flow 
from  the  nature  of  the  contract  of  service  under  which  the  deceased 

1  Here  followed  a  passage  declining  to  discuss  23  &  24  Vict.  151.  —  Ed. 

*  After  explaining  that  the  only  question  was  as  to  the  second  exception.  — Ed. 
8  Here  followed  a  discussion  of  the  charge  and  of  23  &  24  Vict.  c.  151.  —  Ed. 

*  After  .stating  the  facts  and  the  question.  — Ed. 


848  WILSON   V.   MERRY.  [CHAP,  VI. 

was  working?  I  think  that  there  are  duties  incumbent  on  masters 
with  reference  to  the  safety  of  laborers  in  mines  and  factories,  on  the 
fulfihnent  of  which  the  laborers  are  entitled  to  rely,  and  for  the  failure 
in  which  the  master  ma\-  be  responsible.  A  total  neglect  to  provide 
any  S3'stem  of  ventilation  for  the  mine  may  be  of  that  character.  Cul- 
pable negligence  in  supervision,  if  the  master  takes  the  supervision  on 
himself; — or,  where  he  devolves  it  on  others,  the  heedless  selection 
of  unskilful  or  incompetent  persons  for  the  duty,  —  or  the  failure  to 
provide  or  supply  the  means  of  providing  proper  machinery  or  mater- 
ials ;  —  may  furnish  grounds  of  liabilit}- ;  and  there  may  be  other 
duties,  var3'ing  according  to  the  nature  of  the  employment,  wherein,  if 
the  master  fails,  he  ma}-  be  responsible.  But,  on  the  other  hand,  there 
are  risks  incident  to  occupations  more  or  less  hazardous,  and  of  which 
the  laborer  who  engages  in  anj'  such  occupation  takes  his  chance.  It 
is  eminently  so  in  regard  to  mining  operations.  There  are  perils  of 
the  pit  as  well  as  of  the  other  deep,  and  one  of  those  perils  is  the  risk 
of  the  consequences  that  may,  even  in  the  best  regulated  pits,  result 
from  the  carelessness  or  recklessness,  or  other  fault,  of  one  or  more  of 
those  persons  composing  the  organized  bod}'  engaged  in  working  the 
mine.  The  master  does  not  impliedlj'  insure  the  workmen  against  such 
perils. 

Is  the  fault  attributed  to  Neish  one  of  this  last  character?  I  think 
it  must  be  so  regarded,  unless  there  was  something  in  the  relation 
of  Neish  to  the  defenders,  or  to  the  deceased,  which  deprives  it  of  that 
character.  It  is  not  alleged  that  the  general  s3-stera  of  ventilation  of 
the  pit,  as  it  had  existed  anterior  to  the  erection  of  the  scaffold,  was 
not  good,  or  that  Neish  was  not  a  fit  man  to  be  placed  in  the  position 
he  occupied.  In  neither  of  the  respects  was  there  any  fault  or  negli- 
gence on  the  part  of  the  defenders ;  nor  is  it  alleged  that  in  any  other 
respect  there  was  personal  fault  on  their  part.  But  it  is  said  that 
Neish  was  not  a  fellow- workman  of  the  deceased  — ■  that  he  was  in  some 
sense  and  to  some  effect  a  representative  of  the  defenders,  holding  del- 
egated powers  from  them,  and  that  they  are  therefore  liable. 

Now  I  agree  with  what  has  been  said  as  to  the  terms  "  fellow-work- 
man "  and  "  collahorateur."  The}-  are  not  expressions  well  suited  to 
indicate  the  relation  on  which  the  liability  or  non-liability  of  a  master 
depends,  especially  with  reference  to  the  great  systems  of  organization 
that  now  exist.  And  these  expressions,  if  taken  in  a  strict  or  limited 
sense,  are  calculated  to  mislead.  The  same  may  be  said  of  such  words 
as  "foreman"  or  "manager."  We  must  look  to  the  functions  the 
party  discharges,  and  his  position  in  the  organism  of  the  force  employed, 
and  of  which  he  forms  a  constituent  part.  Nor  is  it  of  any  consequence 
that  the  position  he  occupies  in  such  organism  implies  some  special 
authority,  or  duty,  or  charge,  for  that  is  of  the  essence  of  such  organi- 
zations, as,  for  instance,  in  this  case,  Br^'ce  is  admitted  to  have  been 
within  the  principle  of  a  fellow-workman,  although  he  was  foreman  and 
underground  manager,  and  had  the  immediate  charge  of  constructing  the 


SECT.  II.]  WILSON   V.    MERRY.  g49 

scaffold,  and  was  primarily  to  blame  for  its  defects,  if  any  ;  Neish  was 
one  step  higher,  and  may  have  been  in  fault  for  not  detecting  Bryce's 
error ;  but  3'et  Neish  was  subordinate  to  a  still  higlier  servant,  Jack. 
They  were  all  links  in  the  same  chain.  If  the  master  was  responsible 
for  injury  done  to  Wilson  through  the  fault  of  Neish,  on  tlie  ground 
that,  strictly  speaking,  they  were  not  fellow-laborers,  he  would,  on  the 
same  ground,  have  been  liable  to  Neish  for  injury  done  to  him  through 
the  fault  of  Wilson. 

Now  the  direction  of  the  learned  Judge  with  reference  to  the  circum- 
stances of  this  case  appears  to  me  to  have  been  objectionable  for  these 
reasons  :  First,  It  deals,  apparently,  with  tlie  alleged  defect  in  the 
scaffold  as  if  it  was  a  defect  in  the  general  arrangement  or  system  of 
ventilation  of  the  pit,  for  which  in  certain  views  the  defenders  might 
be  regarded  as  liable,  whereas  it  was  a  defect  in  the  construction  of  a 
temporary  structure  erected  by  order  of  Neish  for  certain  working 
operations,  whereb}'  the  free  action  of  a  good  system  of  ventilation  was 
temporarily  interfered  with,  which  raised  a  totally  different  question  for 
the  consideration  of  the  jury  in  reference  to  the  liability  of  the  defend- 
ers for  the  fault  of  Neish.  But  the  distinction  does  not  appear  to 
have  been  adverted  to.  Secondly,  It  suggests  to  the  jury  that  if  the 
faulty  scaflbld  was  completed  before  Wilson  entered  into  the  employ  of 
the  defenders,  a  liability  was  imposed  on  the  defenders  which  would 
not  otherwise  have  existed,  inasmuch  as  in  that  case  Wilson  and  Neish 
could  in  no  view  have  been  fellow-workmen  at  the  time  when  the  fault 
was  committed  by  Neish.  But  if  it  was  the  duty  of  Neish  to  provide 
for  the  passage  of  air  upwards  in  the  shaft,  that  duty  did  not  cease 
with  tlie  erection  of  the  scaffold,  but  continued  while  the  scaffold  re- 
mained, and  he  was  in  fault  so  long  as  that  duty  was  not  performed. 
It  was  not  merel}'  the  erection  of  the  scaffold  on  Saturday,  but  the 
maintenance  of  it  in  a  defective  state  until  Tuesday  morning,  that 
caused  the  injury,  if  it  was  really  caused  b}'  the  defective  construction 
of  the  scaffold  ;  and  consequently  there  was  no  room  for  the  suggested 
disconnection  of  Wilson  and  Neish  as  fellow-workmen.  Thirdly-,  The 
direction  points  the  attention  of  the  jury  to  the  question,  whether  Wil- 
son and  Neish  stood  in  the  relation  of  fellow-workmen  engaged  in  the 
same  common  employment,  as  the  test  of  non-liability,  without  sufficient 
explanation  of  what  constituted  that  relation  ;  and,  in  particular,  with- 
out explaining  that  diversity  of  duties  and  gradation  of  authority  are 
not  inconsistent  with  that  relation,  and  without  referring  to  the  effect 
which  might  be  produced  on  the  liability  of  the  master  by  a  careful 
selection  of  proper  persons  to  take  charge  of  different  departments  in 
the  working  of  the  mine.-'  .  .  . 

Interlocutor  affirmed^  and  appQcd  dismissed  loith  costs.^ 

^  Here  followed  a  passage  declining  to  express  an  opinion  as  to  23  &  24  Vict. 
c.  151.  — Ed. 

"^  For  dicta  suggesting  a  distinction  based  on  the  relative  rank  of  servants,  see  Bar- 
tonshill  Coal  Co.  v.  Reid,  3  Macq.  266,  295  (1858),  jier  Lord  Ckanwokth  ;  Clarke  v. 

54 


850  FORD   V.   FITCHBUKG    KAILROAD   CO.  [CHAP.  VL 


FORD    V.   FITCHBURG    RAILROAD    COMPANY. 
Supreme  Judicial  Court  of  Massachusetts,  1872. 

[no  Mass.  240.] 

Tort  to  recover  for  personal  injuries  occasioned  M'  the  explosion  of 
the  boiler  of  a  locomotive  engine  belonging  to  the  defendants.  Trial  in 
the  Superior  Court,  before  Scuddek,  J.^  .  .  . 

The  judge  instructed  the  jury  as  follows:  "A  person  entering  into 
the  service  of  another  takes  upon  himself,  in  consideration  of  the  com- 
pensation to  be  paid  him,  the  ordinaiy  risks  of  the  emploj'ment,  including 
the  negligence  of  his  fellow-laborers."  "The  general  rule  is,  that  he 
who  engages  in  the  employment  of  another,  for  the  performance  of 
specific  duties  and  services,  for  compensation,  takes  upon  himself  the 
natural  and  ordinary  risks  and  perils  incident  to  the  performance  of 
such  services,  embracing  perils  arising  from  the  negligence  of  those  in 
the  same  employ  as  incident  to  the  service."  "  When  a  master  uses  due 
diligence  in  the  selection  of  competent  and  trustworthy  servants,  and 
furnishes  them  with  suitable  means  to  perform  the  service  in  which  he 
employs  them,  he  is  not  answerable  to  one  of  them  for  an  injury  received 
by  him  in  consequence  of  the  carelessness  of  another,  while  both  are 
engaged  in  the  same  service."  "  A  corporation  is  required  to  use  due 
care  in  supplying  and  maintaining  suitable  instrumentalities  for  the 
performance  of  the  work  or  dut}'  which  it  requires  of  its  servants,  and 
is  liable  for  damages  occasioned  by  neglect  or  omission  to  fulfil  this 
obligation,  whether  it  arises  from  its  own  want  of  care,  or  that  of  its 
agents  intrusted  with  the  dut}-.  But  the  law  does  not  hold  it  responsible 
for  the  negligence  of  its  servants,  if  of  competent  skill  and  experience, 
in  using  or  managing  the  means  and  appliances  placed  in  their  hands  in 
the  course  of  their  employment,  if  they  are  neither  defective  nor  insufl3- 
cient."  "The  rules  of  law  are  well  settled,  that  a  servant,  by  entering 
into  his  master's  service,  assumes  all  the  risks  of  that  service,  which  the 
master,  exercising  due  care,  cannot  control,  including  those  arising 
from  the  negligence  of  his  fellow-servants  ;  but  that  the  master  is  bound 
to  use  ordinar}'  care  in  providing  suitable  structures  and  engines  and 
proper  servants,  to  carr}'  on  his  business,  and  is  liable  to  any  of  their 
fellow-servants  for  his  negligence  in  this  respect.  This  care  he  can  and 
must  exercise,  both  in  procuring  and  in  keeping  and  maintaining  such 
servants,  structures,  and  engines.     If  he  knows,  or  in  the  exercise  of 

Holmes,  ante,  pp.  836,  841,  per  Byles,  J.;  Gallagher  v.  Piper,  16  C.  B.  n.  s.  669,  697 
(1864),  per  Byles,  J.,  dissenting;  and  Murphy  v.  Smith,  1'9  C.  B.  n.  s.  361,  366-368 
(1865),  per  Erle,  C  J.,  and  Keating,  J. 

See  Devlin  v.  Smith,  89  N.  Y.  470  (1882) ;  Butler  v.  Locke,  126  N.  Y.  105  (1891).— 
Ed. 

1  The'  report  has  been  abbreviated  by  omitting  the  evidence,  the  instructions 
requested  by  the  defendant  corporation,  and  so  much  of  the  opinion  as  dealt  with 
those  instructions.  —  Ed. 


SECT.  II,]  FORD    V.    FITCIIBURG    RAILROAD   CO.  851 

due  care  might  have  known,  that  his  servants  are  incompetent,  or  his 
structures  or  engines  insufficient,  either  at  the  time  of  procuring  them 
or  at  any  subsequent  time,  he  fails  in  his  duty.  For  the  management  of 
his  machinery  and  the  conduct  of  his  servants,  he  is  not  responsible  to 
their  fellow-servants  ;  but  he  cannot  avail  himself  of  this  exemption  from 
responsibilit}',  when  his  own  negligence  in  not  having  suitable  instru- 
ments, whether  persons  or  things,  to  do  his  work,  causes  injury  to  those 
in  his  employ.  lie  cannot  divest  himself  of  his  dut}',  to  have  suitable 
instruments  of  any  kind,  b}'  delegating  to  an  agent  their  employment  or 
selection,  their  superintendence  or  repair.  A  corporation  must,  and  a 
master  who  has  an  extensive  business  often  does,  perform  this  dut}' 
through  officers  or  superintendents  ;  but  the  duty  is  his  and  not  merely 
theirs,  and  for  negligence  of  his  duty  in  this  respect  he  is  responsil)le. 
To  hold  otherwise  would  be  to  exempt  a  master,  who  selected  all  his 
machinery  and  servants  through  agents  or  superintendents,  from  all 
liability  whatever  to  their  fellow-servants,  although  he  had  been  grossly 
negligent  in  the  selection  or  keeping  of  proper  persons  and  means  for 
conducting  his  business." 

"The  obligation  of  a  corporation,  so  far  as  respects  those  in  its 
employment,  does  not  extend  beyond  the  use  of  ordinary  care  and  dili- 
gence. B}-  ordinar}'  care  and  diligence  is  meant  such  as  men  of  ordinary 
sense,  prudence,  and  capacit}',  under  like  circumstances,  take  in  the 
conduct  and  management  of  their  own  affairs.  This  varies  according 
to  circumstances  as  the  risk  is  greater  or  less,  and  must  be  measured 
by  the  character  and  risks  and  exposures  of  the  business." 

Applying  the  law  as  stated  to  the  present  case,  the  judge  instructed 
the  jur}-  that  "  the  exercise  of  ordinary  diligence  and  care  was  required 
on  the  part  of  the  defendants,  and  their  proper  officers  and  agents,  in 
providing  a  suitable  engine  to  lie  used  by  the  plaintiff  upon  their  road, 
and  in  keeping  the  engine  in  proper  condition  for  such  use  ;  that  the 
plaintiff  was  also  required  to  exercise  ordinary-  diligence  and  care  in  the 
use  of  the  engine  and  in  avoiding  danger  therefrom  ;  that  if  neither 
party  was  in  fault  the  plaintiff  could  not  recover;  that  if  the  injury 
complained  of  was  occasioned  by  the  fault  or  negligence  of  both  parties, 
the  plaintiff  was  not  entitled  to  recover ;  that  if  the  defendants,  acting 
by  their  proper  officers  and  servants,  exercised  ordinary  diligence  and 
care  in  providing  a  suitable  engine  and  in  keeping  the  same  in  proper 
condition  and  repair,  for  the  use  to  which  it  was  appropriated,  the}- 
were  not  responsible  for  the  injury  complained  of;  but  that  if  they  failed 
so  to  do,  and  the  injury  complained  of  resulted  from  their  neglect  in  this 
respect,  then  the  defendants  were  responsible  therefor,  unless  it  ap- 
peared that  the  plaintiff  himself  was  also  wanting  in  the  exercise  of 
ordinary  vigilance  and  care,  either  in  the  management  of  the  engine  or 
in  improperly  exposing  himself  to  danger  therefrom,  thereby  rendering 
himself  guiltv  of  contributory  negligence,  in  which  latter  case  he  was 
not  entitled  to  recover ;  that  the  burden  was  upon  the  plaintiff  to  show, 
not  only  that  the  defendants  were  guilty  of  negligence  in  not  exercising 


852  FORD  V.    FITCHBURG  RAILROAD  CO.       [CHAP.  VL 

ordinal'}'  diligence  and  care  in  providing  a  suitable  engine  and  keeping 
it  in  proper  condition,  thereb}'  causing  the  injury  complained  of,  but 
tliat  he  was  himself  free  from  any  negligence  contributing  to  the  injury  ; 
that  Rule  28  did  not,  as  a  matter  of  law,  release  the  defendants  from 
their  legal  responsibility  in  this  case,  if  any  such  existed,  for  the  internal 
and  invisible  defects  in  the  boiler,  by  which  it  was  claimed  the  explosion 
was  occasioned  ;  and  that  the  violation  of  Rule  42,  ^  far  as  it  stated  it 
to  be  the  duty  of  the  plaintiff  to  be  sure  that  the  engine  was  in  good 
working  order  before  it  was  taken  from  the  engine-house,  did  not,  as 
matter  of  law,  necessaril}'  preclude  him  from  recovering  in  this  case,  if 
otherwise  entitled,  unless  the  accident  or  injury  complained  of  was 
occasioned  in  whole  or  in  part  by  such  violation." 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendants 
alleged  exceptions. 

If.  B.  /Staples  and  I^.  P.  Goidding,  for  the  defendants. 

G.  A.  Torrey,  for  the  plaintiff. 

Colt,  J.  This  action  is  founded  on  the  alleged  negligence  of  the 
defendant  corporation  in  failing  to  provide  and  keep  in  repair  a  safe 
and  suitable  engine  to  be  run  by  the  plaintiff  in  hisemploj-ment  as  loco- 
motive engineer  upon  its  road.  The  law  applicable  to  cases  of  this 
description,  and  which  deiines  the  rights  and  duties  that  belong  to  the 
relation  of  master  and  servant,  is  plainly  stated  in  the  recent  decisions 
of  this  court.  The  principles  are  discussed  and  the  cases  sufflcientl}' 
reviewed  in  Coombs  v.  New  Bedford  Cordage  Co.  102  Mass.  572,  and 
in  Oilman  v.  Eastern  Railroad  Co.  10  Allen,  233,  and  13  Allen,  433, 
and  Huddleston  v.  Lowell  Machine  Shop,  lOG  Mass.  282. 

Upon  a  careful  consideration  of  the  evidence  and  the  instructions 
given,  we  find  no  error  in  law  for  which  this  verdict  should  be  set  aside. 
The  legal  principles  which  govern  the  case  were  aecuratelj'  stated.  They 
were  well  adapted  to  the  whole  evidence  in  its  different  aspects,  and 
they  were  all  that  the  case  required.  The  jury,  who  are  presumed  to 
have  been  controlled  b}-  these  instructions  and  the  evidence  before 
them,  must  have  found,  in  arriving  at  their  verdict,  that  the  defendant 
corporation,  b}'  its  agents,  intrusted  with  that  duty,  did  not  exercise 
ordinary'  care  and  diligence,  in  suppl3'ing  and  maintaining  an  engine, 
safe  to  be  used  for  motive  power  upon  their  road,  in  the  performance  of 
that  part  of  the  plaintiff's  work  in  which  he  was  engaged  at  the  time ; 
that  this  neglect  was  the  cause  of  the  injury ;  and  that  the  plaintiff  was 
himself  in  the  exercise  of  ordinary'  care  and  diligence,  in  the  use  of  the 
engine,  and  in  avoiding  danger  therefrom.  They  must  have  further 
found,  that  the  plaintiff  did  not  know,  or  have  reasonable  cause  to 
believe,  that  the  engine  was  unsafe  at  the  time  of  the  explosion,  and 
also  that  the  injury'  was  not,  in  whole  or  in  part,  caused  bj-  an}-  vio- 
lation of  the  terms  of  his  contract  of  employment,-  as  expressed  in  the 
rules  of  the  road  assented  to  by  him. 

This  establishes  the  defendant's  liability.  It  is  enough  that  there 
was  evidence  in  support  of  these  several  findings,  suflScieut  to  justify 


SECT.  II.]      FLIKE   V.    BOSTON    AND   ALBANY   RAILROAD   CO.  853 

each.  It  is  not  a  question  of  tlie  weight  of  evidence,  or  whether  the 
verdict  ought  not  to  be  set  aside  on  a  motion  for  a  new  trial.  When 
the  question  is  raised  by  exceptions,  the  only  inquiry  is,  whether  there 
is  any  evidence  proper  to  submit  to  the  jury  as  having  a  tendency  to 
support  the  legal  propositions  which  charge  the  defendant  with  liability. 
Forsyth  v.  Hooper,  11  Allen,  419. 

The  rule  of  law  which  exempts  the  master  from  responsibility  to  the 
servant  for  injuries  received  from  the  ordinary  risks  of  his  employment, 
including  the  negligence  of  his  fellow-servants,  does  not  excuse  the 
employer  from  the  exercise  of  ordinary  care  in  supplying  and  maintain- 
ing suitable  instrumentalities  for  the  performance  of  the  work  required. 
One  who  enters  the  employment  of  another  has  a  right  to  count  on  this 
duty,  and  is  not  required  to  assume  the  risks  of  the  master's  negligence 
in  this  respect.  The  fact  that  it  is  a  duty  which  must  always  be  dis- 
charged, when  the  emplo3er  is  a  corporation,  by  officers  and  agents, 
does  not  relieve  the  corporation  from  the  obligation.  The  agents  who 
are  charged  with  the  duty  of  supplying  safe  machinery  are  not,  in  the 
true  sense  of  the  rule  relied  on,  to  be  regarded  as  fellow-servants  of 
those  who  are  engaged  in  operating  it.  They  are  charged  with  the 
master's  duty  to  his  servant.  They  are  employed  in  distinct  and  inde- 
pendent departments  of  service,  and  there  is  no  difficulty  in  distinguish- 
ing them,  even  when  the  same  person  renders  service  by  turns  in  each, 
as  the  convenience  of  the  employer  may  require.  In  one  the  master 
cannot  escape  the  consequence  of  the  agent's  negligence  ;  if  the  servant 
is  injured  in  the  other  he  may.  .  .  .  Exce'ptions  overruled. 


FUKE,  Administrator,  Respondent,  v.  THE  BOSTON  AND 
ALBANY   RAILROAD    CO.,    Appellant. 

Court  of  Appeals  of  New  York.     1873. 

[53  N.  Y.  549.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  In 
the  third  judicial  department,  denying  a  motion  for  a  new  trial  and 
ordering  judgment  for  plaintiff  on  a  verdict. 

This  action  was  brought  to  recover  damages  for  the  death  of  Henry 
Sipperly,  plaintifl["'s  intestate,  alleged  to  have  been  caused  by  defen- 
dant's negligence.  Sipperly  was  killed  on  the  3d  of  February,  1870. 
The  circumstances  of  his  death  are  sufficiently  stated  in  the  opinion. 

A  verdict  was  rendered  in  favor  of  plaintiff. 

Exceptions  were  ordered  to  be  heard  at  first  instance  at  General  Term. 

Geo.  W.  Miller  for  the  appellant. 

Matthew  Hale  for  the  respondent. 

Church,  C.  J.  The  plaintiffs  intestate  was  a  fireman  upon  a  freight 
train  upon  defendant's  road,  which  left  Albany  at  an  early  hour  on  a 
cold  day.  Some  miles  east  of  Albany  eleven  cars  of  another  freight 
train,  a  short  distance  in  advance,  became  accidentally  detached  and 


|54 


FLIKE    V.    BOSTON    AND    ALBANY   KAILROAD   CO.       [cHAP.  YL 


ran  back  and  collided  vvilh  the  train  on  which  the  deceased  was  em- 
ployed, b}-  means  of  which  he  was  killed.  The  evidence  tended  to 
show  that  the  forward  train  was  deficient  in  brakemen  ;  that  but  two 
were  aboard,  when  there  should  have  been  three,  which  was  the  usual 
number ;  and  that  if  a  third  brakeman  had  been  there  he  would  have 
been  stationed  upon  the  eleven  runaway  cars,  and  with  the  brakeman 
on  them  could  have  controlled  their  impetus  and  prevented  the  acci- 
dent. The  company  had  at  Albany  an  agent,  called  a  head  conductor, 
whose  business  it  was  to  make  up  the  morning  trains,  hire  and  station 
the  brakemen,  and  generally  to  prepare  and  despatch  these  trains. 

The  general  rule  that  the  employer  is  not  liable  to  one  servant  or 
laborer  for  an  injury  resulting  from  the  carelessness  or  negligence  of 
another  servant  or  co-laborer,  has  been  recently  so  fully  considered 
by  this  court  in  the  two  cases  of  Laning  v.  N.  Y.  C.  R.  R.  Co.  (49 
N.  Y.  521)  and  Brkkner  v.  The  Sa7ne  (49  id.  672),  that  discussion  is 
unnecessary  except  as  far  as  may  be  pertinent  to  determine  its 
application  to  the  facts  of  this  case.  This  doctrine  was  first 
promulgated  in  England  in  1837  '(3  M.  «fe  W.  1),  in  South  Carolina  in 
1841  (1  McMullan,  385),  and  in  Massachusetts  in  1842  (4  Met.  49), 
and  has  been  adopted  in  this  and  most  of  the  other  States  in  the  Union. 
There  has  been  a  diversity-  of  reasons  given  for  its  adoption,  which 
have  led  to  some  confusion  in  its  application.  The  reasons  for  the 
rule  are  well  stated  b}'  Pratt,  J.,  in  the  first  case  in  which  it  was  applied 
in  this  State  (6  Barb.  231),  and  were  in  substance  that  the  rule 
resjiondeat  svperior  does  not  itself  spring  directh'  from  principles  of 
natural  justice  and  equity,  but  has  been  established  upon  principles 
of  expediency  and  public  polic}'  for  the  protection  of  the  communit}' ; 
and  that,  in  view  of  the  unjust  consequences  which  ma}'  ensue  from  its 
application  for  injuries  by  co-servants,  the  same  principles  of  public 
policy  demand  its  limitation,  and  that  while  the  general  rule  was  de- 
manded for  the  protection  of  the  community,  the  exception  is  demanded 
for  the  protection  of  the  employer,  especiall}-  in  view  of  the  manner  in 
which  the  principal  business  of  the  country  is  now  transacted.  This 
view  evinces  the  flexibilitv  of  the  principles  of  the  common  law,  which 
are  capable  of  adaptation  to  new  or  changed  circumstances,  and  enables 
courts  to  adjust  the  application  of  the  principle  not  in  obedience  to  a 
supposed  arbitrary  rule,  but  with  such  limitations  and  qualifications  as 
best  accord  with  reason  and  justice.  In  applying  the  rule  we  should  be 
cautious  not  to  violate  the  ver}'  principles  upon  which  it  is  founded. 
"While  shielding  the  employer  from  unjust  and  burdensome  liabilities, 
we  should  not  withhold  all  redress  from  the  emploj'ed  for  remissness 
and  carelessness  in  respect  to  duties  which  fairlj'  devolve  upon  the  for- 
mer as  the  principal,  and  over  which  the  latter  have  no  control.^  .  .  . 

The  master  is  liable  if  his  own  negligence  or  want  of  care  produces 
the  injury,  and  this  may  be  manifested  l)y  employing  unfit  servants  or 
agents,  or  furnishing  improper  or  unsafe  machinerv,  implements,  facili- 

'  Here  was  quoted  the  passage  from  Hutchinson  v.  York,  Newcastle,  &  Berwick  R> 
Co.,  ante,  p.  828,  n.  (1).  —Ed. 


SECT.  II.]       FLIKE    V.    BOSTON    AND    ALBANY    RAILROAD   CO.  855 

ties,  or  materials  for  the  use  of  the  servant  (25  N.  Y.  562  ;  39  id 
468).  It  was  at  first  doubted  by  this  court  whether  the  exemption 
should  not  be  limited  to  injuries  by  servants  whose  emplo3'ment  was 
the  same  (1  Seld.  492,  per  Gardiner,  J.)  ;  but  it  has  since  been 
repeatedlj"  held  that  injuries  by  servants  or  agents,  engaged  in  the  same 
general  business  or  enterprise,  are  within  the  exemption  (Id.).  Hence 
the  difficulty  of  applying  the  rule  in  actions  against  corporations  whose 
whole  business  can  only  be  transacted  b}"  agents  who  are  in  some  sense 
co-servants.  In  39  N.  Y.,  supra ^  the  court  decided  that  a  corporation 
was  lial)le  if  negligence  causing  an  injury-  to  a  subordinate  servant 
could  be  imputed  to  the  directors,  but  did  not  establish  any  definite 
rule  on  the  subject.  Tlie  true  rule,  I  apprehend,  is  to  hold  the  cor- 
poration liable  for  negligence  or  want  of  proper  care  in  respect  to  such 
acts  and  duties  as  it  is  required  to  perform  and  discharge  as  master  or 
principal,  without  regard  to  the  rank  or  title  of  the  agent  intrusted 
with  their  performance.  As  to  such  acts,  the  agent  occupies  the  place 
of  the  corporation,  and  the  latter  should  be  deemed  present,  and  con- 
sequently liable  for  the  manner  in  which  the^'  are  performed.  If  an 
agent  employs  unfit  servants,  his  fault  is  that  of  the  corporation,  be- 
cause it  occurred  in  the  performance  of  the  principal's  dut}-,  although 
onU'  an  agent  himself.  So  in  providing  machinery'  or  materials,  and  in 
the  general  arrangement  and  management  of  the  business,  he  is  in  the 
discharge  of  the  duty  pertaining  to  the  principal. 

In  the  case  before  us  it  was  clearl}-  the  dut}-  of  the  corporation,  in 
making  up  and  despatching  the  advance  train,  to  suppl}'  it  with  suitable 
machiner}'  and  sufficient  help  for  the  business  and  journe}'  which  it  was 
about  to  undertake  ;  and  if  there  was  any  want  of  care  in  these  respects, 
which  caused  the  injur}-,  it  is  liable.  Rockefeller  had  the  general 
charge  of  this  business,  and,  within  the  principle  decided  in  the  Laning 
case,  represented  the  corporation  itself 

It  is  claimed,  by  the  counsel  for  the  appellant,  that  the  company*  are 
not  liable,  because  the  agent  had,  in  fact,  emplo3-ed  a  third  brakeman 
to  go  upon  this  train,  who,  b}-  reason  of  oversleeping,  failed  to  get 
aboard  in  time,  and  hence,  that  the  injury  must  be  attributed  to  his 
negligence,  or,  if  attributable  to  the  negligence  of  the  general  agent  in 
not  supplying  his  place  with  another  man,  such  negligence  must  be  re- 
garded as  committed  while  acting  in  the  capacity  of  a  mere  co-servant, 
within  the  doctrine  of  irresponsibility.  Neither  of  these  positions  is 
tenable.  The  hiring  of  a  third  brakeman  was  only  one  of  the  steps 
proper  to  be  taken  to  discharge  the  principal's  dut}-,  which  was  to 
supply  with  sufficient  help  and  machinery,  and  properl}'  despatch  the 
train  in  question,  and  this  duty  remained  to  be  performed,  although 
the  hired  brakeman  failed  to  wake  up  in  time,  or  was  sick,  or  failed  to 
appear  for  any  other  reason.  It  was  negligent  for  the  company  to 
start  the  train  without  sufficient  help.  The  acts  of  Rockefeller  cannot 
be  divided  up,  and  a  part  of  them  regarded  as  those  of  the  company, 
and  the  other  part  as  those  of  a  co-servant  merely,  for  the  obvious  rea- 
son that  all  his  acts  constituted  but  a  single  dut}'.     His  acts  are  iudivi- 


856  FLIKE   V.    BOSTON   AND   ALBANY   RAILKOAD   CO.       [CHAP.  VL 

sible,  and  the  attempt  to  create  a  distinction  in  their  character  would 
involve  a  refinement  in  favor  of  corporate  imnuinit}'  not  warranted  by 
reason  or  authority.  As  well  might  the  company  be  relieved  if  the 
train  was  started  without  an  engineer,  or  without  brakes,  or  with  a 
defective  engine.  The  same  duty  rested  upon  the  company,  thougli 
every  man  employed  had  died  or  run  away  during  the  night,  and  if 
negligent  in  discharging  it,  either  by  acts  of  commission  or  omission, 
whether  in  employing  improper  help,  or  not  enough  of  it,  or  in  not  re- 
quiring their  presence  upon  the  train,  it  is,  upon  every  just  principle, 
responsible  for  the  consequences.  Nor  is  the  company  relieved, 
although  negligence  may  be  imputed  to  the  defaulting  brakeman.  The 
only  effect  of  that  circumstance  would  be  to  make  the  negligence  con- 
tributory with  the  brakeman,  but  would  not  affect  the  liability  of  the 
company.  It  is  unnecessary,  therefore,  to  inquire  whether  the  sleeping 
brakeman  was  so  engaged  in  the  common  service  as  that  the  defendants 
could  be  exempted  from  liability  if  the  injury  was  solely  attributable 
to  bis  neglect. 

Assuming  that  the  facts  are,  as  the  jury  must  have  found,  the  liability 
of  the  company  is  clear.  These  heav^'  freight  trains  were  despatched 
only  five  minutes  apart,  and  traversed  a  very  heavy  grade,  and  were 
liable,  especially  in  cold  weather,  to  precisel}-  such  accidents  as  did 
occur,  in  which  event  collisions,  with  fatal  results,  were  almost  certain 
to  ensue.  The  principal  protection  in  such  cases  is  the  prompt  and 
efficient  application  of  the  brakes,  and  the  utmost  care  should  be  exer- 
cised in  providing  a  sufficient  number  of  reliable  men  to  perform  this 
duty.  If  we  were  called  upon  to  spell  out  a  contract  between  the  par- 
ties, it  would  be  implied  that  the  company  agreed  to  use  proper  care 
not  to  expose  the  deceased  to  risks  of  this  character.  He  was  engaged 
upon  another  train  in  the  discharge  of  his  dut}-,  and  was  not  only  in  no 
way  connected  with  the  broken  train,  but  he  could  neither  know  of  nor 
provide  against  the  defect. 

No  authority  has  been  cited  which  would  justify  us  in  relieving  the 
defendant  from  this  liability,  nor  have  I  been  al)le  to  find  any.  In  3 
Cush.  270,  the  Supreme  Court  of  Massachusetts  intimate,  although  it 
was  unnecessar}'  to  decide,  that  a  railroad  company  is  liable  for  an  in- 
jur}' to  an  employe,  caused  by  a  deficiency  of  help  upon  another  train. 

Mr.  Redfield,  in  a  note  in  a  recent  edition  of  his  work  on  Railways, 
expresses  the  opinion  that  corporations  should  be  regarded  as  con- 
structively present  in  all  acts  performed  b}'  their  general  agents,  within 
the  range  of  tiieir  employment ;  and  the  tendenc}'  of  judicial  opinion, 
while  it  adheres  to  the  general  rule  of  irresponsibility,  is  against 
extending  it. 

The  judgment  must  be  affirmed. 

Peckham,  Andrews,  and  Rapallo,  JJ.,  concur. 

Allen,  Grover,  and  Folger,  JJ.,  dissent. 

Judgment  affirmed.^ 

*  Compare  Michigan  Central  Raihroad  Co.  v.  Dolan,  32  Mich.  510  (1875).  —Ed. 


SECT.  II.]  CORCORAN  V.   HOLBROOK.  857 


CORCORAN,   Appellant,  v.  HOLBROOK  et  al.,  Respondents. 

Court  of  Appeals  of  New  York.     1875. 

[59  .V.  y.  517.] 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court, 
in  the  third  judicial  department,  reversing  a  judgment  in  favor  of 
plaintiff,  entered  upon  the  report  of  a  referee,  and  granting  a  new  trial. 

This  action  was  brought  to  recover  damages,  for  injuries  sustained 
b}'  plaintiff  in  consequence  of  the  fall  of  an  elevator  in  defendants'  mill, 
in  which  plaintiff  was  an  emploj'ee. 

The  referee  found  the  following  fiicts  :  That  defendants  were  copart- 
ners in  the  business  of  operating  a  cotton  mill,  located  in  the  cit}-  of 
Tro}- ;  they  were  also  doing  business  as  merchants  in  New  York  city, 
where  they  resided ;  they  gave  no  personal  attention  to  the  conducting 
of  the  mill,  but  it  was  managed  by  a  general  agent,  having  general 
charge  thereof,  its  machinery  and  operations,  with  power  to  purchase 
supplies,  etc.  In  the  mill  was  an  elevator,  elevated  and  lowered  by  a 
chain  passing  over  a  drum  in  the  garret.  The  elevator  was  designed 
for  elevating  goods,  but  for  many  years  the  superintendents,  bosses, 
and  employees  had  been  accustomed  to  ride  thereon,  from  one  floor  to 
another,  while  engaged  in  their  work,  to  the  knowledge  of  the  superioi-s 
and  bosses.  Plaintiff  was  an  emplo\-ee  in  the  mill,  and  had  been  accus- 
tomed so  to  ride.  Some  of  the  links  of  the  chain  had  worn  thin,  and 
thereby  rendered  the  elevator  dangerous  and  unsafe.  This  had  been 
known  b}'  the  agent  for  three  weeks  prior  to  the  accident  in  question, 
and  he  was  notified  that,  if  the  chain  was  not  repaired,  some  of  the 
employees  would  get  hurt.  Plaintiff  had  no  knowledge  of  the  defect. 
On  the  17th  of  February,  1870,  and  while  at  work  in  the  mill,  plaintiff 
was  sent  to  a  room  above  that  where  she  worked.  She  took  the  ele- 
vator, and  while  ascending  the  chain  broke,  the  elevator  fell,  and  she 
was  injured. 

As  conclusions  of  law,  the  referee  found  that  notice  to  the  general 
agent  was  notice  to  the  defendants,  who  were  chargeable  with  his 
negligence  ;  that  plaintiff  was  not  guilty  of  any  contributory  negligence, 
and  that  defendants  were  liable  for  the  damages  sustained  by  plaintiff. 

R.  A.  Pariaentei\  for  the  appellant. 

Trning  Broione,  for  the  respondents. 

Rapallo,  J.  The  reversal  of  the  judgment  entered  upon  the  report 
of  the  referee  was  upon  questions  of  law  only.  The  facts  found  by  the 
referee  must  therefore  be  taken  as  established.  From  these  findings  it 
appears  that  for  upward  of  thirty  years  the  elevator  in  (luestion  had 
been  customarily  used  by  the  sui)erintendents,  bosses,  and  employees 
of  the  mill  for  the  purpose  of  riding  from  one  floor  to  another  of  the 
mill  while  engaged  in  work  there,  and  this  to  the  knowledge  of  their 


858  CORCORAN   V.    HOLBROOK.  I_CHAP.  VI. 

superiors  and  bosses,  and  that  the  plaintiff  had  been  accustomed  so  to 
ride.  The  right  of  the  plaintiff  to  use  the  elevator  to  pass  to  the  upper 
floor  is  conceded  in  the  opinion  of  the  Supreme  Court,  and  the  conclu- 
sion of  the  referee  that  she  was  not  guilty  of  any  negligence  in  so  doing 
is  undisturbed.  The  sole  ground  of  reversal  was  that  the  defendants 
were  not  liable  for  the  negligence  of  their  general  agent  in  omitting  to 
repair  the  broken  chain,  after  notice  to  him  that  it  was  unsafe,  and  that 
unless  repaired  some  of  the  employees  would  get  hurt. 

The  defendants,  who  operated  the  mill  at  the  time  of  the  injur}-, 
gave  no  personal  attention  to  conducting  the  mill,  but  it  was  managed 
b}-  a  general  agent,  who  had  general  charge  of  the  mill,  machinery,  and 
operatives,  with  power  to  purchase  all  supplies  and  hire  and  discharge 
operatives. 

It  is  evident  that  this  general  agent  was  not  a  mere  fellow-servant  of 
the  plaintiff,  who  was  a  common  hand  in  the  mill,  but  that  he  was 
charged  with  the  performance  of  the  duties  which  the  defendants  owed 
to  the  hands  emplo3-ed  in  the  mill.  There  was  no  other  person  to 
discharge  those  duties,  and  the  defendant^  could  not,  by  absenting 
themselves  from  the  mill  and  refraining  from  giving  any  personal  atten- 
tion to  its  conduct,  but  committing  the  entire  charge  of  it  to  an  agent, 
exonerate  themselves  from  those  duties,  or  from  the  consequences  of  a 
failure  to  perform  them. 

It  was  the  dut}'  of  the  defendants  toward  their  emploj'ees  to  keep  the 
elevator  in  a  safe  condition,  and  to  repair  any  injury  to  it  which  would 
endanger  the  lives  or  limbs  of  their  employees  who  were  lawfull}'  and 
properl}'  and  in  the  performance  of  their  functions  in  the  habit  of  using 
it.  That  dut}'  they  delegated  to  their  general  agent.  As  to  acts  which 
a  master  or  principal  is  bound  as  such  to  perform  toward  his  employees, 
if  he  delegates  the  performance  of  them  to  an  agent,  the  agent  occupies 
the  place  of  the  master,  and  the  latter  is  deemed  present,  and  liable  for 
the  manner  in  which  they  are  performed.  (Flike  u.  Boston  &  Albany 
R.  R.  Co.,  53  N.  Y.  549.)  This  rule  is  as  applicable  to  individuals  as 
to  corporations,  and  requires  us  to  sustain  the  conclusion  of  the  referee, 
that  the  defendants  were  responsible  for  the  neglect  of  their  general 
agent,  he  having  the  means  and  power,  to  keep  the  elevator  in  repair, 
and  that  notice  to  such  general  agent  was  notice  to  the  defendants  that 
the  elevator  was  out  of  repair,  and  the  defendants  were  consequently 
guilt}^  of  gross  negligence  in  omitting  to  repair  it. 

The  order  of  the  General  Term  should  be  reversed,  and  the  judgment 
entered  upon  the  report  of  the  referee  affirmed  with  costs. 

All  concur. 

Order  reversed  and  judgment  accordingly. 


SECT.    II.]  CRISPIN    V.    BABBITT.  859 


CRISPIN,  Respondent,  v.  BABBITT,  Appellant. 

Court  of  Appeals  of  New  York.     1880. 

[81  N.Y.  516.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  fourth  judicial  department,  atlirming  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict,  and  affirming  an  order  denying  a 
motion  for  a  new  trial. 

This  action  was  brought  to  recover  damages  for  injuries  alleged  to 
have  been  sustained  by  defendant's  negligence. 

At  the  time  of  the  accident,  plaintiff  was  working  as  a  laborer  in  the 
iron  works  of  the  defendant,  at  Whitesboro,  Oneida  Count}-.  Plaintiff 
had  assisted  to  draw  a  boat  into  a  dry  dock  connected  with  the  works ; 
after  the  boat  was  in  the  dr}-  dock,  it  became  necessary  to  pump  out 
the  water ;  this  was  done  by  means  of  a  pump,  worked  b}-  an  engine 
While  plaintiff,  with  others,  was  engaged  in  lifting  the  fl}-  wheel  of  the 
engine  off  its  centre,  one  John  L.  Babl)itt  carelessly'  let  the  steam  on 
and  started  the  wheel,  throwing  the  plaintiff  on  to  the  gearing  wheels, 
and  thus  occasioning  the  injuries  complained  of.  Defendant  lived  in 
the  city  of  Xew  York,  coming  about  once  a  month,  for  a  day  or  two,  to 
the  iron  works,  of  which,  as  the  evidence  tended  to  show,  said  Babbitt 
had  general  charge  ;  being  at  one  time  the  general  superintendent  and 
manager,  at  another  time  styled  the  "  business  and  financial  man." 
The  substance  of  the  evidence,  as  to  the  position  occupied  by  Babbitt, 
and  the  particulars  as  to  the  accident,  are  fully  set  forth  in  the  dissent- 
ing opinion  of  Earl,  J.  The  defendant's  counsel  requested  the  court 
to  charge,  among  other  things,  as  follows  :  — 

"  13th.  That  although  John  L.  Babbitt  may,  as  financial  agent  or 
superintendent,  or  overseer  or  manager,  have  represented  defendant 
and  stood  in  his  place,  he  did  so  only  in  respect  of  those  duties  which 
the  defendant  had  confided  to  him  as  such  agent,  superintendent,  over- 
seer, or  manager." 

The  court  so  charged. 

"  14th.  That  as  to  any  other  acts  or  duties  performed  by  him  in  or 
about  the  defendant's  works  at  Whitesboro,  or  in  or  about  the  defend- 
ant's business  at  said  works,  he  is  not  to  be  regarded  as  defendant's  repre- 
sentative, standing  in  his  place,  but  as  an  emploj-ee  or  servant  of  the 
defendant,  and  as  a  fellow-servant  of  the  plaintiff." 

The  court  refused  so  to  charge,  saying:  "I  will  leave  that  as  a 
question  of  fact  for  the  jury." 

"  17th.  That  if  John  L.  Babbitt  did  let  on  the  steam  while  plaintiff 
was  engaged  at  the  wheel,  he  was  not,  in  so  doing,  acting  in  the 
defendant's  place,  but  his  act  in  so  doing  was  his  own  act,  and  not  the 
act  of  the  defendant." 

The  court  refused  so  to  charge,  leaving  this  also  for  the  jury. 


860  CKISPIN   V.   BABBITT.  [CHAP.  VI. 

To  the  refusals  to  charge,  defendant's  counsel  duly  excepted. 

A.  J.  Vanderpool,  for  appellant. 

N.  E.  Kernan,  for  respondent. 

Rapallo,  J.  The  liability  of  a  master  to  his  servant  for  injuries  sus- 
tained while  in  his  employ,  b}^  the  wrongful  or  negligent  act  of  another 
employee  of  the  same  master,  does  not  depend  upon  the  doclrine  of 
respondeat  superior. 

If  the  emplo^'ee  whose  negligence  causes  the  injury  is  a  fellow- 
servant  of  the  one  injured,  the  doctrine  does  not  apply.  (Conway  v. 
Belfast,  etc.  Ry.  Co.,  11  Irish,  C.  L.  353.) 

A  servant  assumes  all  risk  of  injuries  incident  to  and  occurring 
in  the  course  of  his  employment,  except  such  as  are  the  result  of  the 
act  of  the  master  himself,  or  of  a  breach  by  the  master  of  some  term, 
either  express  or  implied,  of  the  contract  of  service,  or  of  the  duty  of 
the  master  to  his  servant,  viz. :  to  employ  competent  fellow-servants, 
safe  machinery,  etc.  But  for  the  mere  negligence  of  one  employee, 
the  master  is  not  responsible  to  another  engaged  in  the  same  general 
service. 

The  liability  of  the  master  does  not  depend  upon  the  grade  or  rank 
of  the  employee  whose  negligence  causes  the  injury.  A  superintend- 
ent of  a  factor}',  although  having  power  to  employ  men,  or  represent 
the  master  in  other  respects,  is,  in  the  management  of  the  machinerj-, 
a  fellow-servant  of  the  other  operatives.  (Albro  v.  Agawam  Canal 
Co.,  6  Cush.  75  ;  Conway  v.  Belfast  Ry.  Co.,  supra ;  Wood's  Master 
and  Servant,  §  438.  See,  also,  §§  431,  436,  437.)  On  the  same 
principle,  however  low  the  grade  or  rank  of  the  employee,  the  master 
is  liable  for  injuries  caused  by  him  to  another  servant,  if  they  result 
from  the  omission  of  some  duty  of  the  master,  which  he  has  confided 
to  such  inferior  employee.  On  this  principle  the  Flike  case  (53  N.  Y. 
649)  was  decided.  Church,  C.  J.,  says,  at  page  553  :  "  The  true  rule, 
I  apprehend,  is  to  hold  the  corporation  liable  for  negligence  in  respect 
to  such  acts  and  duties  as  it  is  required  to  perform  as  master,  without 
regard  to  the  rank  or  title  of  the  agent  intrusted  with  their  performance. 
As  to  such  acts  the  agent  occupies  the  place  of  the  corporation,  and 
the  latter  is  liable  for  the  manner  in  which  they  are  performed." 

The  liabilit}'  of  the  master  is  thus  made  to  depend  upon  the  char- 
acter of  the  act  in  the  performance  of  which  the  injury  arises,  without 
regard  to  the  rank  of  the  employee  performing  it.  If  it  is  one  pertain- 
ing to  the  duty  the  master  owes  to  his  servants,  he  is  responsible  to 
them  for  the  manner  of  its  performance.  The  converse  of  the  proposi- 
tion necessarily  follows.  If  the  act  is  one  which  pertains  only  to  the 
duty  of  an  operative,  the  employee  performing  it  is  a  mere  servant,  and 
the  master,  although  liable  to  strangers,  is  not  liable  to  a  fellow-servant 
for  its  improper  performance.  (Wood's  Master  and  Servant,  §  438.) 
The  citation  which  the  court  read  to  the  jur}',  from  21  Am.  Rep.  2, 
does  not  conflict  with,  but  sustains  this  proposition  ;  it  says  :  "  Where 
the  master  places  the  entire  charge  of  his  business  in  the  hands  of  an 


SECT.  II.]  CRISPIN   V.    BAJ5BITT.  861 

agent,  the  neglect  of  the  agent  in  supplying  and  maintaining  suitable 
instrumentalities  for  the  work  required  is  a  breach  of  duty  for  which 
the  master  is  liable."  These  were  masters'  duties.  In  so  far  as  the 
case  from  which  the  citation  is  made  goes  beyond  this,  I  cannot  recon- 
cile it  with  established  principles.  In  England,  by  a  late  act  of  Parlia- 
ment, the  rules  toucliing  the  point  now  under  consideration  have  been 
modified  in  some  respects,  but  in  this  State  no  such  legislation  has 
been  had. 

The  point  is  sharpl}-  presented  in  the  present  case,  by  the  13tb, 
14th,  and  17th  requests  to  charge.  13th.  That  although  John  L.  Bab- 
bitt may,  as  financial  agent  or  superintendent,  overseer  or  manager, 
have  represented  defendant,  and  stood  in  his  place,  he  did  so  only  in 
respect  of  those  duties  which  the  defendant  had  confided  to  him  as 
such  agent,  superintendent,  overseer,  or  manager. 

This  the  court  charged. 

14th.  That  as  to  any  other  acts  or  duties  performed  by  him  in  and 
about  the  defendant's  works  or  business  at  said  works,  he  is  not  to  be 
regarded  as  defendant's  representative,  standing  in  his  place,  but  as 
an  employee  or  servant  of  the  defendant,  and  a  fellow-servant  of  the 
plaintiff. 

This  the  court  I'efused  to  charge,  but  left  as  a  question  of  fact  to  the 
jur}',  and  defendant's  counsel  excepted.  I  think  this  was  a  question  of 
law,  and  that  the  court  erred  in  submitting  it  to  the  jury,  but  should 
have  charged  as  requested. 

The  court  was  further  specificallv  requested  to  charge  that  in  letting 
on  the  steam  John  L.  Babbitt  was  not  acting  in  defendant's  place. 
This,  I  think,  was  a  sound  proposition,  as  applied  to  the  present  case. 
It  was  the  act  of  a  mere  operative  for  which  the  defendant  would  be 
liable  to  a  stranger,  but  not  to  a  fellow-servant  of  the  negligent  em- 
ployee. As  between  master  and  servant  it  was  servant's,  and  not 
master's  duty  to  operate  the  machinery. 

The  judgment  should  be  reversed. 

Earl,  J.,  dissenting.^  On  the  one  hand,  it  is  claimed  that,  in 
determining  the  responsibility  of  the  master  in  such  cases,  we  must 
look  solely  at  the  duties  which  were  devolved  upon  the  servant 
whose  acts  are  complained  of,  and  that  if  we  find  that  the  duty 
which  he  was  engaged  in  discharging  when  he  committed  the  negli- 
gent act  or  wrong  was  one  of  those  absolute  duties  which  the  master 
owed  to  his  servants,  then  the  master  is  responsible,  no  matter  what 
was  the  grade  or  position  of  the  servant.  On  the  other  hand,  I 
claim  the  rule  to  be,  that,  in  determining  the  responsibility  of  the 
master  for  the  negligent  acts  of  his  servant,  we  must  look  solely 
at  the  position  of  such  servant,  and  we  must  consider  the  duties 
devolved  upon  him,  solely  for  the  purpose  of  determining  such  posi- 
tion, and  if  we  find  that  he  was  the  representative  of  the  master,  within 

1  The  greater  part  of  tliis  opinion  is  omitted.  —  Ed. 


862  JOHNSON   V.    BOSTON    TOW-BOAT    CO.  [CHAP.  VI 

the  rules  above  stated,  then  the  master  must  be  held  responsible  for  all 
his  acts  of  negligence  committed  within  the  scope  of  the  business 
intrusted  to  his  hands,  as  well  to  co-servants  as  to  strangers. 

It  cannot  be  claimed  that  what  John  L.  Babbitt  did  was  an  idle  thing, 
having  no  pertinency  to  the  business  in  hand.  If  he  was  there  in 
defendant's  worivs,  as  we  have  assumed  the  jury  found,  standing  in  his 
place  and  having  the  general  charge  of  his  business,  then  he  was 
empowered  to  do  whatever  he  saw  fit  in  and  about  that  business  and  in 
furtherance  of  its  objects.  Whatever  he  could  order  or  employ  another 
to  do,  he  could  do  himself  Did  he  represent  the  defendant  when  he 
ordered  the  laborers  to  put  the  boat  into  the  drj-  dock,  and  not  repre- 
sent him  a  few  minutes  later  when  he  put  his  hands  to  the  engine  to 
further  the  same  work?  If  he  had  ordered  another  servant  to  do  this 
careless  act,  the  defendant  would  have  been  liable,  and  does  the 
defendant  escape  liabilit}-  because  John  did  the  act  himself?  I  saj-, 
no.   .  .  . 

FoLGER,  C.  J.,  Andrews  and  Miller,  JJ.,  concur  with  Rapallo,  J. 
Danforth  and  Finch,  JJ.,  concur  with  Earl,  J. 

Judgment  reversed?- 


JOHNSON  V.  BOSTON  TOW-BOAT  COMPANY. 

Supreme  Judicial  Court  of  Massachusetts.     1883. 

[135  Mass.  209.] 

W.  Allen,  J.  The  defendant  is  a  corporation  engaged  in  the  busi- 
ness of  moving  cargoes  and  merchandise  by  means  of  lighters  furnished 
with  hoisting  apparatus.  The  lighter  on  which  the  plaintiff  was  em- 
ployed was  equipped  with  a  steam-engine  and  derrick  for  hoisting 
merchandise,  and,  at  the  time  the  plaintiff  was  injured,  was  taking  on 
a  load  of  iron  rails.  There  were  six  men  employed  upon  it.  —  Moore, 
the  captain,  Burns,  who  had  charge  of  the  engine,  and  four  laborers,  of 
whom  the  plaintiff  was  one.  The  plaintiff  was  injured  by  the  falling  of 
a  rail  upon  hiin  in  consequence  of  the  giving  way  of  a  rope  called  a  fall, 
part  of  the  hoisting  apparatus.  The  onl}'  negligence  charged  was  in 
respect  of  the  rope.  The  plaintiff  contended  that  the  defendant  was 
negligent  in  not  providing  and  maintaining  a  sufficient  rope  ;  and  there 
was  evidence  tending  to  show  that  the  rope  gave  way  in  consequence  of 
the  negligence  of  Moore,  and  also  that  it  was  in  consequence  of  the 
negligence  of  Burns. 

The  jury  were  properh'  instructed  that,  if  the  defendant  knew,  or  in 
the  exercise  of  reasonable  care  would  have  known,  of  the  defect  in 
the  rope,  and  did  not  remedy  the  same,  or  take  proper  means  to  guard 

1  Ace. :  Hussey  v.  Conger,  112  N.  Y.  614  (1889).  — Ed. 


SECT.  II.]  JOHNSON   V.    BOSTON   TOW-BOAT   CO.  863 

the  plaintiff  against  it,  it  was  negligent.     These  instructions  were  not 
objected  to. 

The  jury  were  also  instructed  that  the  defendant,  without  an}-  negli- 
gence of  its  own,  might  be  liable  for  the  negligence  of  Moore  or  of 
Burns,  under  the  rule  of  respondeat  siqjerior^  and  it  is  to  this  part  o' 
the  instructions,  and  to  refusals  to  instruct  in  reference  to  this,  that 
exceptions  are  taken. 

The  ground  upon  which  this  liability  is  put  in  the  charge  to  the  juryj 
and  obviously  the  only  ground  upon  which  it  could  be  put,  is  that 
Moore  and  Burns  might  not,  in  respect  of  their  negligent  acts,  have 
been  fellow  servants  with  the  plaintiff.  The  alleged  negligence  of 
Burns  was  in  not  repairing  the  rope,  as  he  was  ordered  to  do  by  Moore, 
Sucli  negligence  would  plainly  be  that  of  a  fellow  servant,  and  the  ques- 
tion has  been  argued,  and  will  be  further  considered,  with  respect  to 
Moore  alone.  The  question  is  not  whether  Moore  was  in  some  respects 
a  fellow  servant  with  the  plaintiff:  unquestionably'  he  was.  The  in- 
structions assume  that  he  was,  and  present  the  question  whether,  in 
the  particular  act  in  which  he  was  negligent,  he  was  acting  as  such  ser- 
vant, or  as  the  representative  of  tlie  defendant.  The  question  put  to 
the  jur}'  was,  "  When  the  captain  got  a  new  rope  in  place  of  a  defective 
one,  did  he  do  it  as  the  agent  of  the  defendant  in  doing  its  duty  of  pro- 
viding a  suitable  apparatus  or  machine  for  its  servants  to  work  with,  or 
did  he  do  it  simply  as  a  fellow  servant?"  The  instructions  were  errone- 
ous in  leaving  this  question  to  the  jurj*.  Moore  was  employed  by  the 
defendant  to  do  certain  things  upon  the  lighter.  Whether  in  doing 
them  he  was  a  servant  engaged  with  others  upon  the  lighter  in  a  com- 
mon emplo3inent,  or  was  a  deputy'  master  or  vice-principal,  was  a  ques- 
tion of  law  and  not  of  fact.  What  he  was  employed  to  do  was  a  question 
of  fact ;  the  capacity  in  which  he  did  it  was  an  inference  of  law.  Had 
there  been  any  question  as  to  the  facts,  thej-  should  have  been  left  to 
the  jury,  with  instructions  as  to  the  legal  inferences  to  be  drawn  from 
the  facts  which  should  be  found.  As  the  facts  were  not  disputed,  the 
question  left  to  the  jury  was  one  of  pure  law.  If  the  jury  had  found 
the  law  correctly-,  this  error  might  have  been  cured  ;  but  it  cannot 
appear  that  the  verdict  ma}-  not  have  been  found  upon  an  incorrect 
answer  to  this  question.  We  think  the  court  should  have  ruled,  in  ac- 
cordance with  the  pra^-er  of  the  defendant,  that  Moore  and  the  plaintiff 
were  fellow  servants. 

The  evidence  bearing  upon  the  point  in  question  was  not  contro- 
verted, and  the  material  part  of  it  was,  in  substance,  this:  The  de- 
fendant emplo^'ed  in  its  business  twenty-four  boats  and  one  elevator, 
and  had  a  general  manager,  who  had  the  general  control  of  its  business 
and  the  charge  of  all  its  emploj'ees,  boats,  and  apparatus,  and  who  had 
under  him  a  superintendent  of  repairs,  who  visited  and  inspected  all 
the  lighters  and  apparatus  used  in  the  business.  Moore  was  called 
the  captain  of  the  hghter  on  which  the  plaintiff  was  emplo^'ed,  and  his 
duties  were,  as  he  testified,  to  put  the  men  to  work,  to  see  that  they 


864  JOHNSON  V.   BOSTON   TOW-BOAT  CO.  [CHAP.  VI. 

did  work,  to  keep  their  time,  and  to  see  to  everything  generally ;  if  a 
new  fall  was  needed,  he  was  to  give  notice  to  the  general  manager  and 
get  an  order  for  a  new  one,  or  to  get  a  new  one  himself,  if  it  was  neces- 
sary and  he  did  not  find  the  manager.  There  was  a  spare  fall  on  board 
at  the  time.  The  manager's  instructions  to  Moore  were  to  replace  the 
falls  with  new  ones  whenever  there  was  any  defect.  It  did  not  appear 
iiow  often  it  was  necessary  to  renew  the  falls,  except  by  inference  from 
the  fact  stated,  that  from  April  30th  to  June  8th  was  not  an  improper 
time  for  one  to  remain  in  use.  The  alleged  negligence  of  Moore  was 
in  allowing  a  rope  to  remain  in  use  after  he  knew  that  it  was  unsafe. 
Moore's  duty  was  that  of  special  superintendence.  He  was  a  foreman 
to  superintend  the  labor  of  the  men  and  the  use  and  condition  of  the 
apparatus  upon  his  boat.  It  is  not  disputed  that,  in  superintending  the 
labor  of  the  men  and  the  use  of  the  apparatus  and  appliances,  he  was  a 
fellow  servant  with  the  plaintiff,  but  it  is  contended  that,  in  his  super- 
vision of  the  condition  of  the  appliances,  he  was  acting,  not  as  a  ser- 
vant, but  as  a  deputy  master. 

The  defendant  was  under  obligation  to  its  servants  to  use  reasonable 
diligence  to  maintain  in  suitable  condition  the  appliances  furnished  for 
their  use.  If  the  defendant  exercised  that  diligence,  and  provided  suit- 
able means  for  keeping  its  apparatus  in  proper  condition,  and  employed 
competent  servants  to  see  that  the  means  were  properly  used,  it  had 
fulfilled  its  duty.  It  was  incidental  to  the  use  of  the  apparatus  —  a 
part  of  its  contemplated  use  —  that  the  rope  should  be  occasionally  re- 
newed ;  and  when  the  defendant  had  furnished  the  means  for  that 
renewal,  and  employed  Moore  to  make  the  renewal  whenever  needed,  it 
employed  him  as  a  servant,  and  not  as  agent  or  deput}'.  When  a  mas- 
ter has  furnished  suitable  structures,  means,  and  apphances  for  the 
prosecution  of  a  business,  all  persons  employed  bj-  him  in  carrying  on 
the  business  by  the  use  of  the  means  furnished,  including  those  who 
use  the  means  directl}'  in  the  prosecution  of  the  business,  those  who 
maintain  them  in  a  condition  to  be  used,  and  those  who  adapt  them  to 
use  b}'  new  appliances  and  adaptations  incidental  to  their  use,  are  fel- 
low servants  in  the  general  employment  and  business.  One  employed 
in  the  care,  supervision,  and  keeping  in  ordinarv  repair  of  the  means 
and  appliances  used  in  a  business,  is  engaged  in  the  common  service. 
Thus,  a  person  charged  with  the  duty  of  keeping  the  track  of  a  railway 
in  repair ;  Waller  v.  South  Eastern  Railwa}',  2  H.  &  C.  102  ;  the  chief 
engineer  on  a  steam-vessel,  whose  duty  it  was  to  see  that  the  machiner}' 
was  kept  in  order;  Searle  -v.  Lindsay.  11  C.  B.  (N.  S.)  429;  an 
"  underlooker  "  in  a  mine,  whose  duty  it  was  to  examine  the  roof  of  the 
mine  and  prop  it  when  dangerous  ;  Hall  v.  Johnson,  3  H.  «&;  C.  589  ;  the 
general  foreman  and  manager  of  extensive  builders  and  contractors  ; 
Gallagher  v.  Piper,  16  C.  B.  (N.  S.)  669  ;  the  superintendent  having 
the  general  charge  and  management  of  a  large  manufacturing  estab- 
lishment, and  having  the  management  of  lighting  the  mill  and  manu- 
facturing gas  for  that  purpose ;  Albro  v.  Agawam  Canal,  6  Cush.  75 ; 


SECT.  IL]  JOHNSON   V.   BOSTON   TOW-BOAT  CO.  865 

—  were  all  held  to  be  servants.  In  all  the  above  cases,  the  persons 
employed  to  have  the  charge  and  superintendence  of  structures, 
machines,  or  appliances  were  held  to  be  fellow-servants  with  those  em- 
ployed in  using  them. 

In  King  v.  Boston  &  Worcester  Railroad,  9  Cush.  112,  and  129  Mass. 
277,  n.,  the  plaintiff,  a  fireman  on  a  locomotive  engine,  was  injured  by 
reason  of  a  defective  switcli-rod,  and  the  defendant,  not  being  negligent, 
was  held  not  liable.  Mr.  Justice  P'letcber  said  :  "  If  a  corporation 
itself  should  be  held  responsible  to  its  servants,  that  the  road,  when 
first  used,  was  safe  and  sufficient,  yet  Iveeping  the  road  in  proper 
repair  afterwards  would  seem  to  be  the  work  of  servants  and  laborers, 
as  much  as  anv  other  part  of  the  business  of  the  corporation."  ^  .  .  . 

The  ground  upon  which  the  master  has  been  held  liable  to  his  ser- 
vants, for  defects  in  means  and  appliances  arising  during  their  use,  has 
been  that  there  was  evidence  of  negligence  in  him.  In  Oilman  v.  Eastern 
Railroad,  10  Allen,  233,  and  13  Allen,  433,  the  liability  of  the  master 
to  the  servant  was  fully  considered.  Mr  Justice  Gray  said:  "The 
master  is  bound  to  use  ordinar}-  care  in  providing  suitable  structures 
and  engines  and  proper  servants  to  carry  on  his  business,  and  is  liable 
to  any  of  their  fellow  servants  for  his  negligence  in  this  respect.  This 
care  he  can  and  must  exercise,  both  in  procuring  and  in  keeping  or 
maintaining  such  servants,  structm-es,  and  engines.  If  he  knows,  or  in 
the  exercise  of  due  care  might  have  known,  that  his  servants  are  incom- 
petent, or  his  structures  or  engines  insufficient,  either  at  the  time  of  pro- 
curing them,  or  at  an}-  subsequent  time,  he  fails  in  his  duty."  ^  .  .  . 

The  master  is  liable  in  all  cases  for  his  own  negligence,  and  that  may 
be  shown  by  a  defect  of  such  a  nature,  or  so  long  continued,  as  to  be 
of  itself  evidence  of  negligence  in  the  master,  or  the  negligence  of  a 
servant  may  be  of  such  a  character  that  negligence  of  the  master  will 
be  inferred  from  it. 

The  instructions  in  the  case  at  bar  allowed  the  jur}-  to  find  for  the 
plaintiff  without  an\'  evidence  of  negligence  of  the  defendant,  and 
solely  on  the  ground  that  it  was  liable  for  the  negligence  of  Moore. 
The  question  under  consideration  assumes  that  sufficient  tackle  was 
provided  b}'  the  defendant,  and  sufficient  provision  made  for  renewing 
it.  Having  provided  sufficient  appliances,  a  part  of  which  required 
occasional  renewal  from  the  wear  and  tear  of  the  use  for  which  it  was 
intended,  and  provided  sufficient  means  for  such  renewal,  and  employed 
Moore  to  have  the  superintendence  of  the  workmen  and  the  apparatus 
and  appliances,  the  use  of  the  means  provided  for  keeping  the  tackle  in 

1  Here  were  cited  Gilshannon  v.  Stony  Brook  Railroad,  10  Cush.  228 ;  Seaver  v. 
Boston  &  Maine  Railroad,  14  Gray,  466;  Killea  v.  Faxon,  125  Mass.  485;  Colton  v. 
Richards,  123  Mass.  484;  Kelley  v.  Xorcro.'^s,  121  Mass.  508. —Ed. 

2  Here  were  cited  Roberts  v.  Marsh,  2  11.  &  N.  213  ;  Arkerson  r.  Dennison,  117  Mass. 
407;  Huddleston  v.  Lowell  Machine  Shop,  106  Mass.  282;  Ford  v.  Fitchburg  Rail- 
road, ante,  p.  850;  Holden  v.  Fitchhurg  Railroad.  129  Mass.  268,  273;  Harkins  v. 
Standard  Sugar  Refinery,  122  Mass.  400,  405;  Ca>zer  v.  Taylor,  10  Gray,  274;  and 
Snow  V.  Housatonic  Railroad,  8  Alleu,  441.  —  Ed. 

55 


866  JOHNSON   V.    BOSTON    TOW-BOAT   CO.  [CHAP.  VL 

suitable  couditiou  was  as  truly  a  part  of  Moore's  duty  as  servant  as  was 
the  use  of  the  apparatus  for  the  direct  purposes  of  the  business,  and,  in 
perfonning  that  duty,  he  was  a  fellow  servant  with  the  plaintiff. 

A  majority  of  the  court  are  of  the  opinion  that  the  entry  must  be 

Exceptions  sustained.^ 

L.  S.  Dahneij^  for  the  defendant. 

I.  R.  Clark^  for  the  plaintiff. 

1  Arc:  McGee  v.  Boston  Cordage  Co.,  139  Mass.  445  (1885) ;  Cregan  v.  Marston, 
126  N.  Y.  568  (1891). 

Compare  Moyuahau  v.  Hills  Co.,  146  Mass.  586  (1888) ;  Daley  v.  Boston  &  Albany 
Railroad  Co.,  147  Mass.  101  (1888) ;  Sweet  v.  Boston  &  Albany  Railroad  Co.,  156 
Mass.  284  (1892). 

See  Cone  v.  Delaware,  Lackawanna,  &  Western  Railroad  Co.,  81  N.  Y.  206  (1880) ; 
Baker  v.  Allegheny  Valley  Railroad  Co.,  95  Pa.  211  (1880). 

In  Rogers  v.  Ludlow  Manufacturing  Co.,  144  Mass.  198,  202-205  (1887),  Field,  J., 
for  the  court,  said  :  — 

"  If  a  master  who  takes  no  ])ersonal  part  in  the  management  of  his  business  has 
any  duty  to  perform  towards  his  servants,  it  is  difficult  to  say  tliat  it  is  always  wliolly 
performed  by  doing  two  things,  namely,  by  employing  competent  servants,  and  by 
furnishing  ample  means.  In  order  tliat  the  business  may  be  properly  managed,  tlie 
servants  should  not  only  be  competent,  but  they  should  be  numerous  enougli  to  do, 
and  they  should  have  the  means  of  doing,  whatever  ought  reasonably  to  be  done,  and 
such  regulations  should  be  established  as  will  insure  the  requisite  subordination  and 
control,  and  tlie  exercise  of  reasonable  intelligence  and  care  in  the  conduct  of  the 
business ;  and  it  is  almost  as  difficult  to  define  all  the  duties  of  the  master  in  these 
respects  as  to  define  the  duties  of  a  person  under  other  relations.  If  it  is  not  the  abso- 
lute duty  of  the  master  to  furnish  suitable  machinery,  and  if  he  is  not  held  to  warrant 
that  the  servants  he  employs  to  furnish  machinery,  or  to  keep  it  in  repair,  shall  always 
use  reasonable  care,  then  the  duty  of  a  master  who  does  not  personally  conduct  his 
business,  if  he  is  under  any  duty,  we  think,  must  be  to  use  reasonable  care  in  the 
management,  and  that  is  to  exercise,  or  have  exercised,  a  reasonable  supervision  over 
the  conduct  of  his  servants,  as  well  as  to  use  reasonable  care  in  seeing  that  his  ser- 
vants are  competent,  and  are  furnished  with  suitable  means  for  carrying  on  the 
business. 

"  It  is  settled  in  this  Commonwealth  that  all  servants  employed  by  the  same  master 
in  a  common  service  are  fellow-servants,  whatever  may  be  their  grade  or  rank.  Albro 
V.  Agawam  Canal,  6  Cush.  75  ;  O'Connor  v.  Roberts,  120  Mass.  227  ;  Walker  v.  Bos- 
ton &  Maine  Railroad,  128  Mass.  8;  Holden  v.  Fitchburg  Railroad,  129  Mas.s.  268 
McDermott  v.  Boston,  1.33  Mass.  349  ;  Flynn  v.  Salem,  134  Mass.  351  ;  Mackin  v 
Boston  &  Albany  Railroad,  135  Mass.  201. 

"  It  is  also  settled  that  the  master  is  only  hound  to  use  reasonable  care  in  procuring 
suitable  machines,  in  keeping  them  in  proper  repair,  and  in  hiring  and  retaining  com- 
petent servants.  The  difficult  question  is  what  conduct  on  the  part  of  the  master  sat- 
isfies this  obligation.  This  question  was  carefully  considered  in  Holden  v.  Fitchburg 
Railroad,  uhi  supra.  <  It  is  there  said  that  the  master  '  is  bound  to  use  reasonable  care 
in  selecting  his  servants,  and  in  keeping  the  engines  with  which,  and  the  buildings, 
places,  and  structures  in,  upon,  or  over  which,  his  business  is  carried  on,  in  a  fit  and 
safe  condition,  and  is  liable  to  any  of  his  servants  for  injuries  suffered  by  them  by 
reason  of  his  negligence  in  this  respect.  ...  It  is  difficult,  if  not  impossible,  to  lay 
down  a  more  definite  rule  applicable  to  all  cases.  As  to  switches  or  turn-tables  upon 
the  line  of  a  railroad,  the  employment  of  suitable  persons  to  select,  construct,  or  in- 
spect, has  been  held  to  satisfy  the  obligation  of  the  corporation.  ...  On  the  other 
hand,  where  a  locomotive  engine  in  actual  use  is  imperfectly  constructed,  or  is  worn 
out,  it  has  been  held  that  the  fact  that  the  corporation  has  employed  suitable  persons 
to  construct  it,  or  to  keep  it  in  repair,  does  not,  as  matter  of  law,  afford  a  conclusive 


SECT.  II.]  JOHNSON   V.    BOSTON   TOW-BOAT   CO.  867 

defence ;  but  that  the  question  is  whether,  under  all  the  circumstances,  the  corpora- 
tion, acting  by  its  appropriate  oflScers  or  agents,  has  used  that  diligence,  and  taken 
those  precautions,  which  its  duty  as  a  master  requires.'     129  Mass.  276-278.  .  .  . 

"  It  is  the  duty  of  the  master  to  e.xercise  a  reasonable  supervision  over  the  condi- 
tion in  which  the  machinery;  structures,  and  other  appliances  used  in  his  business  are 
kept  by  his  servants,  and  ...  he  cannot  wholly  escape  responsibility  by  delegating 
the  performance  of  this  duty  to  servants ;  ...  the  negligence  of  his  servants  in  repair- 
ing, or  in  failing  to  repair,  machinery,  is  not  necessarily  the  negligence  of  the  master, 
but  .  .  .  it  is  also  to  be  deter nuned  in  each  case  whether  the  master  has  exercised  a 
reasonable  supervision  over  his  servants,  and  reasonable  care  in  seeing  tliat  his  ma- 
chinery is  kept  in  proper  condition,  although  he  may  have  employed  competent  ser- 
vants, and  furnished  them  with  suitable  materials,  and  instructed  them  to  keep  the 
machinery  in  repair. 

"  As  was  said  in  Johnson  v.  Boston  Tow-Boat  Co.,  135  Mass.  215  :  '  The  master  is 
liable  in  all  cases  for  his  own  negligence,  and  that  may  be  .shown  by  a  defect  of  such 
a  nature,  or  so  long  continued,  as  to  be  of  itself  evidence  of  negligence  in  the  master, 
or  the  negligence  of  a  servant  may  be  of  such  a  character  that  negligence  of  the  mas- 
ter may  be  inferred  from  it.' 

"  We  are  aware  that  this  rule  is  somewhat  indefinite,  and  is,  perhaps,  not  precisely 
that  which  generally  prevails  in  the  United  States,  ^'orthe^n  Pacific  KaUroad  v. 
Herbert,  116  U.S.  642;  Benzing  v.  Steinway,  101  N.  Y.  547." 

In  Wabash  Railway  Co.  v.  McDaniels,  107"  U.  S.  454,  459-460  (1882),  Harlan,  J., 
for  the  court,  said :  "  The  discussion  in  the  adjudged  cases  discloses  no  serious  conflict 
in  the  courts  as  to  the  general  rule,  but  only  as  to  the  words  to  be  used  in  defining  the 
precise  nature  and  degree  of  care  to  be  observed  by  the  employer.  The  decisions, 
with  few  exceptions,  not  important  to  be  mentioned,  are  to  the  effect  that  the  corpora 
tion  nmst  exercise  ordinary  care.  But  according  to  the  best  considered  adjudications, 
and  upon  the  clearest  grounds  of  necessity  and  good  faith,  ordinary  care,  in  the  selec- 
tion and  retention  of  servants  and  agents,  implies  that  degree  of  diligence  and  precau- 
tion which  the  exigencies  of  the  particular  service  reasonably  require.  It  is  such  care 
as,  in  view  of  the  consequences  that  may  result  from  negligence  on  the  part  of  em- 
ployees, is  fairly  commensurate  with  the  perils  or  dangers  likely  to  be  encountered. 
In  sub.stance,  though  not  in  words,  the  jury  were  so  instructed  in  the  present  case. 
That  the  court  did  not  use  the  word  '  ordinary '  in  its  charge  is  of  no  consequence, 
since  the  jury  were  rightly  instructed  as  to  the  degree  of  diligence  which  the  company 
was  bound  to  exercise  in  the  employment  of  telegraphic  night-operators.  The  court 
correctly  said  that  that  was  a  position  of  great  responsibility,  and,  in  view  of  the  con» 
sequences  which  might  result  to  employees  from  the  carelessness  of  telegraphic  ope- 
rators, upon  whose  reports  depended  the  movement  of  trains,  the  defendant  was  under 
a  duty  to  exercise  '  proper  and  great  care '  to  select  competent  persons  for  that  branch 
of  its  service.  But  that  there  might  be  no  misapprehension  as  to  what  was  in  law 
such  care,  as  applicable  to  this  case,  the  court  proceeded,  in  the  same  connection,  to 
say  that  the  law  presumed  the  exercise  by  the  company  of  proper  diligence,  and  unless 
it  was  affirmatively  shown  that  the  incapacity  of  McHenry  when  employed,  or  after 
his  employment  and  before  the  collision,  was  known  to  it,  or  by  reasonable  diligence 
could  have  been  ascertained,  the  plaintiff  was  not  entitled  to  recover.  Ordinary  care, 
then,  —  and  the  jury  were,  in  effect,  so  informed,  —  implies  the  exercise  of  reasonable 
diligence,  and  reasonable  diligence  implies,  as  between  the  employer  and  employee, 
such  watchfulness,  caution,  and  foresight  as,  under  all  the  circumstances  of  the  par- 
ticular service,  a  corporation  controlled  bv  careful,  prudent  officers  ought  to  exercise. 

"  These  observations  meet,  in  part,  the  sugprestion  made  by  counsel,  that  ordinary 
care  in  the  employment  and  retention  of  railroad  employees  means  only  that  degree  of 
diligence  which  is  customary,  or  is  sanctioned  by  the  general  practice  and  usage  which 
obtains  among  those  intrusted  with  the  management  and  control  of  railroad  property 
and  railroad  employees.  To  this  view  we  cannot  give  our  assent.  There  are  general 
expressions  in  adjudged  cases  which  apparently  sustain  the  position  taken  by  counsel. 
But  the  reasoning  upon  which  those  cases  are  based  is  not  satisfactory,  nor,  as  we 
think,  consistent  with  that  good  faith  which,  at  all  times,  should  characterize  the  in- 


868  ELDRIDGE   V.    THE    ATLAS    STEAMSHIP    CO.  "[CHAP.  VI. 


ELDRIDGE,    Respondent  v.   THE  ATLAS   STEAMSHIP 
COMPANY,    Appellant. 

Court  of  Appeals  of  New  York,  Second  Division.     1892. 
[134  N.  Y.  187.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  first  judicial  department,  entered  upon  an  order  made  October 
28,  1890,  which  affirmed  a  judgment  in  favor  of  plaintiff,  entered  upon 
a  verdict,  and  affirmed  an  order  denying  a  motion  for  a  new  trial. 

This  was  an  action  for  negligence,  in  that  plaintiff,  a  sailor  in  the 
employ  of  defendant  upon  its  ship,  while  in  obedience  to  orders  he  was 
operating  its  winch  —  an  alleged  unsafe  machine  —  had  his  hand  caught 
in  the  cog-wheels  thereof,  and  the  ends  of  four  fingers  taken  off. 

November  9,  1886,  plaintiff  at  New  York  engaged  as  an  able-bodied 
seaman  to  serve  on  board  defendant's  ship,  the  Alvena.  The  defendant 
is  a  British  corporation,  but  it  was  not  shown  under  what  flag  the  ship 
sailed.  The  plaintiff  had  not  served  upon  that  ship  before.  The  ship 
had  three  winches,  two  horizontal  —  one,  No.  3,  diagonal.  The  cog- 
wheels of  the  horizontal  winches  were  covered ;  those  of  the  diagonal 
No.  3  were  without  cover.  No.  3  was  an  old-fashioned  winch  ;  the 
other  two  of  modern  construction.  Plaintiff  did  not  observe  No.  3 
before  he  went  to  dut}'  November  tenth,  on  which  da}'  the  ship  sailed 
from  New  York  for  Kingston,  Jamaica.  From  Kingston  the  ship  pro- 
ceeded to  Aspinwall,  and  there  was  hauled  alongside  defendant's  ship 
Athos  ;  some  of  the  cargo  of  the  Athos  was  then  transferred  to  the 
Alvena.  Plaintiff  was  ordered  to  operate  winch  No.  3  in  transferring 
the  cargo.     He  had  to  stand  between  the  winch  and  the  house  of  the 

terconrse  between  officers  of  raih-oad  corporations  and  their  employees.  It  should  not 
be  presumed  that  the  employees  soujjht  or  accepted  service  upon  the  implied  under- 
standing that  they  would  exercise  less  care  than  that  which  prudent  and  humane 
managers  of  railroads  ought  to  observe.  To  charge  a  brakeman,  when  entering  the 
service  of  a  railroad  company,  with  knowledge  of  the  degree  of  care  generally  or  usu- 
ally observed  by  agents  of  railroad  corporations  in  the  selection  and  retention  of  tele- 
graphic operators  along  the  line  traversed  by  trains  of  cars  —  a  branch  of  the 
company's  service  of  which  he  can  have  little  knowledge,  and  with  the  employees 
specially  engaged  therein  he  can  ordinarily  have  little  intercourse  —  is  unwarranted 
by  common  experience.  And  to  say,  as  matter  of  law,  that  a  railroad  corporation 
discharged  its  obligation  to  an  employee  —  in  respect  of  the  fitness  of  co-employees 
whose  negligence  has  caused  him  to  be  injured  —  by  exercising,  not  that  degree  of 
care  which  ought  to  have  been  observed,  but  only  such  as  like  corporations  are  accus- 
tomed to  observe,  would  go  far  towards  relieving  them  of  all  responsibility  whatever 
for  negligence  in  the  selection  and  retention  of  incompetent  servants.  If  the  general 
practice  of  such  corporations  in  the  appointment  of  servants  is  evidence  which  a  jury 
may  consider  in  determining  whether,  in  the  particular  case,  the  requisite  degree  of 
care  was  observed,  such  practice  cannot  be  taken  as  conclusive  upon  the  inquiry  as  to 
the  care  which  ought  to  have  been  exercised.  A  degree  of  care  ordinarily  exercised 
in  such  matters  may  not  be  due,  or  reasonable,  or  proper  care,  and  therefore  not  ordi- 
nary care,  within  the  meaning  of  the  law."  —  Ed. 


SECT.  II.]  ELDKIDGE    V.    THE    ATLAS    STEAMSHIP   CO. 


869 


gljip  —  a  space  eighteen  inche.8  wide.  He  had  to  operate  a  valve  with 
his  right  hand  so  as  to  let  the  steam  on  or  shut  it  off  as  ordered  by  his 
superior,  and  to  operate  a  lever  with  his  left  hand  so  as  to  revolve  the 
drum  forward  or  backward  as  ordered.  There  was  so  much  noise  that 
tliese  orders  were  given  by  signals  by  the  officer.  Thus  the  officer 
raised  his  hand  as  the  order  to  go  forward,  moved  it  down  to  go  back- 
ward, opened  it  wide  to  stop,  and  twirled  it  round  fast  to  go  fast,  etc. 
The  officer  was  on  the  right  of  the  front  of  the  plaintiff.  The  valve  to 
be  moved  by  plaintiff's  left  hand  was  as  high  as  his  knee  and  was  at 
the  end  of  the  winch  near  its  middle.  The  lever  to  be  moved  by  his 
left  hand  was  on  the  outside  of  the  side  of  the  winch.  The  plaintiff's 
testimony  was  to  the  effect  that  he  had  to  reach  over  the  big  and  small 
cog-wheels  to  take  hold  of  the  lever.  The  defendant's  testimony  was 
to  the  effect  that  he  might  have  reached  around  the  winch  and  seized 
the  lever  without  passing  his  hand  over  the  cog-wheels.  The  size  of 
the  winch  is  not  given. 

While  watching  for  orders  and  at  the  same  time  obeying  them,  the 
plaintiff's  fingers,  in  grasping  for  the  lever,  came  in  contact  with  the 
cog-wheels  and  were  crushed.  His  contention  is,  if  these  wheels  had 
been  covered  as  the  wheels  of  the  other  winches  were,  his  fingers  would 
have  been  protected.  Defendant  gave  testimony  tending  to  show  that 
the  winch  was  safe  enough  if  plaintiff  had  been  reasonably  careful. 
The  trial  court  charged  the  jurj'  that  if  plaintiff  entered  defendant's 
service,  knowing  that  this  winch  had  no  cover,  he  could  not  recover 
upon  that  ground,  and  if  his  own  negligence  in  any  way  contributed 
to  his  injury  he  could  not  recover. 

The  court  also  charged  that  plaintiff  was  bound  "to  obey  all  lawful 
orders  of  the  defendant's  officers  and  for  a  refusal  would  have  forfeited 
his  wages  or  been  punished.     Testimon}'  was  given  to  this  effect. 

The  court  also  charged  that  if  this  accident  had  happened  on  land, 
plaintiff  not  working  as  a  sailor,  he  could  not  recover,  but  left  it  for  the 
jury  to  say  whether  in  view  of  the  plaintiff's  duty  as  a  sailor  he  \yas 
guilty  of  negligence. 

Everett  P.  Wheeler  for  appellant. 

Jacob  Fromme  for  respondent. 

Landon,  J.  In  view  of  the  verdict  and  the  instructions  of  the  trial 
court  we  assume  that  the  plaintiff  knew  that  the  winch  could  not  be 
operated  without  risk  of  danger  to  himself,  but  was  constrained  to  obe}' 
the  order  given  him  by  his  superior  to  operate  it,  because  he  knew  that 
disobedience  would  result  in  his  punishment,  that  he,  therefore,  did 
operate  it  and  because  of  its  known  defects  of  construction  was  injured, 
notwithstanding  his  exercise  of  reasonable  care  to  avoid  injury. 

The  defendant  insists  that  the  command  to  operate  this  dangerous 
winch  was  not  lawful,  and,  therefore,  plaintiff  might  rightfull}'  have 
refused  obedience.  If  it  be  conceded  that  the  command  was  unlawful, 
it  does  not  necessarily  follow  that  plaintiff's  obedience  was  negligence. 
For  whether  the  command  was  lawful  or  unlawful,  the  evidence  is  to 


870  ELDRIDGE   V.   THE   ATLAS    STEAMSHIP   CO.  [CHAP.  VI. 

the  effect  that  his  disobedience  would  have  resulted  in  his  punishment. 
The  boatswain,  under  whose  orders  plaintiff  was  operating  the  winch, 
testified  that  the  plaintiff  "  was  bound  to  obey  the  order  that  I  gave 
him  ;  if  he  did  not  obey  the  order  he  would  have  been  put  in  irons  and 
fined."  Grant  that  the  plaintiff  had  been  so  learned  in  the  law  as  to 
know  that  the  courts  would  ultimately  decide  that  the  command  was 
unlawful,  and  disobedience  to  it  lawful,  he  could  know  no  wa}-  of 
escape  from  the  ship's  punishment  of  his  disobedience,  for  there  was 
none.  The  jury  found  in  effect  that  he  was  coerced  through  fear  of 
punishment  into  obedience.  If  the  command  was  unlawful,  the  defend- 
ant's case  is  not  improved  by  the  fact  that  the  punishment  it  would 
visit  upon  disobedience  was  also  unlawful.  In  an}'  event  the  plaintiff 
was  in  a  dilemma.  He  had  to  choose  between  present  punishment  with 
a  possible  hope  of  remote  justification,  and  customaiy  obedience  to 
orders  with  the  hope  that  by  care  he  would  escape  injuiy.  Grant  that 
he  made  a  mistake  in  judgment  under  these  difficult  conditions,  the 
law  does  not  adjudge  it  to  be  negligence,  and  the  jury  upon  considera- 
tion have  refused  to  do  so.  We  cannot  hold  that  their  refusal  was 
error. 

Except  as  the  case  is  affected  by  the  dangerous  condition  of  the  winch, 
the  order  to  operate  it  was  lawful  and  the  plaintiff's  obedience  was 
the  duty  of  his  service.  Whatever  ma}'  be  the  practical  administration 
of  law  or  of  arbitrary  power  on  ship-board,  the  plaintiff,  if  amenable 
to  the  law  of  the  United  States,  was  also  punishable  by  our  courts  for 
wilful  disobedience  to  any  lawful  command.  Section  4596,  U.  S.  R.  S. 
provides,  "Whenever  any  seaman  who  has  been  lawfully  engaged 
.  .  .  commits  any  of  the  following  offences,  he  shall  be  punishable  as 
follows  :  Fourth.  For  wilful  disobedience  to  any  lawful  command,  by 
imprisonment  for  not  more  than  two  months,  and  also,  at  the  discretion 
of  the  court,  by  forfeiture  out  of  his  wages  of  not  more  than  four  days' 

pay." 

Thus  the  plaintiff  had  to  choose  whether  he  would  obey  the  order, 
or  take  the  hazard  of  liability  under  the  statute.  Whatever  ma}-  have 
been  the  law  of  the  flag  of  the  ship,  or  of  the  United  States  of  Colum- 
bia, in  whose  port  the  injury  was  received,  it  was  not  shown  and  hence 
the  parties  in  our  forum  must  accept  the  law  as  we  administer  it.  (The 
Scotland,  105  U.  S.  24.) 

In  this  view  of  the  case,  if  the  plaintiff  made  a  mistake  in  judgment 
the  defendant  could  rightfully  ask  no  more  than  that  the  jury  should 
pass  upon  the  facts. 

We  find  no  error  of  law  requiring  a  reversal. 

Haight,  J.  (dissenting).^  If,  as  we  have  shown,  the  machine  was 
reasonably  safe  if  operated  with  care,  the  master  had  the  right  to  require 
the  plaintiff  to  operate  it,  and  it  was  his  duty  to  observe  the  care  neces- 
sary to  prevent  the  injury. 

^  The  greater  part  of  this  opinion  has  been  omitted.  — Eix 


SECT.  II.  J  ELDRIDGE   V.   THE    ATLAS    STEAMSHIP   CO.  871 

But  assuming  that  the  machine  was  dangerous,  there  were  no  threats 
made  b}'  tlie  master  or  evidence  given  to  show  coercion.  The  usual 
order  was  given  to  the  plaintiff  to  operate  the  winch.  He  made  no 
objection  or  complaint  in  reference  thereto.  He  was  in  port  and  could 
have  left  the  vessel  and  sought  the  protection  of  the  consul  if  the 
orders  of  the  master  were  unlawful. 

Coercion  must  be  established  by  the  evidence.  The  bare  fact  that 
he  was  told  to  operate  the  winch  does  not  establish  an  intent  to  unlaw- 
fully interfere  with  him,  and  we  cannot,  from  that  fact  alone,  assume 
that  he  would  have  been  unlawfully  punished  had  he  refused  to  obey 
the  order.   .   .   . 

All  concur  with  Landon,  J.,  except  Follett,  C.  J.,  Haight  and 
Parker,  J  J.,  dissenting. 

Judgment  affinned} 

1  In  Membery  v.  Great  Western  Ry.  Co.,  14  App.  Cas.  179,  187-188  (1889),  Lord 
Bramwell  said :  — 

"  I  hold  that  where  a  man  is  not  physically  constrained,  where  he  can  at  his  option 
do  a  thing  or  not,  and  he  does  it,  the  maxim  applies.  What  is  voletis  ?  willing ;  and 
a  man  is  willing  when  he  wills  to  do  a  thing  and  does  it.  No  doubt  a  man,  popularly 
speaking,  is  said  to  do  a  thing  unwillingly,  with  no  good  will,  but  if  he  does  it,  no 
matter  what  his  dislike  is,  he  prefers  doing  it  to  leaving  it  aloue.  He  wills  to  do  it. 
He  does  not  will  not  to  do  it.  I  suppose  nolens  is  the  opposite  of  volens,  its  negative. 
There  are  two  men,  one  refuses  to  do  work,  wills  not  to  do  it,  and  does  not  do  it.  The 
other  grumbles,  but  wills  to  do  it,  and  does  it.  Are  both  men  nolentes,  unwilling  7 
Suppose  an  extra  shilling  induced  the  man  who  did  the  work.  Is  he  nolens,  or  has  the 
shilling  made  him  volens  ?  There  seems  to  be  a  strange  notion,  either  that  a  man  who 
does  a  thing  and  grumbles  is  nolens,  is  unwilling,  has  not  the  will  to  do  it,  or  that  there 
is  something  intermediate  between  nolens  and  rolens,  something  like  a  man  being  with- 
out a  will,  and  yet  who  wills.  If  the  shilling  made  liim  volens,  why  does  not  the  desire  to 
continue  employed  do  so  ?  If  he  would  have  a  right  to  refuse  the  work  and  his  dis- 
charge would  be  wrongful,  with  a  remedy  to  him,  why  does  not  his  preference  of 
certain  to  an  uncertain  law  not  make  him  volens  as  much  as  any  other  motive  ?  There 
have  been  an  infinity  of  profoundly  learned  and  useless  discussions  as  ,to  freedom  of  the 
will ;  but  this  notion  is  new. 

"  This  is  an  important  question.  Is  the  maxim  to  be  got  rid  of  1  Are  we  to  say 
Volenti  Jit  injuria  provided  he  grumbles,  as  Mr.  Bell  contended  ?  To  do  so  would  be 
most  unjust  and  unreasonable.  The  master  says,  Here  is  the  work,  do  it  or  let  it  alone. 
If  you  do  it,  I  pay  you ;  if  not,  I  do  not.  If  he  has  engaged  him,  he  says,  I  discharge 
you  if  you  do  not  do  it ;  I  think  I  am  right ;  if  wrong,  I  am  liable  to  an  action.  The 
master  says  this,  the  servant  does  the  work  and  earns  his  wages,  and  is  paid,  but  is 
hurt.  On  what  principle  of  reason  or  justice  should  the  master  be  liable  to  him  in 
respect  of  that  hurt  ?  " 

With  the  principal  case  compare  Benson  v.  Goodwin,  147  Mass.  237  (1888) ;  Iledley 
?;.  Pinkney  &  Sons  Steamship  Co.,  [1894]  A.  C.  222. 

See  Thompson  v.  Hermann,  47  Wis.  602  (1879) ;  Thrussell  v.  Handyside  20  Q.  B.  D. 
359  (1888). 

Compare  also  Leary  v.  Boston  &  Albany  Railroad  Co.,  139  Mass.  .580  (1885) 
Dougherty  v.  West  Superior  Iron  &  Steel  Co.,  88  Wis.  343  (1894).  —  Ed. 


872  BALTIMORE    AND    OHIO    RAILROAD   CO.    V.    BAUGH.       [cilAr.  VL 


BALTIMORE  AND  OHIO  RAILROAD  COMPANY  v.   BAUGH. 

Supreme  Court  of  United  States.      1893. 

[149  U.  S.  368.] 

John  Baugh,  defendant  in  error,  was  employed  as  a  fireman  on  a 
locomotive  of  the  plaintiff  in  error,  and  while  so  emplo3'ed  was  injured, 
as  is  claimed,  through  the  negligence  of  the  engineer  in  charge  thereof. 
He  commenced  a  suit  to  recover  for  these  injuries  in  the  Circuit  Court 
of  the  United  States  for  the  Southern  District  of  Ohio. 

The  circumstances  of  the  injur}'  were  these :  The  locomotive  was 
manned  by  one  Hite,  as  engineer,  and  Baugh,  as  fireman,  and  was 
what  is  called  in  the  testimony  a  "  helper."  On  May  4,  1885,  it  left 
Bellaire,  Ohio,  attached  to  a  freight  train,  which  it  helped  to  the  top 
of  the  grade  about  twenty  miles  west  of  that  point.  At  the  top  of  the 
grade  the  helper  was  detached,  and  then  returned  alone  to  Bellaire. 
There  were  two  ways  in  which  it  could  return  in  conformity  to  the  rules 
of  the  compan}',  —  one  on  the  special  orders  of  the  train  dispatcher  at 
Newark,  and  the  other  by  following  some  regular  scheduled  train  carrj-- 
ing  signals  to  notify  trains  coming  in  the  opposite  direction  that  the 
helper  was  following  it.  This  method  was  called  in  the  testimony 
"  flagging  back."  On  the  day  in  question,  without  special  orders,  and 
not  following  any  scheduled  train,  the  helper  started  back  for  Bellaire, 
and  on  the  way  collided  with  a  regular  local  train,  and  in  the  collision 
Baugh  was  injured.  Baugh  had  been  in  the  emplo}-  of  the  railroad 
company'  about  a  year,  had  been  fireman  about  six  months,  and  had 
run  on  the  helper,  two  trips  a  day,  about  two  months.  He  knew  that 
the  helper  had  to  keep  out  of  the  wa}'  of  the  trains,  and  was  familiar 
with  the  method  of  flagging  back. 

No  testimony  was  oflered  by  the  defendant,  and  at  the  close  of  the 
plaintiff"'s  testimony  the  defendant  asked  the  court  to  direct  a  nonsuit, 
which  motion  was  overruled,  to  which  ruling  an  exception  was  duly 
taken.  In  its  charge  to  the  jury  the  court  gave  this  instruction  :  "  If 
the  injury  results  from  negligence  or  carelessness  on  the  part  of  one  so 
placed  in  authority  over  the  employee  of  the  company,  who  is  injured, 
as  to  direct  and  control  that  employee,  then  the  company  is  liable." 
To  which  instruction  an  exception  was  duly  taken.  The  jury  returned 
a  verdict  for  the  plaintiff  for  $6,750,  and  upon  this  verdict  judgment 
was  entered.  To  reverse  which,  the  railroad  company  sued  out  a  writ 
of  error  from  this  court. 

Mr.  John  K.  Coioen  (with  whom  was  Mr.  Hugh  L.  Bond,  Jr..,  on 
the  brief),  for  plaintiff  in  error. 

Mr.  L.  Daiiford  (with  whom  was  Mr.  James  C.  Tallman  on  the 
brief),  for  defendant  in  error. 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

The  single  question  presented  for  our  determination  is  whether  the 


SECT.  II.]       BALTIMORE    AND   OHIO    RAILROAD    CO.    V.    BAUGH.  873 

engineer  and  fireman  of  this  locomotive,  running  alone  and  without 
any  train  attached,  were  fellow-servants  of  the  company,  so  as  to  pre- 
clude the  latter  from  recovering  from  the  company  for  injuries  caused 
by  the  negligence  of  the  former.^  .  .  . 

Counsel  for  defendant  in  error  rel}-  principally  upon  the  case  of  Rail- 
road Co.  V.  Ross,  112  U.  S.  377,  taken  in  connection  with  this  portion 
of  rule  No.  10  of  the  company:  "•Whenever  a  train  or  engine  is  run 
without  a  conductor,  the  engineman  thereof  will  also  be  regarded  as 
conductor,  and  will  act  accordingly."  The  Ross  case,  as  it  is  com- 
monly known,  decided  that  "  a  conductor  of  a  railroad  train,  who  has 
a  right  to  command  the  movements  of  a  train  and  control  the  persons 
employed  upon  it,  represents  the  company  while  performing  those 
duties,  and  does  not  bear  the  relation  of  fellow-servant  to  the  engineer 
and  other  employees  on  the  train."  The  argument  is  a  short  one: 
The  conductor  of  a  train  i-epresents  the  company,  and  is  not  a  fellow- 
servant  with  his  subordinates  on  the  train.  The  rule  of  the  company 
provides  that  when  there  is  no  conductor,  the  engineer  shall  be  re- 
garded as  a  conductor.  Therefore,  in  such  case  he  represents  the 
compan}^,  and  is  likewise  not  a  fellow-servant  with  his  subordinates. 
But  this  gives  a  potenc}"  to  the  rule  of  the  company  which  it  does  not 
possess.  The  inquiry'  must  always  be  directed  to  the  real  powers  and 
duties  of  the  official,  and  not  simpl}'  to  the  name  given  to  the  office. 
The  regulations  of  a  company  cannot  make  the  conductor  a  fellow- 
servant  with  his  subordinates,  and  thus  overrule  the  law  announced  in 
the  Ross  case.  Neither  can  it,  by  calling  some  one  else  a  conductor, 
bring  a  case  within  the  scope  of  tlie  rule  there  laid  down.  In  other 
words,  the  law  is  not  shifted  backwards  and  forwards  by  the  mere 
regulations  of  the  company-,  but  applies  generall}-,  irrespectively  of  all 
such  regulations.  There  is  a  principle  underlying  the  decision  in  that 
case,  and  the  question  always  is  as  to  the  applicability'  of  that  principle 
to  the  given  state  of  facts. 

What  was  the  Ross  case,  and  what  was  decided  therein  ?  The  in- 
struction given  on  the  trial  in  the  Circuit  Court,  which  was  made  the 
principal  ground  of  challenge,  was  in  these  words  :  "It  is  ver}'  clear, 
I  think,  that  if  the  company  sees  fit  to  place  one  of  its  employees  under 
the  control  and  direction  of  another,  that  then  the  two  are  not  fellow- 
servants  engaged  in  the  same  common  employment,  within  the  mean- 
ing of  the  rule  of  law  of  which  I  am  speaking."  The  language  of  that 
instruction,  it  will  be  perceived,  is  very  like  that  of  the  one  here  com- 
plained of;  and  if  this  court  had  approved  that  instruction  as  a  general 
rule  of  law,  it  might  well  be  said  that  that  was  sufficient  authority  for 
sustaining  this  and  affirming  the  judgment.  But  though  the  question 
was  fairl}'  before  the  court,  it  did  not  attempt  to  approve  the  instruc- 
tion generally,  but  simply  held  that  it  was  not  erroneous  as  applied  to 
the  facts  of  that  case.     This  is  evident  from  this  language,  found  in 

^  The  omitted  passages  held  that  the  question  is  not  one  of  local  law.  —  Ed. 


874  BALTLMORE    AND    OHIO    KAILROAD    CO.    V.    BAUGH.       [CHAP.  VL 

the  latter  part  of  the  ophiion  (p.  394),  and  which  is  used  in  suinniing 
up  the  conchisions  of  the  court:  "  We  agree  with  them  in  holding  — 
and  the  present  case  requires  no  further  decision  —  that  the  conductor 
of  a  railway  train,  who  commands  its  movements,  directs  when  it  shall 
start,  at  what  stations  it  shall  stop,  at  what  speed  it  shall  run,  and  has 
the  general  management  of  it,  and  control  over  the  persons  employed 
upon  it,  represents  the  company,  and  therefore  that,  for  injuries  result- 
ing from  his  negligent  acts,  the  compau}-  is  responsible.  If  such  a  con- 
ductor does  not  represent  the  company,  then  the  train  is  operated 
without  any  representative  of  its  owner.  If,  now,  we  apply  these 
views  of  the  relation  of  the  conductor  of  a  railwa}'  train  to  the  com- 
pany, and  to  the  subordinates  under  him  on  the  train,  the  objections 
urged  to  the  charge  of  the  court  will  be  readily  disposed  of.  Its  lan- 
guage in  some  sentences  may  be  open  to  verbal  criticism,  but  its  pur- 
port, touching  the  liabilit}-  of  the  company,  is  that  the  conductor  and 
engineer,  though  both  emploj^ees,  were  not  fellow-servants  in  the  sense 
in  which  that  terra  is  used  in  the  decisions."  It  is  also  clear  from  an 
examination  of  the  reasoning  running  through  the  o})inion,  for  there  is 
nowhere  an  argument  to  show  that  the  mere  fact  that  one  servant  is 
given  control  over  another  destroys  the  relation  of  fellow-servants. 
After  stating  the  general  rule,  that  a  servant  entering  into  service  as- 
sumes the  ordinarj-  risks  of  such  employment,  and,  among  them,  the 
risk  of  injuries  caused  through  the  negligence  of  a  fellow-servant,  and 
after  referring  to  some  cases  on  the  general  question,  and  saying  that 
it  was  unnecessary  to  la}'  down  an}'  rule  which  would  determine  in  all 
cases  what  is  to  be  deemed  a  common  employment,  it  turns  to  that 
which  was  recognized  as  the  controlling  fact  in  the  case,  to  wit,  the 
single  and  absolute  control  which  the  conductor  has  over  the  manage- 
ment of  a  train,  as  a  separate  branch  of  the  company's  business,  and 
sa^'s  (p.  390)  :  "  There  is,  in  our  judgment,  a  clear  distinction  to  be 
made  in  their  relation  to  their  common  principal,  between  servants  of 
a  corporation,  exercising  no  supervision  over  others  engaged  with  them 
in  the  same  emplovment,  and  agents  of  the  corporation,  clothed  with 
the  control  and  management  of  a  distinct  department,  in  which  their 
duty  is  entirely  that  of  direction  and  superintendence.  .  .  .  We  know 
from  the  manner  in  which  railways  are  operated  that,  subject  to  the 
general  rules  and  orders  of  the  directors  of  the  companies,  the  con- 
ductor has  entire  control  and  management  of  the  train  to  which  he  is 
assigned.  He  directs  when  it  shall  start,  at  what  speed  it  shall  run, 
at  what  stations  it  shall  stop,  and  for  what  length  of  time,  and  ever}'- 
thing  essential  to  its  successful  movements  ;  and  all  persons  employed 
on  it  are  subject  to  his  orders.  In  no  proper  sense  of  the  term  is  he  a 
fellow-servant  with  the  fireman,  the  brakemen,  the  porters,  and  the 
engineer.  The  latter  are  fellow-servants  in  the  running  of  the  train 
under  his  direction  ;  as  to  them  and  the  train,  he  stands  in  the  place 
of  and  represents  the  corporation."  And  it  quotes  from  AYharton's 
Law  of  Negligence,  sec.  232a:  "The  true  view  is  that,  as  corpora- 


SECT.  II.]       BALTIMORE    AND    OHIO    RAILROAD    CO.    V.    BAUGH.  875 

tioiis  can  act  only  through  superintending  officers,  the  negligences  of 
those  officers,  with  respect  to  other  servants,  are  the  negligences  of  the 
corporation."  And  also  from  Malone  v.  Hathaway,  64  N.  Y.  5,  12: 
"  Corporations  necessarily  acting  by  and  through  agents,  those  having 
the  superintendence  of  various  departments,  with  delegated  authority 
to  employ  and  discharge  laborers  and  employees,  provide  materials 
and  machinery  for  tlie  service  of  the  cori)oration,  and  generally  direct 
and  control  under  general  powers  and  instructions  from  the  directors, 
may  well  be  regarded  as  the  representatives  of  the  corporation,  charged 
with  the  performance  of  its  duty,  exercising  the  discretion  ordinarily 
exercised  by  principals,  and,  within  the  limits  of  the  delegated  author- 
ity, the  acting  principal." 

The  court,  therefore,  did  not  hold  that  it  was  universally  true  that, 
when  one  servant  has  control  over  another,  the}-  cease  to  be  fellow- 
servants  within  the  rule  of  the  master's  exemption  from  liability,  but 
did  hold  that  an  instruction  couched  in  such  general  language  was  not 
erroneous  when  applied  to  the  case  of  a  conductor  having  exclusive 
control  of  a  train  in  relation  to  other  employees  of  the  com[)any  acting 
under  him  on  the  same  train.  The  conductor  was,  in  the  language  of 
the  opinion,  "clothed  with  the  control  and  management  of  a  distinct 
department;"  he  was  "a  superintending  officer,"  as  described  by 
Mr.  Wharton;  he  had  "the  superintendence  of  a  department,"  as 
suggested  by  the  New  York  Court  of  Appeals. 

And  this  rule  is  one  frequentlj-  recognized.  Indeed,  where  the  mas- 
ter is  a  corporation,  there  can  be  no  negligence  on  the  part  of  the 
master,  except  it  also  be  that  of  some  agent  or  servant,  for  a  corpora- 
tion only  acts  through  agents.  The  directors  are  the  managing  agents ; 
their  negligence  must  be  adjudged  the  negligence  of  the  corporation, 
although  they  are  simpU'  agents.  So  when  tliey  place  the  entire  man- 
agement of  the  corporation  in  the  hands  of  a  general  superintendent, 
such  general  superintendent,  though  himself  onl}'  an  agent,  is  almost 
universally  recognized  as  the  representative  of  the  corporation,  the 
master,  and  his  negligence  as  that  of  the  master.  And  it  is  onl}' 
carrying  the  same  principle  a  little  further  and  with  reasonable  appli- 
cation, when  it  is  held  that,  if  the  business  of  the  master  and  employer 
becomes  so  vast  and  diversified  that  it  naturally  separates  itself  into 
departments  of  service,  the  individuals  placed  In'  him  in  charge  of 
those  separate  branches  and  departments  of  service,  and  given  entire 
and  absolute  control  therein,  are  properlj-  to  be  considered,  with  re- 
spect to  employees  under  them,  vice-principals,  representatives  of  the 
master,  as  fully  and  as  completely  as  if  the  entire  business  of  the  mas- 
ter was  by  him  placed  under  charge  of  one  superintendent.  It  was 
this  proposition  which  the  court  applied  in  the  Ross  case,  holding  that 
the  conductor  of  a  train  has  the  control  and  management  of  a  distinct 
department.  But  this  rule  can  onlj'  be  fairly  applied  when  the  different 
branches  or  departments  of  service  are  in  and  of  themselves  separate 
and  distinct.     Thus,  between  the  law  department  of  a  railway  corpo- 


876  BALTIMORE   AND    OHIO    RAILKOAD    CO.    V.    BAUGH.       [CHAP.  VI. 

ration  and  the  operating  department  there  is  a  natural  and  distinct 
separation,  —  one  which  makes  the  two  departments  like  two  independ- 
ent kinds  of  business,  in  which  the  one  employer  and  master  is  engaged. 
So,  oftentimes  there  is  in  the  affairs  of  such  corporation  what  may  be 
called  a  manufacturing  or  repair  department,  and  another  strictly  ope- 
rating department ;  these  two  departments  are,  in  their  relations  to 
each  other,  as  distinct  and  separate  as  though  the  work  of  each  was 
carried  on  by  a  separate  corporation.  And  from  this  natural  sei)ara- 
tion  flows  the  rule  that  he  who  is  placed  in  charge  of  such  separate 
branch  of  the  service,  who  alone  superintends  and  has  the  control  of 
it,  is  as  to  it  in  the  place  of  the  master.  But  this  is  a  very  different 
proposition  from  that  which  affirms  that  each  separate  piece  of  work  in 
one  of  these  branches  of  service  is  a  distinct  department,  and  gives  to 
the  individual  having  control  of  that  piece  of  work  the  position  of 
vice-principal  or  representative  of  the  master.  Even  the  conclusion 
announced  in  the  Ross  case  was  not  reached  b}-  a  unanimous  court,  — 
four  of  its  members  being  of  opinion  that  it  was  carrying  the  thought 
of  a  distinct  department  too  far  to  hold  it  applicable  to  the  management 
of  a  single  train. 

The  truth  is,  the  various  employees  of  one  of  these  large  corporations 
are  not  graded  like  steps  in  a  staircase,  —  those  on  each  step  being  as 
to  those  on  the  step  below  in  the  relation  of  masters,  and  not  of  fellow- 
servants,  and  only  those  on  the  same  steps  fellow-servants,  because  not 
subject  to  any  control  b}'  one  over  the  other.  Prima  facie,  all  who 
enter  into  the  employ  of  a  single  master  are  engaged  in  a  common 
service,  and  are  fellow-servants,  and  some  other  line  of  demarcation 
than  that  of  control  must  exist  to  destro}'  the  relation  of  fellow-servants. 
All  enter  into  the  service  of  the  same  master  to  further  his  interests  in 
the  one  enterprise  ;  each  knows  when  entering  into  that  service  that 
there  is  some  risk  of  injury  through  the  negligence  of  other  employees, 
and  that  risk,  which  he  knows  exists,  he  assumes  in  entering  into  the 
employment.  Thus,  in  the  opinion  in  the  Ross  case,  p.  382,  it  was 
said  :  "•  Having  been  engaged  for  the  performance  of  specified  services, 
he  takes  upon  himself  the  ordinary  risks  incident  thereto.  As  a  con- 
sequence, if  he  suffers  by  exposure  to  them,  he  cannot  recover  com- 
pensation from  his  employer.  The  obvious  reason  for  this  exemption 
is  that  he  has,  or,  in  law,  is  supposed  to  have,  them  in  contemplation 
when  he  engages  in  the  service,  and  that  his  compensation  is  arranged 
accordingly.  He  cannot,  in  reason,  complain  if  he  suffers  from  a  risk 
which  he  has  voluntarily  assumed,  and  for  the  assumption  of  which  he 
is  paid." 

But  the  danger  from  the  negligence  of  one  specially-  in  charge  of  the 
particular  work  is  as  obvious  and  as  great  as  from  that  of  those  who 
are  simply  co-workers  with  him  in  it.  Each  is  equallj-  with  the  other 
an  ordinary  risk  of  the  employment.  If  he  is  paid  for  the  one,  he  is 
paid  for  the  other  ;  if  he  assumes  the  one.  he  assumes  the  other.  There- 
fore, so  far  as  the  matter  of  the  master's  exemption  from  liability  de- 


SECT.  II.]       BALTIMORE    AND    OHIO   RAILROAD   CO.   V.    BAUGH.  877 

pends  upon  whether  the  negligence  is  one  of  the  ordinary  risks  of  the 
employment,  and,  thus  assumed  b3'  the  employee,  it  includes  all  co- 
workers to  the  same  end,  whether  in  control  or  not.  But  if  the  fact 
that  the  risk  is  or  is  not  obvious  does  not  control,  what  test  or  rule  is 
there  which  determines  ?  Rightfully  this  :  there  must  be  some  personal 
wrong  on  the  part  of  the  master,  some  breach  of  positive  duty  on  his 
part.  If  he  discharges  all  that  may  be  called  positive  duty,  and  is 
himself  guilty  of  no  neglect,  it  would  seem  as  though  he  was  absolved 
from  all  responsibility,  and  that  the  party  who  caused  the  injury  should 
be  himself  alone  responsible.  It  ma}'  be  said  that  this  is  only  passing 
from  one  difficulty  to  another,  as  it  leaves  still  to  be  settled  what  is 
positive  dut}'  and  what  is  personal  neglect ;  and  yet,  if  we  analyze 
these  matters  a  little,  there  will  appear  less  difficult}'  in  the  question. 
Obviously,  a  breach  of  positive  duty  is  personal  neglect ;  and  the  ques- 
tion in  an}'  given  case  is,  therefore,  what  is  the  positive  dutv  of  the 
master?  He  certainly  owes  the  duty  of  taking  fair  and  reasonable 
precautions  to  surround  his  employee  with  fit  and  careful  co-workers, 
and  the  employee  has  a  right  to  rely  upon  his  discharge  of  this  duty. 
If  the  master  is  careless  in  the  matter  of  employing  a  servant,  it  is  his 
personal  neglect;  and  if  without  proper  care  in  inquiring  as  to  his 
competency  he  does  employ  an  incompetent  person,  the  fact  that  he 
has  an  incompetent,  and  therefore  an  improper  employee,  is  a  matter 
of  his  personal  wrong,  and  owing  to  his  personal  neglect.  And  if  the 
negligence  of  this  incompetent  servant  works  injurj-  to  a  co-servant,  is 
it  not  obvious  that  the  master's  omission  of  duty  enters  directly  and 
properly  into  the  question  of  responsibility  ?  If,  on  the  other  hand,  the 
master  has  taken  all  reasonable  precautions  to  inquire  into  the  compe- 
tency of  one  proposing  to  enter  into  his  service,  and  as  the  result  of  such 
reasonable  inquiry  is  satisfied  that  the  employee  is  fit  and  competent, 
can  it  be  said  that''  the  master  has  neglected  an^'thing,  that  he  has 
omitted  any  personal  dut}',  —  and  this,  notwithstanding  that  after  the 
servant  has  been  employed  it  shall  be  disclosed  that  he  was  incompe- 
tent and  unfit?  If  he  has  done  all  that  reasonable  care  requires  to 
inquire  into  the  competency  of  his  servant,  is  any  neglect  imputable  to 
him?  No  human  inquiry,  no  possible  precaution,  is  sufficient  to  abso- 
lutely determine  in  advance  whether  a  party  under  certain  exigencies 
will  or  will  not  do  a  negligent  act.  So  it  is  not  possible  for  the  master, 
take  whatsoever  pains  he  may,  to  secure  employees  who  will  never  be 
guilty  of  an}'  negligence.  Indeed,  is  there  any  man  who  does  not  some- 
times do  a  negligent  act?  Neither  is  it  possible  for  the  master,  with 
any  ordinary  and  reasonable  care,  always  to  secure  competent  and  fit 
servants.  He  may  be  mistaken,  notwithstanding  the  reasonable  pre- 
cautions he  has  taken.  Therefore,  that  a  servant  proves  to  be  unfit 
and  incompetent,  or  that  in  any  given  exigency  he  is  guilty  of  a  negli- 
gent act  resulting  in  injury  to  a  fellow-servant,  does  not  of  itself  prove 
any  omission  of  care  on  the  part  of  the  master  in  his  employment ;  and 
it  is  only  when  there  is  such  omission  of  care  that  the  master  can  be 


878  BALTIMORE    AND    OHIO   RAILROAD    CO.    V.    BAUGH.       [CIIAP.  VL 

said  to  be  guilty  of  personal  wrong  in  placing  or  continuing  such  ser- 
vant in  his  employ,  or  has  done  or  omitted  aught  justifying  the  placing 
upon  him  responsibility  for  such  employee's  negligence. 

Again,  a  master  employing  a  servant  impliedly  engages  with  him 
that  the  place  in  which  he  is  to  work,  and  the  tools  or  machinery  with 
which  he  is  to  work,  or  by  which  he  is  to  be  surrounded,  shall  be  rea- 
sonably safe.  It  is  the  master  who  is  to  provide  the  place  and  the 
tools  and  the  machinery  ;  and  when  he  employs  one  to  enter  into  his 
service  he  impliedly  says  to  him  that  there  is  no  other  danger  in  the 
place  —  the  tools  and  the  machinery  —  than  such  as  is  obvious  and 
necessarj'.  Of  course,  some  places  of  work  and  some  kinds  of  ma- 
chinery are  more  dangerous  than  others,  but  that  is  something  which 
inheres  in  the  thing  itself,  which  is  a  matter  of  necessity,  and  cannot 
be  obviated.  But  within  such  limits  the  master,  who  provides  the 
place,  the  tools,  and  the  machinery',  owes  a  positive  duty  to  his  em- 
ployee in  respect  thereto.  That  positive  duty  does  not  go  to  the  extent 
of  a  guarantee  of  safety*,  but  it  does  require  that  reasonable  precautions 
be  taken  to  secure  safety,  and  it  matters  not  to  the  employee  by  whom 
that  safety  is  secured,  or  the  reasonable  precautions  therefor  taken. 
He  has  a  right  to  look  to  the  master  for  the  dischai-ge  of  that  duty, 
and  if  the  master,  instead  of  discharging  it  himself,  sees  fit  to  have  it 
attended  to  by  others,  that  does  not  change  the  measure  of  obligation 
to  the  employee,  or  the  hitter's  right  to  insist  that  reasonable  precau- 
tion shall  be  taken  to  secure  safety  in  these  respects.  Therefore  it  will 
be  seen  that  the  question  turns  rather  on  the  character  of  the  act  than 
on  the  relations  of  the  employees  to  each  other.  If  the  act  is  one  done 
in  the  discharge  of  some  positive  duty  of  the  master  to  the  servant, 
then  neghgence  in  the  act  is  the  negligence  of  the  master ;  but  if  it  be 
not  one  in  the  discharge  of  such  positive  dut^',  then  there  should  be 
some  personal  wrong  on  the  part  of  the  employer  before  he  is  held 
liable  therefor.  But,  it  may  be  asked,  is  not  the  duty  of  seeing  that 
competent  and  fit  persons  are  in  charge  of  any  particular  woik  as  pos- 
itive as  that  of  providing  safe  places  and  machinery?  Undoubtedly  it 
is,  and  requires  the  same  vigilance  in  its  discharge.  But  the  latter 
duty  is  discharged  when  reasonable  care  has  been  taken  in  providing 
such  safe  place  and  machinery,  and  so  the  former  is  as  full}'  discharged 
when  reasonable  precautions  have  been  taken  to  place  fit  and  compe- 
tent persons  in  charge.  Neither  duty  carries  with  it  an  absolute  guar- 
anty.    Each  is  satisfied  with  reasonable  effort  and  precaution.^  .  .  . 

It  may  safely  be  said  that  this  court  has  never  recognized  the  propo- 
sition that  the  mere  control  of  one  servant  over  another  in  doing  a 
particular  piece  of  work  destroys  the  relation  of  fellow-servants,  and 
puts  an  end  to  the  master's  liability.     On  the  contrary,  all  the  cases 

1  Here  were  cited  Atchison,  Topeka,  &c.  Railroad  v.  Moore,  29  Kans.  632,  644 ; 
Hough  V.  Railway  Co.,  100  U.  S.  213 ;  Northern  Pacific  Railroad  v.  Herbert,  116  U.  S. 
642  ;  Railroad  Co.  v.  Fort,  17  Wall.  553  ;  Randall  v.  B.  &  O.  Railroad,  109  U.  S;  478; 
and  Quebec  Steamship  Co.  v.  Merchant,  133  U.  S.  375.  —  Ed. 


SECT.  II.]       BALTIMORE   AND    OHIO   RAILROAD    CO.    V.    BAUGH.  879 

proceed  on  the  ground  of  some  breach  of  positive  duty  resting  upon 
the  master,  or  upon  the  idea  of  superintendence  or  conti'ol  of  a  depart- 
ment. It  has  ever  been  affirmed  that  the  employee  assumes  the  ordi- 
nary risks  incident  to  the  service  ;  and,  as  we  have  seen,  it  is  as 
obvious  that  there  is  risk  from  the  negligence  of  one  in  immediate  con- 
trol as  from  one  simply  a  co-worker.  That  the  running  of  an  engine 
b}'  itself  is  not  a  separate  branch  of  service  seems  perfectly-  clear.  The 
fact  is,  all  the  locomotive  engines  of  a  railroad  company  are  in  the  one 
department,  —  the  operating  department ;  and  those  employed  in  run- 
ning them,  whether  as  engineers  or  firemen,  are  engaged  in  a  common 
employment,  and  are  fellow-servants.  It  might  as  well  be  said  that, 
where  a  liveryman  has  a  dozen  carriages,  the  driver  of  each  has  charge 
of  a  separate  branch  or  department  of  service,  and  that  if  one  drives 
his  carriage  negligently  against  another  employee,  the  master  is  exempt 
from  liability. 

It  may  further  be  noticed  that  in  this  particular  case  the  injur}'  was 
not  in  consequence  of  the  fireman's  obeying  any  orders  of  his  superior 
officer.  It  did  not  result  from  the  mere  matter  of  control.  It  was 
through  negligence  on  the  part  of  the  engineer  in  running  his  engine  ; 
and  the  injury  would  have  been  the  same  if  the  fireman  had  had  noth- 
ing to  do  on  the  locomotive,  and  had  not  been  under  the  engineer's 
control.  In  otlier  words,  an  employee  carelessK  manages  an  engine, 
and  another  employee,  who  happens  to  be  near  enough,  is  injured  by 
such  carelessness.  It  would  seem,  therefore,  to  be  the  ordinar}'  case 
of  the  injury  of  one  employee  through  the  negligence  of  another. 

Again,  this  was  not  simpl}'  one  of  the  risks  assumed  b}'  the  emplo3'ee 
when  entering  into  the  employment,  and  yet  not  at  the  moment  fully 
perceived  and  understood.  On  the  contrar}',  the  peril  was  known  and 
voluntarily  assumed.  The  plaintiff  admits  in  his  testimony  that  he 
knew  the}'  had  no  right  to  the  track  without  orders,  and  that  there  was 
a  local  train  on  the  road  somewhere  between  them  and  Bellaire ;  and 
yet,  with  this  knowledge,  and  without  protest,  he  voluntarily  rode  on 
the  engine  with  the  engineer.  Hammond  r.  Railway  Compan}-,  83 
Micliigan,  334  :  Railway  Company  v.  Leach,  41  Ohio  St.  388;  Wes- 
cott  V.  Railroad  Co.,  153  Mass.  460. 

In  the  first  of  these  cases  the  party  injured  was  a  section  hand,  who 
was  injured  while  riding  on  a  hand-car,  in  company  with  a  fellow- 
laborer  and  the  section  foreman  ;  and  the  negligence  claimed  was  in 
propelling  the  hand-car  along  a  curved  portion  of  the  track,  with 
knowledge  of  an  approaching  train,  and  without  sending  a  lookout 
ahead  to  give  warning.  In  respect  to  this,  Mr  Justice  Cahill,  speak- 
ing for  the  court,  says:  "But  if  this  conduct  was  negligent,  it  was 
participated  in  b}'  Hammond.  The  latter  had  been  going  up  and  down 
this  section  of  the  road  daily  for  three  months.  Whatever  hazard  there 
was  in  such  a  position  was  known  to  him,  and  he  must  be  held  to  have 
voluntaril}'  assumed  it.  .  .  .  Where,  as  in  this  case,  the  sole  act  of 
negligence  relied  on  is  participated  in,  and  voluntarily  consented  to  by 


880  BALTIMORE    AND    OHIO    RAILROAD    CO.    V.    BAUGH.       [CHAP.  VI 

the  person  injured,  with  full  knowledge  of  the  peril,  the  question  of  the 
master's  liability  does  not  arise." 

So,  in  this  ease,  Baugh,  equally  with  the  engineer,  knew  the  peril, 
and  with  this  knowledge  voluntarily  rode  with  the  engineer  on  the 
engine.     He  assumed  the  risk. 

For  these  reasons  we  think  that  the  judgment  of  the  Circuit  Court 
was  erroneous,  and  it  must  be 

Heversed  and  the  case  remanded  for  a  neto  trial. 

Mr.  Justice  Field  dissenting.^ 

Wx.  Chief  Justice  Fuller  dissenting. 

I  dissent  because,  in  my  judgment,  this  case  comes  within  the  rule 
laid  down  in  Chicago,  Milwaukee,  &c.  Railway-  v.  Ross,  112  U.  S.  377, 
and  the  decision  unreasonabl}'  enlarges  the  exemption  of  the  master 
from  liability  for  injury  to  one  of  his  servants  bj-  the  fault  of  another.'^ 

1  Tliis  opinion  was  to  the  effect  that  the  law  of  Ohio  ought  to  govern  the  case,  and 
that  the  opinion  of  the  majority  of  the  court  limited  and  denied  the  doctrine  of  the 
Ross  case.  —  Ed. 

^  In  Great  Britain  and  in  some  of  the  United  States  the  rules  as  to  fellow-servants 
and  as  to  appliances  are  now  largely  governed  by  statutes  intended  to  increase  the 
responsibility  of  employers. 

In  some  of  tlie  States  the  statutes  are  applicable  to  railways  only.  See  Code 
of  Georgia  (1882),  §§  2083,  3036  (based  on  a  statute  passed  in  18.56,  Acts  of  1855-56, 
p.  155) ;  Iowa  Code  (1873),  §  1307  (based  on  a  statute  passed  in  1862,  9  G.  A.  c.  169, 
§  7,  as  amended  by  later  statutes). 

In  other  States  the  statutes,  following  closely  the  British  Employers  Liability  Act, 
1880  (43  &  44  Vict  c.  42),  are  applicable  to  almost  all  employers.  See  Code  of 
Alabama  (1886),  §  2590  (based  on  a  statute  passed  in  1885,  Acts  of  1884-5,  p.  115) ; 
Massachusetts  Statutes  of  1887,  c.  270. 

The  principal  provisions  of  the  British  Employers  Liability  Act,  1880,  are:  — 

"  1.    Where  .  .  .  personal  injury  is  caused  to  a  workman 

"  (1)  By  reason  of  any  defect  in  the  condition  of  the  ways,  works,  machinery,  or 
plant  connected  with  or  used  in  the  business  of  the  employer ;  or 

"  (2)  By  reason  of  the  negligence  of  any  person  in  the  service  of  the  employer 
who  has  any  superintendence  intrusted  to  him  whilst  in  the  exercise  of  such  superin- 
tendence ;  or 

"  (3)  By  reason  of  the  negligence  of  any  person  in  the  service  of  the  employer  to 
whose  orders  or  directions  the  workman  at  the  time  of  the  injury  was  bound  to  con- 
form, and  did  conform,  where  such  injury  resulted  from  his  having  so  conformed ;  or 

"  (4)  By  reason  of  the  act  or  omission  of  any  person  in  the  service  of  the  emploj-er 
done  or  made  in  obedience  to  the  rules  or  by-laws  of  the  employer,  or  in  obedience  to 
particular  instructions  given  by  any  person  delegated  with  the  authority  of  the  em- 
ployer in  that  behalf  ;  or 

"  (5)  By  reason  of  the  negligence  of  any  person  in  the  service  of  the  employer 
who  has  the  charge  or  control  of  any  signal,  points,  locomotive  engine,  or  train  upon  a 
railway,  — 

"  The  workman,  or  in  case  the  injury  results  in  death,  the  legal  personal  repre- 
sentatives of  the  workman,  and  any  persons  entitled  in  case  of  death,  shall  have  the 
same  right  of  compensation  and  remedies  against  the  employer  as  if  the  workman  had 
not  been  a  workman  or  not  in  the  service  of  the  employer,  nor  engaged  in  his  work. 

"  2.   A  workman  shall  not  be  entitled  under  this  Act  .  •  . 

"  (1)  Under  sub-section  1  of  section  1,  unless  the  defect  .  .  .  arose  from,  or  had  not 
been  discovered  or  remedied  o^nng  to  the  negligence  of  the  employer,  or  of  some  per- 
son in  the  service  of  the  employer,  and  intrusted  by  him  with  the  duty  of  seeing  that 
the  ways,  works,  machinery,  or  plant  were  in  proper  condition. 


SECT.  II.]       BALTIMORE    AND    OHIO    RAILROAD    CO.    V.    BAUGH.  881 

"  (2)  Under  sub-section  4  of  section  1,  unless  the  injury  resulted  from  some  impro- 
priety or  defect  in  the  rules,  by-laws,  or  instructions  .  .  . 

"  (3)  In  any  case  where  the  workman  knew  of  the  defect  or  negligence  which 
caused  the  injury,  and  failed  within  a  reasonable  time  to  give  .  .  .  information  thereof 
to  the  employer  or  some  person  superior  to  himself  in  the  service  of  the  employer, 
unless  he  was  aware  that  the  employer  or  such  superior  already  knew.  .  .  . 

"  8.  .  .  .  '  Person  who  has  superintendence  intrusted  to  him '  means  a  person  whose 
sole  or  principal  duty  is  that  of  superintendence,  and  who  is  not  ordinarily  engaged 
in  manual  labor.  .  .  .  '  Employer '  includes  a  body  of  persons  corporate  or  unincor- 
porate.  .  .  .  '  Workman'  means  a  railway  servant,  and  any  person  to  whom  the  Em- 
ployers and  Workmen  Act,  1875  [38  &  39  Vict.  c.  90],  applies." 

Cases  on  the  interpretation  of  the  statutes,  and  particularly  on  the  interpretation  of 
"ways,  works,  machinery,  or  plant,"  are  :  Howe  v.  Finch,  17  Q.  B.  D.  187  (1885); 
Yarmouth  v.  France,  19  Q.  B.  U.  647  (1887) ;  Ashley  v.  Hart,  147  Mass.  573  (1888); 
Brannigan  v.  Robinson,  [1892]  I  Q.  B.  344  ;  Eugel  v.  New  York,  Providence  &  Boston 
Railroad  Co.,  160  Mass.  260  (1893);  Bowen  v.  Connecticut  River  Railroad  Co.,  162 
Mass.  312  (1894). 

The  liability  of  the  employer  is  determined  not  by  tlie  law  of  the  place  where  the 
contract  of  service  is  made,  but  by  the  law  of  the  place  where  tlie  injury  is  suffered. 
Alabama  Great  Southern  Railroad  Co.  v.  Carroll,  97  Ala.  126  (1892). 

By  judicial  construction  the  statutes  leave  open  to  the  employer  the  defence  of  con- 
tributory  negligence,  and  also,  at  least  in  clear  cases,  the  defence  that  the  servant  has 
voluntarily  assumed  the  very  risk  incurred.  Thomas  r.  Quartermaine,  18  Q.  B.  D. 
685  (C.  A.  1887)  ;  Yarmouth  v.  France,  19  Q.  B.  D.  647  (1887)  ;  Mellor  v.  Merchants 
Manufacturing  Co.,  150  Mass.  362  (1890)  ;  Lothrop  v.  Fitchburg  Railroad  Co,  150 
Mass.  420  (1890) ;  Cassady  v.  Boston  &  Albany  Railroad  Co.,  164  Mass.  168  (1895). 
See  Smith  v.  Baker,  [1891]  A.  C.  325. 

It  is  disputed  whether  a  servant  is  bound  by  a  special  contract  to  the  effect  that  he 
will  not  bring  an  action  under  the  statutes  for  an  injury  not  yet  suffered.  To  the 
effect  that  a  servant  is  bound  by  such  a  contract  are :  Western  &  Atlantic  Railroad 
Co.  V.  Bishop,  50  Ga.  465  (1873) ;  Griffiths  v.  Earl  of  Dudley,  9  Q.  B.  D.  357  (1882) 
Contra  are:  Kansas  Pacific  Ry.  Co.  v.  Peavey,  29  Kan.  169  (1883);  Railway  Co.  v. 
Spangler,  44  Ohio  St.  471  (1886).  In  some  States,  statutes  expressly  provide  that 
such  contracts  are  void.  See  Public  Statutes  of  Massachusetts  (1882),  c.  74,  §  3  (from 
Statutes  of  1877,  c.  101,  §  1). 

The  statutes  do  not  take  away  the  right  of  action,  if  any,  which  the  servant  would 
have  in  case  there  were  no  statute.     Ryalls  v.  Mechanics'  Mills,  150  Mass.  190  (1889). 

As  to  the  policy  underlying  the  statutes,  see  the  Reports  from  the  Select  Com- 
mittee on  Employers'  Liability  (Parliamentary  Blue  Books,  1876  and  1877) ;  and  Pol- 
lock's Essays  in  Jurisprudence,  114.  As  to  the  history  of  the  statutes,  see  an 
article  by  M.  C.  Hobbs,  2  Harv.  Law  Rev.  212.  —  Ed. 


882  WILKINSON   V.   COVERDALE.  [CHAP.  VIL 


CHAPTER   VII. 
THE  AGENT'S  DUTIES   TO  THE  PRINCIPAL. 


SECTION   I. 

Obedience,  Diligence,  and  Skill. 

WILKINSON  V.  COVERDALE. 

Nisi  Pkius.     1793. 

[1  Esp.  75.] 

This  was  a  special  action  on  the  case  against  the  defendant  for 
negligence. 

The  declaration  stated,  That  the  defendant  had  undertaken  to  pro- 
cure an  insurance  against  fire  for  certain  premises  belonging  to  the 
plaintiff,  and  on  his  account,  which  insurance  he  had  efljected,  but  that 
he  had  conducted  himself  so  negligentl}-  in  the  perfecting  such  insur- 
ance that,  the  premises  having  been  burned  by  fire,  that  the  plaintiff 
had  not  been  able  to  recover  any  part  thereof  against  the  fire  office, 
whereby  he  had  suffered  a  total  loss. 

The  case  as  staled  on  the  part  of  the  plaintiff  was,  that  he  had  pur- 
chased the  premises  in  question  from  the  defendant  in  the  month  of 
August,  1792  ;  the  defendant  at  that  time  had  a  subsisting  policy  from 
the  Phoenix  Fire  Office  from  December,  1791,  to  December,  1792  ;  that 
the  defendant  had  undertaken  to  get  this  policy  renewed  on  account 
of  the  plaintiff,  and  in  fact  liad  renewed  it  ond  charged  a  sum  of  £16  as 
the  premium  paid,  but  that  it  being  necessary  where  a  partj'  who  has  an 
insurance  standing  in  the  ofl3ce,  assigns  or  mortgages  his  interest  in  the 
premises  insured,  that  an  indorsement  should  be  made  on  the  policy 
testifying  such  matter,  and  allowed  at  the  Office  b}'  some  of  the  acting 
members  of  the  compan}' ;  that  the  defendant  had  neglected  to  have  this 
assignment  and  allowance  made  at  the  ofhce,  in  consequence  of  which 
the  plaintiff  was  precluded  from  having  any  remedy  on  the  polic}' 
against  the  office  and  had  sustained  a  total  loss. 

It  was  admitted  on  the  part  of  the  plaintiff,  that  tliere  was  no  con- 
sideration whatever  moving  from  him  to  the  defendant  for  this  under- 
taking to  get  the  policy  on  his  account,  but  that  the  defendant  had 
undertaken  it  gratuitouslj'  on  the  plaintifTs  account. 


SECT.  I.]  THORNE    V.    DEAS.  883 

On  this  circumstance  being  admitted,  Lord  Kenton  expressed  a 
doubt,  whether  any  action  could  be  maintained  on  such  an  undertaking. 

Erskine  for  the  plaintiff  cited  a  manuscript  note  of  a  case  decided  at 
Nisi  Prius  before  Mr.  Justice  Bui.ler,  of  Wallace  v.  Tellfair,  wherein 
that  judge  had  ruled  in  an  action  similar  in  point  of  circumstances  with 
the  present,  that  though  there  was  no  consideration  for  one  party's 
undertaking  to  procure  an  insurance  for  another,  3-et  where  a  party 
voluntarily  undertook  to  do  it,  and  proceeded  to  cai-ry  his  undertaking 
into  effect  by  getting  a  polic}-  underwritten,  but  did  it  so  negligentl}-  or 
unskilfully,  that  the  party  could  derive  no  benefit  from  it,  that  in 
that  case  he  should  be  liable  to  an  action  ;  he  then  contended,  that  the 
defendant  in  the  present  case  had  brought  himself  within  the  rule  so 
laid  down  by  the  learned  judge,  he  having  effected  the  polic3-,  but  by 
his  negligence  in  not  procuring  the  allowance  at  the  Fire  Office  on  the 
assignment  of  the  premises,  that  the  plaintiff  had  lost  all  benefit  from  it. 

Lord  Kenyon  acquiesced  in  the  distinction,  and  suffered  the  cause  to 
proceed. 

The  plaintiff  failed  in  proving  any  promise  of  the  defendant  to  pro- 
cure the  insurance  as  stated  in  his  case,  and  was  nonsuited. 

Ei'shine  and  Gibbs  for  the  plaintiff. 

Law^  Chiimbre,  and  Park  for  the  defendant. 


THORNE    AND    ANOTHER   V.    DEAS. 

Supreme  Court  of  New  York.     1809. 

[4  Johns.  84.] 

This  was  an  action  on  the  case  for  a  non-feasance,  in  not  causing 
insurance  to  be  made  on  a  certain  vessel,  called  the  Sea  Nymph,  on  a 
voyage  from  New  York  to  Camden,  in  North  Carolina. 

The  plaintiflTs  were  co-partners  in  trade,  and  joint  owners  of  one 
moiet}"  of  a  brig  called  the  Sea  Nymph,  and  the  defendant  was  sole 
owner  of  the  other  moiet}'  of  the  same  vessel.  The  brig  sailed  in 
ballast,  the  1st  December,  1804,  on  a  vo3'age  to  Camden,  in  North 
Carolina,  with  William  Thorne,  one  of  the  plaintiffs,  on  board,  and  was 
to  proceed  from  that  place  to  Europe  or  the  West  Indies.  The  plain- 
tiffs and  defendant  were  interested  in  the  voyage,  in  proportion  to 
their  respective  interests  in  the  vessel.  On  the  (\ixy  the  vessel  sailed,  a 
conversation  took  place  between  William  Thorne,  one  of  the  plaintiffs, 
and  the  defendant,  relative  to  the  insurance  of  the  vessel,  in  which  W. 
Thorne  requested  the  defendant  that  insurance  might  be  made :  to 
which  the  defendant  replied,  "  that  he  (Thorne)  might  make  himself 
perfectly  easy  on  the  subject,  for  that  the  same  should  be  done." 
About  ten  days  after  the  departure  of  the  vessel  on  her  vojage,  the 


884  THORNE   V.    DEAS.  [CHAP.  VIL 

defendant  said  to  Daniel  Thorne,  one  of  the  plaintiffs,  '■*■  Well,  we  have 
saved  the  insurance  on  the  brig."  D.  Thorne  asked,  "How  so?  or 
whether  the  defendant  had  heard  of  her  arrival?"  To  which  the 
defendant  answered,  "  No  ;  but  that,  from  the  winds,  he  presumed  that 
slie  had  arrived,  and  that  he  had  not  yet  effected  an}'  insurance."  On 
this  D.  Thorne  expressed  his  surprise,  and  observed,  "  that  he  supposed 
that  the  insurance  had  been  effected  immediately,  by  the  defendant, 
according  to  his  promise,  otherwise,  he  would  have  had  it  done  him- 
self; and  that,  if  the  defendant  would  not  have  the  insurance  immedi- 
ately made,  he  would  have  it  effected."  The  defendant  replied,  that 
"  He  (D.  Thorne)  might  make  himself  eas}-,  for  he  would  that  day  apply 
to  the  insurance  offices,  and  have  it  done." 

The  vessel  was  wrecked  on  the  21st  December,  on  the  coast  of  North 
Carolina.  No  insurance  had  been  effected.  No  abandonment  was 
made  to  the  defendant  by  the  plaintiffs. 

The  defendant  moved  for  a  non-suit,  on  the  ground  that  the  promise 
flfas  without  consideration  and  void  ;  and  that,  if  the  promise  was  bind- 
ing, the  plaintiffs  could  not  recover,  without  a  previous  abandonment  to 
the  defendant.     These  points  were  reserved  by  the  judge. 

A  verdict  was  taken  for  the  plaintiffs,  for  one-half  of  the  cost  of  the 
vessel,  with  interest,  subject  to  the  opinion  of  the  court  on  the  points 
reserved. 

J]  RadcUff,  for  the  plaintiffs. 

T.  A.  Emmet  and  Baldicin,  contra. 

Kent,  C.  J.,  delivered  the  opinion  of  the  court.  The  chief  objection 
raised  to  the  right  of  recovery  in  this  case,  is  the  want  of  a  considera- 
tion for  the  promise.  The  offer,  on  the  part  of  the  defendant,  to  cause 
insurance  to  be  effected,  was  perfectly  voluntary.  Will,  then,  an 
action  lie,  when  one  party  intrusts  the  performance  of  a  business  to 
another,  who  undertakes  to  do  it  gratuitously,  and  wholly  omits  to  do 
it?  If  the  party  who  makes  this  engagement,  enters  upon  the  execu- 
tion of  the  business,  and  does  it  amiss,  through  the  want  of  due  care, 
by  which  damage  ensues  to  the  other  party,  an  action  will  lie  for  this 
misfeasance.  But  the  defendant  never  entered  upon  the  execution  of 
his  undertaking,  and  the  action  is  brought  for  the  non-feasance.  Sir 
William  Jones,  in  his  "  Essay  on  the  Law  of  Bailments,"  considers  this 
species  of  undertaking  to  be  as  extensively  binding  in  the  English  law, 
as  the  contract  of  mandatuyn^  in  the  Roman  law ;  and  that  an  action 
will  lie  for  damage  occasioned  by  the  non-performance  of  a  promise  to 
become  a  mandatary,  though  the  promise  be  purely  gratuitous.  This 
treatise  stands  high  with  the  profession,  as  a  learned  and  classical  per- 
formance, and  I  regret,  that  on  this  point,  I  find  so  much  reason  to 
question  its  accuracy.  I  have  carefully  examined  all  the  authorities  to 
which  he  refers.  He  has  not  produced  a  single  adjudged  case  ;  but 
only  some  dicta  (and  those  equivocal)  from  the  Year  Books,  in  sup- 
port of  his  opinion  ;  and  was  it  not  for  the  weight  which  the  authority 
of  so  respectable  a  name  imposes,  I  should  have  supposed  the  question 
too  well  settled  to  admit  of  an  argument. 


SECT.  I.]  WHITEHEAD   V.   GKEETHAM.  885 

A  short  review  of  the  leading  cases  will  show,  that  by  the  common 
law,  a  mandatary,  or  one  who  undertakes  to  do  an  act  for  another, 
without  reward,  is  not  answerable  for  omitting  to  do  the  act,  and  is 
only  responsible  when  he  attempts  to  do  it,  and  does  it  amiss.  In 
other  words,  he  is  responsible  for  a  misfeasance,  but  not  for  a  non- 
feasance, even  though  special  damages  are  averred.^  .  ,  . 

Judgment  for  the  defendant. 


WHITEHEAD  v.  GREETHAM. 
Exchequer  Chamber.     1825. 

[2  Bing.  464.] 

Error  ftom  K.  B.  on  a  verdict  in  an  action  of  assumpsit  against  the 
defendant  below,  for  failure  in  an  undertaking  to  make  a  secure  invest- 
ment of  certain  money  deposited  in  his  hands  b}-  the  plaintiff  below  for 
that  purpose. 

The  ground  of  error  was,  that  a  general  verdict  had  been  given  by 
the  jury  for  the  plaintiff  below,  upon  the  first  five  counts  of  the  declara- 
tion, with  general  damages,  though  the  third  count  was  substantially 
defective  in  not  alleging  a  sufficient  consideration  for  the  promise  and 
undertaking  set  forth  in  that  count,  which  was  as  follows  :  — 

Whereas  before  the  making  of  the  promise  and  undertaking  of  the 
said  defendant  hereinafter  mentioned,  to  wit,  on,  &c.,  at,  &c.,  tlie  said 
plaintiff,  at  the  special  instance  and  request  of  the  said  defendant,  re- 
tained and  employed  the  said  defendant  to  advance  and  la}'  out  a  certain 
sum  of  mone^',  to  wit,  the  sum  of  £700  for  the  said  plaintiff,  in  the  pur- 
chase of  an  annuity,  to  be  well  and  sufficiently  secured,  he  the  said  defend- 
ant undertook,  and  then  and  there  faithfully  promised  the  said  plain tifl!", 
to  use  due  and  sufficient  care  to  advance  and  la}*  out  the  said  sum  of 
monev  in  the  purchase  of  an  annuitv,  the  payment  whereof  should  be 
well  and  sufficienth'  secured  ;  and  the  said  plaintiff  in  fact  saith,  that 
he,  confiding  in  the  said  last-mentioned  promise  and  undertaking  of  the 
said  defendant,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  delivered  to  him 
the  said  defendant  the  said  last-mentioned  sum  of  mone}',  for  the 
purpose  last  aforesaid  ;  and  although  the  said  defendant  afterwards, 
to  wit,  on,  &c.,  at,  &c.,  did  advance  and  la}'  out  the  said  sum  of  mone}' 
for  the  said  plaintiff,  in  the  purchase  of  a  certain  annuit}',  to  wit, 
the  purchase  from  the  Reverend  Samuel  Locke,  of  an  annuity  or 
annual  payment  of  £96,  during  the  life  of  the  said  Samuel  Locke,  for 
and  in  consideration  of  the  said  sum  of  £700,  the  money  of  the  said 
plaintiff,  then  and  there  advanced  and  paid  by  the  said  defendant  to  the 
Bald  Samuel  Locke ;  nevertheless  the  said  defendant,  not  regarding  his 

^  The  discussion  of  the  cases  has  been  omitted. — Ed. 


886  WHITEHEAD   V.    GKEETHAM.  [CHAP.  VII, 

said  promise  and  undertaking,  but  contriving  and  fraudulently  intending, 
craftih'  and  subtilly  to  deceive,  defraud,  and  injure  the  said  plaintiff  in 
this  behalf,  did  not  nor  would  use  due  and  sulllcient  care  to  advance 
and  lay  out  the  said  sum  of  money  in  the  purcliase  of  an  annuity,  to  be 
well  and  sufficiently'  secured,  but  wholly'  neglected  so  to  do,  and  thereby 
craftilj'  and  subtilly*  deceived  and  defrauded  the  said  plaintiff  in  this,  to 
wit,  that  the  said  defendant  then  and  there  wrongfully  and  unjustly  ad- 
vanced and  paid  the  said  sum  of  £700  to  the  said  Samuel  Locke  as 
aforesaid,  on  a  bad,  insufficient,  and  inadequate  security  ;  and  also  in 
this,  to  wit,  that  the  said  Samuel  Locke,  before  and  at  the  time  of  the 
said  advance  of  the  said  sum  of  £700  to  him  as  aforesaid,  and  from 
thence  hitherto  hath  been,  and  still  is,  in  bad  and  insolvent  circum- 
stances, and  wholl}'  unable  to  pay  the  said  annuity  or  any  part  thereof; 
and,  in  truth  and  in  fact,  b}'  reason  of  the  badness  and  insuflicienc}'  of 
the  said  security,  and  of  the  said  bad  and  insolvent  circumstances  of  the 
said  Samuel  Locke,  he,  the  said  plaintiff,  hath  been  and  is  wholly  un- 
able to  recover  or  receive  payment  or  satisfaction  of  the  said  annuity', 
and  is  likelj'  to  lose  the  same,  as  well  as  the  said  sum  of  £700,  so  ad- 
vanced and  paid  to  the  said  Samuel  Locke  as  aforesaid ;  and  therebj' 
also,  he,  the  said  plaintiff,  hath  lost  and  been  deprived  of  the  use  and 
benefit  of  divers  sums  of  money,  amounting  in  the  whole  to  a  large  sum 
of  money,  to  wit,  the  sum  of  £200  paid  bj-  the  said  plaintiff,  in  and 
about  the  effecting  and  keeping  on  foot  a  certain  policy  of  insurance 
effected  on  the  life  of  the  said  Samuel  Locke,  to  wit,  at  Westminster 
aforesaid,  in  the  county'  aforesaid. 

Tindal,  for  the  plaintiff  in  error. 

Chitty^  contra. 

Best,  C.  J.  The  court  is  of  opinion,  that  this  count  is  sufficient 
after  verdict.  The  objections  which  have  been  made  to  it,  ai'e,  first, 
that  there  was  no  consideration  for  the  defendant's  promise  ;  secondly, 
that  if  there  was,  it  is  insufficient!}-  stated. 

The  second  objection  cannot  be  raised  in  this  stage  of  the  cause  ;  if 
available  at  all,  it  is  an  objection  on  demurrer,  but  not  in  error  or 
arrest  of  judgment. 

Is  there,  then,  any  consideration  for  the  defendant's  promise?  the 
count  states,  that  the  plaintiiff  had  retained  the  defendant  at  his  request 
to  laj'  out  £700  in  the  purchase  of  an  annuity.  That  the  defendant 
promised  to  lay  it  out  securely,  and  that  the  plaintiff  delivered  him  the 
money  for  that  purpose.  The  case  of  Coggs  v.  Bernard  decides  that 
this  was  abundant  consideration  ;  the  consideration  in  that  case  was 
the  deliver}'  of  brandy  ;  here  it  is  the  delivery  of  £700,  which  casts  it 
on  the  defendant  to  account  for  the  same.  It  is  urged,  indeed,  that 
though  this  consideration  appears,  it  is  nowhere  stated  to  be  the  con- 
sideration for  the  defendant's  promise  ;  but  after  verdict  it  must  be 
taken  that  the  promise  was  made  upon  tliis  consideration.  The  princi- 
ple is,  to  ascertain  what  the  judge  would  require  to  be  proved  at  ISTisi 
Prius,  and  in  the  present  case  nothing  less  would  have  been  sufficient 


SECT.  I.]  PAKKER   V.    BRANCKER.  887 

than  proof  of  the  deliveiy  of  the  money  to  the  defendant,  and  of  his 
engagement  to  lay  it  out.  The  judgment  of  the  court  above,  therefore, 
must  be  Affirmed. 


PARKER   V.    BRANCKER  et  al. 

Supreme  Judicial  Court  of  Massachusetts.     1839. 

[22  Pkk.  40.] 

In  Jul}',  1832,  Parker,  the  plaintiff,  consigned  to  Brancker,  Delius, 
&  Co.,  the  defendants,  commission  merchants  in  Hamburg,  1640  bags 
of  coffee,  on  which,  according  to  a  previous  agreement,  Brancker, 
Delius,  &  Co.  made  large  advances.  Parker  sent  a  letter  of  instruc- 
tions limiting  the  sale  at  a  certain  price.  Brancker,  Delius,  &  Co. 
afterwards  brought  a  suit  against  Parker,  to  recover  the  amount  of 
their  advances.  The  coffee  had  not  then  been  sold,  but  having  been 
sold  pending  the  suit  for  a  sum  less  than  the  advances,  expenses,  and 
interest,  credit  was  given  in  the  suit,  for  the  net  proceeds.  In  that  suit, 
Parker  offered  evidence  tending  to  show  that  Brancker,  Delius,  &  Co. 
could  and  ought  to  have  sold  the  coffee  at  the  limit,  in  September,  1833, 
before  the  commencement  of  that  suit.  To  the  admission  of  this 
evidence  the  counsel  of  Brancker,  Delius,  &  Co.  objected,  but  it  was 
admitted.  The  jury  found  a  verdict  in  favor  of  Brancker,  Delius,  &  Co. 
for  the  amount  of  the  advances,  expenses,  and  interest,  deducting  the 
net  proceeds  of  the  coffee.  Upon  this  verdict  judgment  was  rendered 
Pending  that  suit,  the  coffee  having  been  sold  by  Brancker,  Delius 
&  Co.  at  a  price  much  below  the  limit,  Parker  brought  the  present 
action,  in  which  he  claimed  damages  of  them  :  1.  for  not  selling  the 
coffee  at  the  limit,  in  September,  1833  ;  and  2.  for  afterwards  selling 
it  below  the  limit,  after  having  commenced  their  action  to  recover  back 
their  advances. 

In  answer  to  the  claim  for  not  selling  at  the  limit,  the  defendants 
oflfered,  with  other  evidence,  the  judgment  in  the  former  suit,  and  proof 
that  the  same  matter  had  been  submitted  to  the  jury  in  the  defence  of 
that  suit ;  to  the  admission  of  which  the  plaintiff  objected,  on  the 
ground  that  the  former  suit  being  for  money  had  and  received,  evidence 
of  a  breach  of  orders  in  not  selling  at  the  limit  was  inadmissible,  and 
therefore  that  proof  that  it  was  submitted  to  the  former  jury  was  inad- 
missible in  the  present  case.  But  the  Chief  Justice,  before  whom  the 
action  was  tried,  admitted  the  evidence,  reserving  the  question  for  the 
whole  court. 

In  support  of  the  second  claim,  for  selling  the  coffee  below  the  limit, 
the  plaintiff  introduced  the  letter  of  instructions  sent  with  tlie  consign- 
ment, dated  the  seventh  of  July,  1832,  fixing  the  limit  at  sixty  shillings 
the  hundred  weight,  and  the  answer  of  the  defendants,  dated  the  21st  of 
August,  1832,  acknowledging  the  receipt  of  the  orders  and  accepting 


888  PARKER  V.    BRANCKER.  [CHAP.  VII. 

the  consignment.  Also  a  letter  from  the  plaintiff  to  the  defendants, 
dated  in  February,  1833,  reducing  the  limit  to  fifty-eight  shillings. 
Also  the  writ  in  the  former  suit,  by  which  it  appeared,  that  on  the  14th 
of  June,  1834,  the  defendants  commenced  that  suit  and  directed  the  sheriff 
to  attach  property  to  the  amount  of  $3500,  which  was  done.  The  plaintiff 
also  proved,  that  on  the  21st  of  October,  1834,  and  pending  the  former 
suit,  the  defendants  sold  the  coffee  at  a  price  very  much  below  the  limit, 
and  that  in  the  following  spring  coffee  rose  to  a  considerably  higher 
price  than  that  at  which  the  plaintiff's  coffee  had  been  sold  ;  and  the 
plaintiff  claimed  the  difference  between  the  actual  sales  and  the  price 
which  the  article  would  have  brought  in  the  following  spring. 

The  defendants  contended,  1.  that  they  had  exercised  due  care  and 
diligence  in  the  sale  of  the  plaintiffs  coffee  ;  that  there  was  no  period 
when  the}"  could  have  realized  the  price  limited  by  the  plaintiff,  and 
especially  they  could  not  do  so  in  September,  1833.  2.  That  the  ques- 
tion of  due  diligence  and  abilit}"  to  realize  the  plaintiff's  limit  in  Septem- 
ber, 1833,  had  been  submitted  by  the  present  plaintiff  to  the  jury  in  the 
former  suit ;  and  had  been  found  against  him.  3.  That  at  diverslimes, 
and  especially  in  June,  1834,  the  defendants'  agent  demanded  payment 
of  the  plaintiff  for  a  portion  of  the  sum  advanced,  which  was  not  com- 
plied with.  4.  That  the  plaintiff,  in  June,  1834,  fixed  on  the  autumn 
of  that  year  as  the  period  when  he  wished  the  sale  of  his  coffee  to  be 
made,  and  it  was  actually  kept  till  that  time  b}'  the  defendants  and  then 
sold  to  the  best  advantage  at  the  then  market  prices. 

In  support  of  these  allegations  the  defendants  read  certain  depositions 
and  letters  ;  also  a  report  of  the  former  suit,  and  the  bill  of  particulars, 
verdict,  judgment,  and  execution  therein. 

Upon  the  evidence  in  the  case  the  Chief  Justice  instructed  the  jury, 
that  a  commission  merchant,  having  received  goods  to  sell  at  a  certain 
limited  price,  and  made  advances  upon  such  goods,  had  a  right  to  reim- 
burse himself  by  selling  such  goods  at  the  fair  market  price,  though  below 
the  limit,  if  the  consignor  refused,  upon  application  and  after  a  reason- 
able time,  to  repay  the  advances.  To  this  instruction  the  plaintiff 
excepted,  and  the  question  was  reserved. 

J^.  Dexter,  for  the  plaintiff. 

C  P.  Curtis^  for  the  defendants. 

Wilde,  J.-'  The  rule  of  law  thus  laid  down  appears  to  the  court 
to  have  been  stated  with  perfect  accuracy,  and  with  all  the  qualifications 
which  are  applicable  to  the  defendants'  riglit  of  sale,  as  claimed  by  them 
on  the  evidence. 

The  law  appears  to  be  well  settled,  both  in  England  and  in  this  coun- 
try, that  the  pledgee  of  personal  property,  after  the  debt  becomes  due, 
may  sell  without  a  judicial  process  and  decree  of  foreclosure,  upon 
giving  reasonable  notice  to  the  debtor  to  redeem. 

It  was  so  decided  in  Tucker  v.  Wilson,  1  P.  Wms.  261,   and  in 

^  The  opinion  has  been  abbreviated  by  omitting,  at  the  beginning  and  elsewhere, 
paaaages  not  dealing  with  the  instructions.  —  Ed. 


SECT.  I.]  PARKER   V.    BRANCKER.  889 

Lock  wood  V.  Ewer,  2  Atk.  303.  The  same  rule  of  law  was  laid  down 
in  De  Lisle  v.  Priestman,  1  Brown's  Peun.  R.  176,  and  in  New  York 
by  Chancellor  Kent,  in  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  R.  100,  and 
again  in  his  Commentaries ;  2  Kent  (3d  edit.),  582. 

The  principle  thus  settled  seems  to  be  founded  in  good  sense,  and  may 
be  essentially  necessary  to  enable  the  pledgee  to  avail  himself  of  his 
pledge,  in  a  reasonable  manner,  for  the  discharge  of  his  demand. 

In  the  present  case  the  defendants  were  not  merely  pledgees,  but 
the}'  were  expressly  authorized  to  sell  the  property  consigned  to  them, 
and  thereb}'  to  reimburse  themselves  for  their  advances.  There  was 
no  time  limited  within  which  the  sale  was  to  have  been  made.  The 
defendants  were,  therefore,  bound  by  their  acceptance  of  the  consign- 
ment, to  wait  a  reasonable  time,  if  the  sale  could  not  be  made  for  the 
price  limited,  although  by  the  delay  their  security  might  be  impaired. 

But  after  such  a  reasonable  time  had  elapsed,  and  a  demand  had 
been  made  upon  the  plaintiff  to  repay  the  mone}-  advanced,  and  he  had 
refused  so  to  do,  he  had  no  further  power,  by  any  principle  of  law  or 
justice,  to  control  the  defendants'  right  of  sale  to  their  prejudice. 
Such  a  power  would  be  inconsistent  with  the  understanding  of  the 
parties,  as  it  must  be  presumed  to  have  been  when  the  advances  were 
made  ;  and  it  would  enable  the  plaintiff  to  impair  the  defendants'  securit}', 
at  his  own  will  and  pleasure  for  an  unlimited  time,  if  he  were  disposed 
so  to  do.  To  sanction  such  a  right,  would  operate  injuriousl}'  on  the 
interests  of  consignees,  and  would  check  the  continuance  of  those 
large  advances,  by  the  aid  of  which  a  flourishing  trade  has  been  carried 
on,  for  years  past,  to  the  great  profit  of  the  mercantile  community. 
For  although  such  advances  may  sometimes  lead  to  overtrading,  and 
may  induce  individuals  to  venture  upon  rash  speculations,  yet  it  cannot 
be  doubted,  that  on  the  whole  they  have  contributed  to  the  increase  of 
the  wealth  and  prosperit}'  of  the  countr}'.  The  principle,  therefore, 
involved  in  this  case  is  of  great  importance,  and  has  been  considered 
by  the  court  with  great  care.  .  .  . 

The  defendants  .  .  .  are  entitled  to  judgment  on  their  verdict.^ 

1  Ace. :  Brown  v.  McGran,  14  Pet.  479,  494-495  (1840) ;  Frothingham  v.  Everton,  12 
N.  H.  239  (1841);  Marfield  v.  Goodhue,  3  N.  Y.  62  (1849);  Feild  v.  Farrington,  10 
Wall.  141  (1869). 

See  Weed  v.  Adams,  37  Conn.  378  (1870). 

Compare  Smart  v.  Sandars,  5  C.  B.  895  (1848);  De  Comas  i;.  Frost,  3  Moo.  P.  C. 
H.  8.  158  (1865).  — Ed. 


890  WILSON   V.    BRETT.  [CHAP.  VIL 


WILSON  V.  BRETT. 
Exchequer.     1843. 
[11  M.Sr  W.  113.] 

Case.  The  declaration  stated,  that  the  plaintiff,  at  the  request  of 
the  defendant,  caused  to  be  delivered  to  the  defendant  a  certain  horse 
of  the  plaintiff  of  great  value,  to  wit,  &c.,  to  be  by  the  defendant 
shown  to  a  certain  person  to  the  plaintiff  unknown,  and  to  be  re- 
delivered by  the  defendant  to  the  plaintiff  on  request,  and  that  there- 
upon it  then  became  and  was  the  duty  of  the  defendant  to  take  due  and 
proper  care  of  the  said  horse,  and  to  use  and  ride  the  same  in  a  careful, 
moderate,  and  reasonable  manner,  and  in  places  fit  and  proper  for  that 
purpose  :  3-et  the  defendant,  not  regarding  his  duty,  &c.,  did  not  nor 
would  take  due  and  proper  care  of  the  said  horse,  but  on  the  contrary 
used  and  rode  the  same  in  a  careless,  immoderate,  and  improper  man- 
ner, and  in  unfit  and  improper  places,  &c.,  whereby  the  said  horse  was 
injured,  &c.     Plea,  not  guilty. 

At  the  trial  before  Rolfe,  B.,  at  the  London  Sittings  in  this  term, 
it  appeared  that  the  plaintiff  had  intrusted  the  horse  in  question  to  the 
defendant,  requesting  him  to  ride  it  to  Peckham,  for  the  purpose  of 
showing  it  for  sale  to  a  Mr.  Marge tson.  The  defendant  accordingly 
rode  the  horse  to  Peckham,  and  for  the  purpose  of  showing  it,  took  it  into 
the  East  Surrey  Race  Ground,  where  Mr.  Margetson  was  engaged  with 
others  playing  the  game  of  cricket :  and  there,  in  consequence  of  the 
slippery  nature  of  the  ground,  the  horse  slipped  and  fell  several  times, 
and  in  falling  broke  one  of  his  knees.  It  was  proved  that  the  defend- 
ant was  a  person  conversant  with  and  skilled  in  horses.  The  learned 
judge,  in  summing  up,  left  it  to  the  jury  to  say  whether  the  nature  of 
the  ground  was  such  as  to  render  it  a  matter  of  culpable  negligence  in 
the  defendant  to  ride  the  horse  there  ;  and  told  them,  that  under  the 
circumstances,  the  defendant,  being  shown  to  be  a  person  skilled  in  the 
management  of  horses,  was  bound  to  take  as  much  care  of  the  horse  as 
if  he  had  borrowed  it ;  and  that,  if  they  thought  the  defendant  had  been 
negligent  in  going  upon  the  ground  where  the  injuiy  was  done,  or  had 
ridden  the  horse  carelessly  there,  the}-  ought  to  find  for  the  plaintiff. 
The  jur}'  found  for  the  plaintiff,  damages  £5  10s. 

Byles^  Sergt.,  now  moved  for  a  new  trial,  on  the  ground  of  mis- 
direction.—  There  was  no  evidence  here  that  the  horse  was  ridden  in  an 
unreasonable  or  improper  manner,  except  as  to  the  place  where  he  was 
ridden.  The  defendant  was  admitted  to  be  a  mere  gratuitous  bailee  ; 
and  there  being  no  evidenceof  gross  or  culpable  negligence,  the  learned 
judge  misdirected  the  jur}',  in  stating  to  them  that  there  was  no  differ- 
ence between  his  responsibilit}'  and  that  of  a  borrower.  Tliere  are 
three  classes  of  bailments :  the  first,  where  the  bailment  is  altogothei 
for  the  benefit  of  the  bailor,  as  where  goods  are  delivered  for  deposit  oi 


SECT.  I.]  WILSON    V.    BRETT.  891 

carriage  ;  the  second,  wliere  it  is  altogether  for  the  benefit  of  the  bailee, 
as  in  the  case  of  a  borrower;  and  the  third,  where  it  is  partly  for  the 
benefit  of  each,  as  in  the  case  of  a  hiring  or  pledging.  This  defendant 
was  not  within  the  rule  of  law  applicable  to  the  second  of  these  classes. 
The  law  presumes  that  a  person  who  hires  or  borrows  a  chattel  is  pos- 
sessed of  competent  skill  in  the  management  of  it,  and  holds  him  liable 
accordingly.  The  learned  judge  should  therefore  have  explained  to 
the  jury,  that  that  which  would  amount  to  proof  of  negligence  in  a 
borrower,  would  not  be  sufficient  to  charge  the  defendant,  and  that  he 
could  be  liable  only  for  gross  or  culpable  negligence. 

Lord  Abingek,  C.  B.  We  must  take  the  summing  up  altogether; 
and  all  that  it  amounts  to  is,  that  the  defendant  was  bound  to  use  such 
skill  in  the  management  of  the  horse  as  he  really  possessed.  Whether 
he  did  so  or  not  was,  as  it  appears  to  me,  the  proper  question  for  the 
jury.  I  think,  therefore,  that  the  direction  was  perfectly  right,  and 
that  no  rule  ought  to  be  granted. 

Parke,  B.  I  think  the  case  was  left  quite  correctly  to  the  juiy. 
The  defendant  was  shown  to  be  a  person  conversant  with  horses,  and 
was  therefore  bound  to  use  such  care  and  skill  as  a  person  conversant 
with  horses  might  reasona])ly  be  expected  to  use  :  if  lie  did  not,  he  was 
guilty  of  negligence.  The  whole  effect  of  what  was  said  bj'  the  learned 
judge  as  to  the  distinction  between  this  case  and  that  of  a  borrower, 
was  this  ;  that  this  particular  defendant,  being  in  fact  a  person  of 
competent  skill,  was  in  effect  in  the  same  situation  as  that  of  a  bor- 
rower, who  in  point  of  law  represents  to  the  lender  that  he  is  a  person 
of  competent  skill.  In  the  case  of  a  gratuitous  bailee,  where  his  pro- 
fession or  situation  is  such  as  to  impl}-  the  possession  of  competent 
skill,  he  is  equally  liable  for  the  neglect  to  use  it. 

Alderson,  B.  The  learned  judge  thought,  and  correctly,  that,  this 
defendant  being  shown  to  be  a  person  of  competent  skill,  there  was  no 
difference  between  his  case  and  that  of  a  borrower  ;  because  the  only 
difference  is,  that  there  the  part}'  bargains  for  the  use  of  competent 
skill,  which  here  becomes  immaterial,  since  it  appears  that  the  defend- 
ant has  it. 

RoLFE,  B.  The  distinction  I  intended  to  make  was,  that  a  gratuitous 
bailee  is  only  bound  to  exercise  such  skill  as  he  possesses,  whereas  a 
hirer  or  borrower  may  reasonably*  be  taken  to  represent  to  the  part}' 
who  lets,  or  from  wliom  he  borrows,  that  he  is  a  person  of  competent 
skill.  If  a  person  more  skilled  knows  that  to  be  dangerous  which 
another  not  so  skilled  as  be  does  not,  surel}'  that  makes  a  difference  in 
the  liabilitj'.  I  said  I  could  see  no  difference  between  negligence  and 
gross  negligence  —  that  it  was  the  same  thing,  witli  the  addition  of  a 
vituperative  epithet ;  and  I  intended  to  leave  it  to  the  jury  to  say 
whether  the  defendant,  being,  as  appeared  by  the  evidence,  a  person 
accustomed  to  the  management  of  horses,  was  guilty  of  culpable 
negligence.  Biile  refused.'^ 

1  See  Shiells  v.  Blackburne,  1  H.  Bl.  158  (1789).  —Ed. 


892  OPIE   V.   SERRILL.  [CHAP.  VIL 


OPIE  V.  SERRILL. 
Supreme  Court  of  Pennsylvania.     1843. 

[6  W.  4'  S.  264.] 

Error  to  the  District  Court  for  the  city  and  county  of  Philadelphia.* 

Ilicskell,  for  the  plaintiff  in  error. 

F.  3Ion'is  and  McCall,  contra. 

Sergeant,  J.  This  was  an  action  of  assumpsit  for  goods  sold  and 
delivered.  The  orfginal  debt  was  not  denied,  but  the  defendant  alleged 
that  the  plaintiffs  received  from  him  on  account  certain  claims  against 
a  third  person  in  Nashville,  Tennessee,  consisting  of  a  note  to  the 
defendants,  then  due,  and  a  book-account  for  a  small  sum,  transferred 
to  the  plaintiffs,  both  of  which  were  received  by  the  plaintiffs  for  collec- 
tion ;  that  afterwards  the  plaintiffs  took  from  the  debtor  at  New 
Orleans  a  new  note  at  four  months  for  the  whole  amount  due  from 
him,  made  payable  to  the  order  of  the  plaintiffs,  and  thereupon  deliv- 
ered up  to  him  the  original  note  and  book-account.  To  prove  these 
facts,  he  offered  in  evidence  the  plaintiffs'  answer  to  a  bill  of  discovery, 
but  the  court  rejected  it.  We  are  of  opinion  that  the  evidence  ought 
to  have  been  received.  In  itself,  the  answer,  with  the  bill,  was  evi- 
dence to  go  to  the  jury,  and  there  is  nothing  in  the  answer  which  takes 
away  the  defence,  though  the  whole  of  the  answer  be,  as  it  is  con- 
tended it  ought  to  be,  taken  together.  It  is  alleged  that  the  under- 
taking to  collect  was  gratuitous,  and  therefore  the  plaintiffs,  as  agents, 
were  only  liable  for  gross  negligence.  It  is  not  necessary  to  examine 
the  law  on  this  head,  because  whenever  an  agency  is  assumed,  whether 
gratuitous  or  not,  the  parties  are  bound  b}'  the  terms  agreed  upon 
between  them.  Jones  on  Bailm.  101,  114,  115,  116;  Story  on  Bailm. 
137.  An  agent  undertaking  to  collect  a  debt  placed  in  his  hands,  who 
releases  it  and  takes  from  the  debtor  a  new  note  to  himself,  does,  in 
law,  receive  payment  of  the  debt,  and  is  at  once  liable  to  the  principal 
as  if  he  had  received  the  money.  In  Floj'd  v.  Day,  3  Mass.  403,  an 
attorney  employed  to  collect  a  demand  compromised  it  by  receiving  a 
note  (part  of  which  had  been  paid),  specially  endorsed  to  himself;  and 
in  an  action  of  trover  for  the  note  brought  against  him,  the  court  say, 
that  when  the  defendant,  instead  of  mone}',  received  this  note,  and  dis- 
charged the  debtor,  the  property  of  the  note  was  in  the  defendant,  and 
he  became  immediately  answerable  to  the  plaintiff  for  the  amount  of 
the  liquidated  damages,  which  made  part  of  the  consideration  of  the 
principal,  and  an  action  of  assumpsit  was  the  proper  remedy.  He 
must  be  considered  as  having  made  himself  liable  for  the  money  he 
ought  to  have  received.  In  the  case  before  us,  the  plaintiffs  released 
and  extinguished  the  original  debt  by  a  surrender  of  the  note  and 

^  The  reporter's  statement  has  been  omitted.  —  Ed. 


SECT.  I.]  WOLFF   V.    KOPPEL.  893 

book-account,  and  the  taking  a  new  note  was  as  much  a  payment  of  it, 
as  regards  the  defendant,  as  if  the  plaintiffs  had  received  the  mone}-. 
Having  collected  the  debt,  therefore,  thej-  must  be  responsible  for  it. 

Judgment  reversed^  and  a  venire  facias  de  novo  awarded.^ 


WOLFF  AND   HENRICKS   v.  KOPPEL. 

Court  of  Errors  of  New  York.     1845. 

[2  Denio,  368.] 

On  error  from  the  Supreme  Court.  Koppel  sued  Wolff  &  Henricks 
in  the  New  York  C.  P.  in  assumpsit  for  the  price  of  certain  goods  sold 
b}'  the  defendants  as  the  plaintiff's  factors  under  an  agreement,  as 
alleged,  to  guarant}'  the  sales.  The  question  upon  the  trial  was 
whether  the  defendants  acted  under  a  del  credere  commission  or  not. 
The  plaintiff  produced  the  account  of  sales  rendered  by  the  defendants, 
in  which  a  commission  of  five  per  cent  was  charged,  and  much  of  the 
evidence  related  to  the  question  whether  the  amount  charged  for  com- 
missions afforded  evidence  of  an  agreement  to  guarant}-  the  sales. 
There  was  other  evidence  upon  the  principal  question  arising  out  oi 
the  acts  and  declarations  of  the  parties.  When  the  plaintiff  rested, 
the  defendants  moved  for  a  nonsuit,  insisting  that  they  could  not  be 
made  responsible  as  guarantors  of  the  sales,  except  upon  an  under- 
taking in  writing  valid  within  the  Statute  of  Frauds.  The  motion  was 
denied,  and  the  defendants'  counsel  excepted.  The  cause  was  after- 
wards submitted  to  the  jury,  who  found  for  the  plaintiff,  and  judg- 
ment was  rendered  accordingly.  The  defendants  brought  error  to 
the  Supreme  Court,  where  the  judgment  of  the  Common  Pleas  was 
affirmed  ;  upon  which  the  defendants  brought  error  to  this  court.  The 
reasons  for  the  judgment  of  affirmance  are  contained  in  the  report  of 
the  case  in  5  Hill,  458. 

George  Wood,  for  the  plaintiffs  in  error. 

C.  E.  Benedict^  for  the  defendant  in  error. 

Porter,  Senator.  This  writ  of  error  seems  to  have  been  brought  to 
determine  whether  the  agreement  of  a  factor  to  guarant}'  the  sales 
made  by  him  is  a  contract  within  the  Statute  of  Frauds,  requiring  an 
agreement  in  writing  to  prove  its  existence.  This  necessarily  involves 
an  inquir}'  into  the  nature  of  the  contract  which  the  factor  makes  in 
such  a  case.  The  plaintiff  insists  that  one  acting  under  a  del  credere 
commission  is  a  guarantor  or  surety  for  the  debt  which  the  purchaser 
of  the  goods  contracts  ;  while  the  defendants,  on  the  other  hand,  main- 
tain that  the  factor  contracts  an  original  absolute  obligation,  to  pay  the 

1  Ace.  :  Paul  v.  Grimm,  165  Pa.  139  (1895).  — Ed. 


894  WOLFF   V.    KOPPEL.  [CHAP.  VH. 

principal  the  amount  of  the  sales,  at  the  expiration  of  the  term  of 
credit.  It  depends  upon  the  character  of  the  contract  in  this  respect, 
whether  the  i)romise  of  the  factor  is  to  pa}"  the  debt  of  another,  or  his 
own  proper  debt,  and  consequently  whether  it  can  be  proved  by  parol. 

I  find  no  case  decided  prior  to  the  year  1816  which  favors  the  posi- 
tion taken  b}'  the  defendants.  Previous  to  that  time,  there  are  man}' 
cases  directly  hostile  to  that  position.  In  1786,  in  the  case  of  Grove 
V.  Dubois,  1  T.  R.  112,  Lord  Mansfield,  C.  J.,  held  that  the  engage- 
ment of  a  broker  acting  under  a  del  credere  commission  was  absolute  ; 
and  that  he  was  liable  in  the  first  instance,  and  at  all  events.  BuUer,  J. 
agreed  with  him  full}-,  and  said  he  had  never  heard  the  inquir}-  made, 
whether  a  demand  had  been  made  upon  the  purchaser.  We  find  these 
two  verj-  distinguished  judges  speaking  of  this  as  a  familiar  principle, 
and  one  universall}'  acknowledged  and  practised  upon.  The  case  of 
Scott  V.  Mackenzie,  decided  in  Scotland  in  1795,  involved  the  same 
principle.  The  defendant,  a  factor,  acting  under  a  del  credere  commis- 
sion, at  the  request  of  his  principal,  transmitted  the  proceeds  of  the 
sales  in  a  bill  on  a  house  in  London.  The  parties  to  the  bill  failed 
before  paNment.  On  the  question  as  to  the  liability'  of  the  factor,  the 
court  in  Scotland  decided  that  no  paj-ment  but  such  an  one  as  would 
have  satisfied  a  proper  debt,  was  sufficient  to  discharge  the  factor ;  and 
gave  judgment  for  the  plaintiff.  This  judgment  was  affirmed  in  the 
House  of  Lords  in  1796.  6  Bro.  Par.  Cas.  280.  In  Houghton  v. 
Matthews,  3  Bos.  &  Pull.  489,  Chambre,  J.  says,  that  where  a  factor 
sells  under  a  del  credere  commission,  he  becomes  responsible  for  the 
price,  and  he  is  to  be  considered,  as  between  himself  and  the  vendor, 
as  the  sole  owner  of  the  goods.  In  the  same  case  Lord  Alvanlej', 
Ch.  J.  says,  that  the  effect  of  a  del  credere  commission  is  to  make  the 
factor  responsible  for  the  value  of  the  goods  to  his  principal.  These 
opinions  were  given  in  1803.  Mr.  Bell,  in  his  Commentaries,  pub- 
lished in  1816,  at  p.  378,  lays  down  the  rule  thus  :  "  The  correct  legal 
import  of  a  del  credere  engagement,  is  an  engagement  to  be  answerable 
as  if  the  person  so  binding  himself  was  the  proper  debtor.  This  seems 
"o  be  the  correct  legal  import  of  the  undertaking ;  and  it  is  as  nearlj' 
vs  possible,  the  meaning  of  the  Italian  phrase  which  we  have  adopted. 
He  is  placed,  in  relation  to  the  principal,  precisely-  in  the  same  situa- 
tion as  if  he  had  actually  received  in  loan  the  mone}-  of  the  principal." 
Paley  on  Agenc}-,  p.  39,  adopts  the  same  rule.  Mr.  Corny n,  in  his 
treatise  on  contracts,  vol.  I.  p.  253,  is  equall}-  explicit  in  his  statement 
of  this  rule.  He  sa3's,  "  a  factor  del  credere,  on  the  sale  of  the  goods 
makes  himself  absolutel}'  liable  in  the  first  instance,  for  the  pa3'ment  of 
the  price  of  such  goods,  in  the  same  manner  as  if  he  were  himself  the 
purchaser,  and  was  debited  for  them  b}'  the  principals  as  such."  Chan- 
cellor Kent,  in  the  first  edition  of  his  commentaries,  published  in  1826, 
states  his  view  at  that  time  of  the  law  on  this  point  as  follows  :  "  When 
a  factor  acts  under  a  del  credere  commission  for  an  additional  premium 
he  becomes  liable  to  his  principal  when  the  purchase  mone}-  falls  due ; 


SECT.  I.]  WOLFF   V.    KOPPEL.  895 

for  he  is  substituted  for  the  purchaser,  and  is  bound  to  pa}',  not  con- 
ditionall}-,  but  absoUitely,  and  in  the  first  instance."  2  Kent's  Com. 
1st  ed.  487.  The  principle  is  stated  in  the  same  wa^'  in  2  Chitty  on 
Com.  Law,  220,  1. 

Here  we  have  a  whole  current  of  decisions  and  a  coincidence  of 
opinions  among  eminent  authors,  in  favor  of  the  absolute  liabilit\'  of 
'  the  factor  to  pay  the  price  for  which  goods  are  sold  under  such  a  com- 
mission, when  the  credit  has  expired.  This  should,  I  think,  settle  the 
question.  But  the  doctrine  has  been  questioned,  and  finally'  overruled, 
in  England.  It  was  first  doubted  in  Morris  v.  Cleasb}^,  4  Maule  & 
Selw.  56G,  decided  in  1816  ;  and  Chancellor  Kent,  in  the  fourth  edition 
of  his  commentaries,  modifies  what  he  had  before  stated,  and  treats  the 
point  as  a  vexata  quest io,  while  in  a  note  to  his  last  edition,  he  sa^'s,  it 
is  now  settled  in  England,  that  the  factor  is  onl}^  a  suret}-  for  the 
solvenc}-  of  the  purchaser.  I  do  not  find,  however,  that  the  recent 
innovation  in  England  has  been  adopted  in  this  country,  except  ia 
Tliompson  v.  Perkins,  3  Mason's  Rep.  232,  where  Mr.  Justice  Story 
has  followed  the  case  of  Morris  v.  Cleasbv.  AVe  are  now  asked  to  give 
the  new  rule  the  sanction  of  this  court.  But  in  my  judgment  we 
should  not  follow  the  courts  in  England  in  their  departure  from  the 
former  rule.  This  is  a  class  of  contracts  that  have  existed  in  this 
country  as  long  as  commerce  has  flourished,  and  under  which  business 
is  daily  transacting  to  a  large  amount.  The  understanding  of  the  mer- 
cantile community  has,  I  apprehend,  been  general  and  uniform,  that 
the  agreement  between  the  principal  and  factor  was  original  and  abso- 
lute to  pay  the  price  of  the  sale,  deducting  the  commission,  at  the  time 
the  credit  expired.  Doubtless  the  factor  expected  the  fund  would  be 
received  from  the  purchaser ;  but  whether  received  or  not,  he  charges 
himself  with  the  amount  in  his  account  with  his  principal.  A  contrary 
rule  would  require  the  principal  to  exhaust  his  remedy  against  the  pur- 
chaser, in  order  to  determine  his  insolvenc}',  l)efore  he  could  chai'ge  the 
factor  as  surety. 

The  Supreme  Court  of  Massachusetts  have  had  this  question  before 
them,  and  have  adhered  to  the  law  as  it  was  understood  in  England 
prior  to  1816.  In  Swan  v.  Nesmith,  7  Pick.  220,  decided  in  1828, 
Parker,  Ch.  J.  in  giving  the  opinion  of  the  court,  speaking  of  a  del 
credere  contract,  sa3's :  "The  legal  effect  of  such  a  contract  is,  to 
make  the  defendants,  the  factors,  liable  at  all  events  for  the  proceeds 
of  the  sale,  so  that  according  to  some  authorities,  though  denied  by 
others,  they  ma}'  be  charged  in  ludehitatics  assumpsit,  or  for  goods 
sold  to  them.  And  there  seems  to  be  no  good  reason  wh}-  they  should 
not  be  so  charged,  if  upon  receiving  the  goods  they  became  account- 
able ;  except  that  their  liability  is  not  fixed  until  a  sale  is  made,  or  if 
upon  credit,  until  the  time  of  payment  arrives."  I  am  not  satisfied 
that  the  new  rule  is  an  improvement,  if  we  were  at  libert}'  to  take  our 
choice  ;  but  on  the  other  hand,  think  it  wise  to  adhere  to  the  old  prin- 
ciple, that  adjudges  the  contract  of  the  factor  in  such  cases  to  be  an 


896  JOHNSTON   V.    KERSHAW.  [CHAP.  VII. 

original  and  absolute  one,  for  the  payment  of  the  price,  and  shall  there- 
fore vote  for  affirming  the  judgment  of  the  Supreme  Court. 

For  reversal :  Senators  Hand  ^  and  Mitchell  —  2. 

For  affirmance :  Senators  Backus,  Beekman,  Beers,  Bockee, 
Corning,  Deyo,  Emmons,  Folsom,  Johnson,  Jones,  Lott,  Porter, 
Sedgwick,  Smith,  Talcott,   and  Wright  —  16. 

Judgment  affirmed.^ 


JOHNSTON   AND   others   v.  KERSHAW. 

Exchequer.     1867. 

[L.  R.  2  Ex.  82.] 

Declaration  for  mone}-  payable  for  goods  bargained  and  sold,  work 
done  and  commission  due  in  respect  thereof,  for  money  paid,  and  for 
money  found  to  be  due  on  accounts  stated. 

Plea,  never  indebted.     Issue  thereon. 

The  cause  was  tried  before  Martin,  B.,  at  the  Liverpool  summer 
assizes,  1866,  when  the  following  facts  were  proved  :  — 

The  plaintiffs  are  merchants  at  Pernambuco,  and  the  defendant  is 
engaged  in  business  at  Liverpool.  On  the  8th  of  March,  1866,  the 
defendant,  who  had  on  previous  occasions  bought  cotton  from  the 
plaintiffs,  wrote  them  the  following  letter:  "1  beg  to  confirm  my 
letter  of  23d  Februar}',  and  hope  you  will  have  executed  fully  all  the 
cotton  ordered,  and  consider  still  in  force.  If  executed,  please  regard 
this  as  a  new  order  for  one  hundred  more,  at  extreme  limit,  ll^d.  for 
Pernam  or  Paraiba  Firsts,  and  one  hundred  Bahia  at  17ff/.  good,  fair, 
and  in  each  case  the  same  quantity  additional  for  each  halfpenny  down 
in  price.  Maceios  are  not  desirable,  unless  at  '2\d.  or  2>d.  below,  say 
about  Ibd.  I  shall  be  greatly  disappointed  if  I  get  no  cotton  at  these 
prudent  limits.  I  congratulate  myself  on  reducing  on  8th  January 
to  17^f/.,  avoiding  losses."  On  the  17th  of  March,  the  defendant  sent 
a  telegram  (which  was  afterwards  confirmed  by  letter)  repeating  the 
order,  and  altering  the  maximum  limit  for  Pernam  and  Paraiba  cotton 
to  19c/.  per  lb. 

In  conformity  with  this  order,  the  plaintiffs  Itought,  in  the  market  at 
Pernambuco,  on  the  defendant's  account,  one  hundred  bales  of  Paraiba 
cotton,  ninet3'-four  being  Paraiba  firsts,  and  six  being  Paraiba  seconds. 
On  the  12th  of  April  they  gave  notice  by  letter  to  the  defendant  of  this 
purchase,  and  of  the  shipment  of  the  goods.  In  the  letter  the}'  stated 
that  six  of  the  bales  wei'e  "  seconds,"  and  requested  the  defendant,  if 
he  did  not  want  them,  to  hand  them  over  to  Messrs.  Samuel  Johnston 

^  A  dissenting  opinion  by  Senator  Hand  has  not  been  reprinted.  —  Ed. 
2  Ace. :  Couturier  v.  Hastie,  8  Exch.  40  (1852).  —Ed. 


SECT.  I.]  JOHNSTON   V.    KEOSHAW.  897 

&  Co.,  of  Liverpool  [the  plaintiff's  Liverpool  house],  who  would  paj' 
the  invoice  cost.  Meanwhile,  there  having  been  a  heavy  fall  of  prices 
in  the  Liverpool  market,  the  defendant  had  written  on  the  7th  of  April 
to  the  plaintiffs,  reducing  his  limits  3d.  per  lb.,  and  also  directing  them, 
if  any  cotton  above  ll^d.  had  been  bought  on  his  account,  to  resell  the 
same  upon  the  spot,  at  least  possible  loss,  and  to  cancel  all  his  orders 
to  that  date  for  cotton  and  sugar.  The  letter  continued  thus :  "I 
will  write  by  next  mail,  when  I  hope  to  be  able  to  fix  a  maximum  price 
for  cotton.  In  the  meantime  T  hope  and  trust  3'ou  have  not  effected 
an}'  purchase  on  account  of  yours,  &c."  On  the  23d  of  April  the 
defendant  again  wrote  to  the  plaintiffs,  reiterating  the  instructions  con- 
tained in  the  letter  of  the  7th,  and  fixing,  in  the  event  of  a  panic  in  the 
market,  a  fresh  maximum  for  one  hundred  bales  of  Paraiba  firsts.  The 
plaintiffs,  on  the  28th  of  April,  in  acknowledging  the  receipt  of  the 
letter  of  the  7th,  stated,  with  reference  to  the  defendant's  request  to 
sell  any  cotton  the}'  might  have  bought  on  liis  account  on  the  spot,  that 
they  were  unable  to  comply  with  his  instructions  in  that  respect,  as  the 
onl}'  order  they  held  for  him  was  for  the  one  hundred  bales  already 
shipped. 

The  plaintiffs  drew  a  bill  on  the  defendant  for  the  price  of  these  one 
hundred  bales,  which  was  presented  at  maturity  to  him  for  pa^-ment. 
He  refused,  however,  to  pay  it.  The  plaintiffs  thereupon  brought  this 
action.  No  direct  evidence  was  given  of  the  state  of  the  market  at 
Pernambuco,  nor  as  to  whether  it  would  have  been  possible  for  the 
plaintiffs  to  have  bought  the  whole  one  hundred  bales  of  "firsts"  at 
the  time  they  bought  the  ninety-four. 

Under  these  circumstances,  a  verdict  was  entered  for  the  plaintiffs 
for  the  price  of  the  one  hundred  bales,  the  value  of  tlie  six  bales  being 
taken  accoi'ding  to  the  proportion  in  the  invoice  that  had  been  sent 
with  the  goods.  Leave  was  reserved  to  move  to  enter  a  verdict  for  the 
defendant,  on  the  ground  that,  on  the  facts  proved,  the  plaintiffs  were 
not  entitled  to  recover,  and  that  there  was  no  evidence  to  go  to  the 
jury  in  support  of  any  of  the  counts  of  the  declaration  :  or  to  reduce 
the  damages  by  the  value  of  the  six  bales  of  "seconds." 

A  rule  having  been  obtained  accordingly, 

Qtffdn,  Q.  C,  and  Be»jamin,  showed  cause. ^  The  defendant  is 
bound  to  pay  for  as  many  bales  of  the  proper  quality  as  were  bought 
on  his  account.  The  transaction  is  one  of  agency,  and  therefore  not 
governed  by  the  same  rules  as  a  transaction  between  vendor  and  ven- 
dee. The  principles  governing  the  case  are  those  laid  down  in  Story 
on  Agenc}',  §  170:  "The  principal  is  not  bound  by  the  unautliorized 
acts  of  his  agent,  but  is  bound  where  the  authority  is  substantially  pur- 
sued, or  so  far  as  it  is  distinctly  pursued.  But  the  question  may  often 
arise  whether,  in  fact,  the  agent  has  exceeded  what  may  be  deemed  the 
substance  of  his  authority.     Thus,  if  a  man  should  authorize  an  agent 

1  The  liability  of  the  defendants  to  take  the  six  bales  was  not  insisted  on.  —  Rep- 

67 


898  JOHNSTON    V.    KERSHAW.  [CHAP.  VII. 

to  bu3'  one  hundred  bales  of  cotton  for  him,  and  he  should  bu\-  fifty  at 
one  time  of  one  person,  and  fifty  at  another  time  of  a  different  person ; 
or  if  he  should  buy  fifty  only,  being  unable  to  purchase  more  at  any 
price,  or  at  the  price  limited,  the  question  might  arise  whether  the 
authority  was  well  executed.  In  general,  it  may  be  answered  that  it 
was  ;  because  in  such  a  case  it  would  ordinarily  be  implied  that  the 
purchase  might  be  made  at  different  times,  of  different  persons,  or  that 
it  might  be  made  of  a  part  onl}-,  if  the  whole  could  not  be  bought  at 
all,  or  not  within  the  limits  prescribed."  Here  there  is  no  direct  evi- 
dence that  the  plaintiffs  had  done  all  they  could  in  buying  ninety-four 
bales,  but  there  are  materials  enough  to  show  that  the}-  were  unable  to 
do  more.  In  Ireland  v.  Livingston,  Law  Rep.  2  Q.  B.  99,  the  defendant 
was  held  liable  under  almost  exactly  similar  circumstances  to  the  pres- 
ent. There  has  been  a  substantial  compliance  with  the  terms  of  the 
order ;  and  even  granting  it  was  not  strictly  executed,  the  defendant's 
subsequent  conduct,  as  shown  by  the  correspondence,  amounts  to  a 
ratification.  With  regard  to  the  form  of  the  declaration,  the  count  for 
mone}'  paid  at  all  events  will  certainly  lie. 

Jones,  Q.  C,  in  support  of  the  rule.  The  order  is  on  the  face  of  it 
for  one  hundred  bales,  neither  more  nor  less ;  and  in  order  to  entitle 
the  plaintiflTs  to  maintain  that  it  means  "  ;^/>  to  one  hundred,"  they  should 
have  given  evidence  as  to  the  usage  of  the  market  at  Pernambuco, 
as  was  done  in  Ireland  v.  Livingston.  As  the  case  stands  there  is 
nothing  to  show  that  a  purchase  of  anything  but  the  exact  number  of 
one  hundred  bales  was  contemplated  b}^  the  defendant,  or  would  be 
considered  a  performance  of  the  ordei*.  The  transaction  ought  not  to 
be  treated  as  one  of  agenc}'  entirel}',  but  as  of  sale  ;  and  regarding  it 
in  that  view  it  could  scarcely  be  contended  that  the  vendee  would  be 
bound  to  take  a  part  only  of  the  goods  ordered  by  him. 

Kelly,  C.  B.  I  am  of  opinion  that  the  plaintiffs  are  entitled  to 
our  judgment.  The  question  for  our  consideration  turns  entireh'  upon 
the  meaning  to  be  placed  upon  an  order  from  the  defendant  to  the 
plaintiflTs,  contained  in  a  letter  dated  the  8th  of  March,  1866,  in  these 
terms :  "  I  beg  to  confirm  xay  letter  of  the  •23d  of  February,  and  hope 
you  will  have  executed  fully  all  the  cotton  ordered,  and  consider  still  in 
force.  If  executed,  please  regard  this  as  an  order  for  one  hundred 
more."  Then  follows  a  description  of  the  sort  of  cotton  required,  and 
limitations  as  to  price.  Now  the  question  is,  whether  this  letter  neces- 
sarily means  an  order  to  purchase  one  hundred  bales  of  cotton  at  once, 
in  one  and  the  same  purchase,  or  whether  it  may  not  mean  an  order  to 
buy  these  one  hundred  bales  in  such  manner,  and  at  such  times,  as  the 
agent  might  find  practicable,  having  regard  to  the  state  of  the  market. 
I  regret  that  there  is  no  direct  evidence  before  us  of  what  the  state  of 
the  market  was  at  Pernambuco,  as  was  the  case  in  Ireland  v.  Living- 
ston. There  is,  however,  in  m}-  judgment,  enough  in  this  case  appar- 
ent, from  the  defendant's  language  and  conduct,  to  enable  us  to  collect 
that  the  state  of  the  market  was  not  such  as  to  admit  of  the  whole  one 


SECT.  I.]  JOHNSTON   V.    KERSHAW.  899 

hundred  bales  being  purchased  at  one  and  the  same  time.  I  consider 
that  we  have  materials  for  inferring  that  the  mode  of  executing  the 
order  contemplated  by  the  parties  was,  that  the  agents  at  Pernambuco 
sliould  go  into  the  market  and  bu}'  the  bales  ordered,  in  such  minor 
quantities  as  thej-  might  find  convenient  or  practicable.  If  they  could 
at  one  time  have  obtained  all  the  one  hundred  bales,  it  would  have  been 
their  duty  to  have  done  so.  But  we  may  fairly  conclude  from  their 
conduct  that  they  could  not.  They  actually  bought  ninety-four.  Surely 
they  would,  if  they  could,  have  bought  the  remaining  six.  Not  being 
able  to  buy  them,  were  they  to  leave  the  order  altogether  unexecuted? 
Rather  it  was  their  duty,  and  was,  I  think,  contemplated  by  the  defend- 
ant, that  they  should  buy  as  many  bales  as  they  could  get,  and  make 
up  the  total  number  as  soon  as  practicable. 

The  view  I  take  of  the  meaning  of  the  order  is  confirmed  b\-  the 
reference  to  the  order  of  the  23d  of  February,  contained  in  the  letter 
of  the  8th  of  March.  That  order  was,  it  appears,^  also  for  one  hundred 
bales  of  cotton,  and  llie  defendant  in  his  letter  expresses  a  hope  that 
it  had  been  "fully  executed."  Here,  tlien,  is  a  direction  by  the  defend- 
ant to  his  agent  at  Pernambuco  to  buy  "one  hundred  bales  more," 
if  the  agent  had  "  fully  executed"  tlie  previous  order,  /.  e.  if  they  had 
already  bought  one  hundred.  That  implies  a  notion  on  the  part  of  the 
defendant  that  very  likely  his  agents  had  not  "fully  executed"  the 
previous  order,  /.  e.,  had  onl}-  bought  as  many  of  the  one  hundred  as 
they  could  get.  I  think,  therefore,  that,  although  we  have  no  direct 
evidence  on  the  point,  there  is  sufficient  evidence  to  show  that  the  state 
of  the  market  at  Pernambuco  was  such  as  to  render  it  impossible  for 
the  plaintiffs  to  purchase  the  one  hundred  bales  all  at  once,  and  that 
the  parties  to  the  transaction  must  have  understood  that  the  purchase 
was  to  be  made,  if  necessary,  in  several  minor  quantities.  The  whole 
question,  it  is  true,  turns  on  the  meaning  of  the  order,  but  that  must 
be  taken  with  reference  to  the  state  of  the  market  for  which  it  was 
given. 

Under  these  circumstances,  I  think  that  this  rule  should  be  dis- 
charged. I  may  add  that  it  is  verv  satisfactory'  to  find  that  our  judg- 
ment is  in  accordance  with  the  proposition  cited  during  the  argument 
from  Justice  Story's  work  on  Agenc}'.-  Hide  discharged} 

1  The  order  had  not  been  put  in  evidence  at  the  trial,  but  it  was  stated  to  the  court, 
durin£^  the  ars^ument,  and  admitted  on  both  sides,  to  have  been  an  order  for  one 
hundred  bales. — Rep. 

-  Martin,  Channell,  and  Pigott,  BB.,  concurred.  The  opinion  of  Channell. 
B.,  has  been  omitted.  —  Ed. 

3  Compare  Lathrop  v.  Harlow,  23  Mo.  209  (1856).  —  Ed. 


900  EECHTSCHEKD   V.   THE    ACCOMMODATION    BANK.         [CHAP.  VII. 


RECHTSCHERD,    Plaintiff   in   Error,   v.    The    ACCOMMODA- 
TION  BANK,    Defendant   in   Error. 

Supreme  Court  of  Missouri.     1870. 

[47  Mo.  181.] 

Error  to  St.  Louis  Circuit  Court. 

Casselberry,  for  plaintiff  in  error. 

Krum  &  Decker .1  for  defendant  in  error. 

Wagner,  J.  Plaintiff  brouglit  his  action  on  a  certificate  of  deposit 
for  $2,600,  wliich  defendant,  b}'  its  answer,  admits  to  be  due. 

Defendant,  in  its  answer,  sets  up  a  counter-claim,  and  states  that 
before  the  plaintiff's  action  accrued,  the  plaintiff,  in  consideration  that 
defendant  would  receive  him  into  its  employ  as  collector  and  agent 
and  pa}-  him  a  salary  of  one  thousand  dollars  per  annum,  promised  and 
agreed  with  defendant  that  he  would  carefully  and  diligently  attend  to 
his  duties  as  such  collector  and  agent,  and  safely  and  prudently  care 
for  and  deliver  over  and  account  for  to  defendant  any  moneys  which  he 
might  receive  into  his  custody  as  such  agent  and  collector ;  and  that 
defendant,  relying  upon  such  engagement  and  promise,  did  receive  the 
plaintiff  into  its  employ  as  collector  and  agent,  and  did  pay  him  his 
said  salary,  and  did  in  all  things  perform  all  the  terms  and  conditions 
of  said  contract  on  its  part  to  be  performed,  but  that  defendant,  not 
regarding  his  said  engagement  and  emploj'ment,  failed  and  refused  to 
account  for  and  deliver  a  large  sum  of  mone}-,  to  wit :  the  sum  of 
02,983.06,  the  money  of  the  defendant,  which  came  into  his  care  and 
custody  while  in  the  employment  of  defendant  as  such  collector  and 
agent,  which  sum  of  money,  the  property  of  the  defendant,  was,  through 
the  fault  and  neglect  of  the  plaintiff,  wholly'  lost  to  the  defendant. 

The  plaintiff,  in  his  replication,  does  not  den}'  the  terms  and  condi- 
tions of  the  contract  and  employment  as  set  forth  in  the  answer,  but 
avers  that  he  has  in  all  things  complied  with  the  same.  He  denies  that 
the  sum  alleged  in  the  answer,  or  an}'  other  sum,  was  lost  to  the  defend- 
ant through  his  fault  or  negligence,  and  alleges  that  the  money  was, 
without  any  neglect  or  fault  on  his  part,  taken  from  him  by  thieves, 
robbers,  and  other  persons,  whilst  he  had  the  same  in  his  possession 
and  was  taking  extraordinary  care  of  the  same  for  and  as  the  agent  of 
the  defendant,  and  therefore  he  was  not  liable  for  the  same.  The  cause 
was  tried  at  Special  Term  before  a  jury,  who,  after  hearing  the  evidence 
and  being  instructed  by  the  court,  rendered  a  verdict  for  the  plaintiff. 
Upon  appeal  to  General  Terra  the  judgment  was  reversed  and  the 
cause  remanded  for  a  new  trial,  and  from  this  judgment  the  case  is 
brought  here  by  writ  of  error. 

If  the  money  was  taken  from  the  plaintiff  by  thieves  or  robbers  when 
he  was  using  ordinary  care  and  guilty  of  no  negligence,  he  was  clearly 
not  liable.     But  this  was  a  question  of  fact  for  the  jury  to  determine 


SECT.  1.]  RECHTSCHERD    V.    THE    ACCOMMODATIOX    BANK.  901 

upon  proper  instructions.  There  was  soraetliing  said  in  the  argument 
(and  it  is  alhided  to  in  the  record;  about  inconsistent  instructions  being 
given  to  the  plaintiff  in  the  transaction  of  his  business,  by  the  cashier 
and  the  note  clerk,  two  of  the  defendant's  officers.  Whether  the  note 
clerk  had  any  authority  to  give  the  orders,  or  it  was  the  duty  of  the 
plaintiff  to  obey,  was  not  very  clearly  developed  in  the  evidence,  and 
should  be  rendered  more  apparent. 

The  first  instruction  given  for  the  plaintiff  is  on  the  subject  of  con- 
tributory negligence,  and,  although  not  objectionable  as  a  proposition 
of  law,  is  hardly  justified  by  the  evidence.  Of  its  own  motion,  the 
court  instructed  the  jury  that  the  plaintiff,  as  collector  for  the  defendant, 
was  bound  to  use  such  care  as  men  of  ordinary  prudence  would  have 
used  under  like  circumstances;  if,  therefore,  the  plaintiff  used  such 
care  in  doing  the  business  of  the  defendant,  he  was  not  guilty  of  negli- 
gence, unless  he  disregarded  reasonable  instructions  given  to  him  by 
defendant  or  its  authorized  agents. 

The  following  instruction  asked  by  the  defendant  was  refused: 
"  Although  the  jury  may  believe  from  the  evidence  that  the  moneys  in 
controversy-  in  the  counter-claim  were  taken  from  the  plaintiflT  by  thieves 
or  robbers,  yet  the  plaintiff  is  not  excused  from  liability  to  the  bank  on 
that  account,  if  the  jury  find  that  such  loss  by  theft  or  robbery  was 
occasioned  b}-  the  failure  of  the  plaintiff  to  obe^-  the  instructions  given 
to  him  b}'  the  said  Accommodation  Bank  or  any  of  its  officers  thereto 
authorized." 

It  will  be  perceived  that  the  view  of  the  court  was,  that  in  order  to 
render  the  plaintiff  responsible  for  disregarding  the  instructions  of  the 
principal,  those  instructions  must  be  reasonable ;  whilst  the  instruction 
asked  b^'  the  defendant  asserted  the  absolute  right  of  the  principal  to 
give  whatever  instructions  it  saw  proper,  and  the  dut}-  of  the  agent  to 
obe}-.  We  suppose  that  there  is  no  doubt  about  the  established  rule  at 
law,  that  an  agent  is  bound  to  execute  the  orders  of  his  principal  when- 
ever, for  a  valuable  consideration,  he  has  undertaken  to  perform  them, 
unless  prevented  bj-  some  unavoidable  accident,  without  any  default  on 
his  part,  or  unless  the  instructions  require  him  to  do  an  illegal  or  im- 
moral act ;  and  it  is  no  defence  that  he  intended  to  act  for  the  benefit 
of  his  principal.  He  is  still  responsible  for  loss  occasioned  bj-  anj-  vio- 
lation of  his  duties,  either  in  exceeding  or  disregarding  instructions. 
Switzer  v.  Connett,  11  Mo.  88;  Storj-  on  Agencj-,  §  192;  Hays  v. 
Stone,  7  Hill,  128  ;  Wilson  v.  Wilson,  26  Pa.  394. 

It  is  the  duty  of  the  agent  to  adhere  faithful!}'  to  the  orders  of  the 
principal,  and  if  a  loss  occurs  in  consequence  of  his  voluntar}'  deviation, 
he  will  not  be  held  faultless.  It  is  true  that  instructions  may  be  disre- 
garded in  cases  of  extreme  necessity  arising  from  unforeseen  emergen- 
cies, or  if  performance  becomes  impossible,  or  if  they  require  a  breach 
of  law  or  morals.  Stor}'  on  Agenc}',  §  194.  These  are,  however,  ex- 
ceptional cases.  But  the  general  rule  is  as  indicated  in  what  has  been 
said  above,  and  the  case  as  made  in  the  record  is  not  brought  witliia 


902  COHEN   V.    KITTELL,  [CHAP.  VII. 

any  of  the  exceptions.  I  think,  therefore,  that  the  instruction  given 
by  the  court  of  its  own  motion  was  objectionable,  and  that  the  instruc- 
tion asked  by  the  defendant  should  have  been  given. 

Judgment  affirmed }■ 
The  other  judges  concur. 


COHEN  V.   KITTELL. 
Queen's  Bench  Division.     1889. 

[22  Q.  B.  D.  680.] 

Appeal  from  the  Mayor's  Court.  The  action  was  brought  by  the 
plaintiff  to  recover  the  sura  of  £27  13s.  &d.  either  as  money  had  and 
received  by  the  defendant  to  the  plaintiff's  use,  or  as  damages  for 
breach  of  contract  by  the  defendant  as  the  plaintiffs  agent. 

It  appeared  that  the  defendant  was  a  turf  commission  agent,  who 
undertook  to  bet  for  customers  for  a  commission  of  2|  per  cent  on 
winnings.  The  particulars  of  the  claim  consisted  of  an  account  showing  a 
number  of  bets  of  amounts  not  exceeding  £5,  which  the  plaintiff  alleged 
that  the  defendant  had  made  or  agreed  to  make  on  his  behalf  on  these 
terms  on  horses  which  ran  at  Sandown  Park  and  Newmarket  races 
in  October,  1888.  The  sum  claimed  was  the  excess  of  gains  over 
losses  shown  by  this  account,  after  deducting  the  defendant's  commis- 
sion of  2^  per  cent  on  the  former.  The  assistant  judge  left  the  case  to 
the  jury  as  regards  the  claim  for  damages,  and  the}'  found  a  verdict  for 
the  plaintiff  for  the  full  amount  claimed.     The  grounds  of  appeal  were 

1  In  Switzer  v.  Counett,  11  Mo.  88,  91  (1847),  McBride,  ,T.,  for  the  court,  said: 
"  Suppose  I  ride  to  town  and  put  my  ln)rse  in  a  livery-stable,  and  whilst  there  the 
keeper  of  the  stable  tells  me  that  there  is  an  individual  in  the  town  who  is  purchasing 
horses,  and  that  my  horse  answers  the  description  which  he  wishes  to  purchase,  and 
inquires  if  he  may  sell  him  my  horse.  I  reply  he  may,  provided  he  can  get  $100  for 
the  horse.  On  my  return  to  the  stable  he  offers  me  $80,  stating  that  he  sold  my 
horse  for  that  sum,  and  that  it  is  the  fair  market  value  of  the  horse.  M<ay  I  not 
have  an  action  against  him  to  recover  the  price  fixed  by  me  on  my  horse  ?  If  it  be 
my  right  or  privilege  to  place  a  value  upon  my  own  property,  I  certainly  can  do  so, 
even  should  the  price  thus  fixed  by  me  exceed  the  market  value." 

In  Wilson  v.  Wilson,  26  Pa.  393  (1856),  Lewis,  C.  J.,  for  the  court,  said:  "It  ia 
not  sufficient  that  the  deviation  was  not  material  if  it  appear  that  the  party  giving 
the  instructions  regarded  them  as  material,  iinless  it  be  shown  affirmatively  that  the 
deviation  in  no  manner  contributed  to  the  loss.  This  may  be  a  difficult  task  in  a  case 
like  the  present ;  but  the  defendant  voluntarily  assumed  it  when  he  substituted  his 
own  plan  for  that  prescribed  by  the  plaintiff." 

And  see  Short  v.  Skipwith,  1  Brockenbrough,  103  (1806)  ;  Williams  v.  Higgins, 
30  Md.  404  (1868). 

As  to  the  doctrine  that  an  emergency  may  justify  a  departure  from  instructions, 
Bee  Forrestier  v.  Bordman,  1  Story,  43,  51  (1839);  Greenleaf  v.  Moody,  13  Allen,  363 
(1866).— Ed. 


SECT.  I.]  COHEN    V.    KITTELL.  903 

that  the  action  was  not  maintainable,  and  that,  if  otherwise,  the  plaintiff 
was  not  entitled  to  more  than  nominal  damages. 

Candy^  Q.  C.  (Ilerbert  Reed  with  him),  for  the  defendant. 

Wildey  Wright  {McCulhigh  with  him),  for  the  plaintiff. 

HuDDLESTON,  B.  I  am  of  opinion  that  this  appeal  should  be  allowed. 
The  plaintiff  claims  damages  from  the  defendant  for  the  breach  of  a 
contract  of  agency,  into  which  he  is  alleged  to  have  entered  with  the 
plaintiff  as  his  principal.  It  must  be  taken  as  found  by  the  verdict, 
that  the  plaintiff  employed  the  defendant  to  make  certain  bets  on  his 
account,  and  that  the  defendant  did  not  make  the  bets  which  he  was 
thus  employed  to  make.  The  case  is  apparently  new.  Certainly  the 
recent  cases  arising  out  of  similar  transactions  do  not  apply,  as  they  are 
cases  in  which  the  agent  did  make  the  bets. 

Suppose  the  agent  had  done  so  here,  what  would  have  been  his  posi- 
tion? In  that  case,  had  he  won  and  been  paid,  Beeston  r.  Beeston. 
1  Ex.  D.  13,  and  Bridger  v.  Savage,  15  Q.  B.  D.  363,  show  that  he 
must  have  paid  the  money  over  to  the  plaintiff.  Had  he  lost  and  paid, 
Read  v.  Anderson,  15  Q.  B.  D.  779,  in  my  opinion  shows  that  the 
plaintiff  must  have  recouped  him.  On  the  other  hand,  if  he  had  won, 
but  the  third  persons  had  not  paid  him,  the  effect  of  8  &  9  Vict.  c.  109, 
§  18,  must  have  been  to  leave  him  without  an}-  legal  remedy.  That 
section  enacts  "  that  all  contracts  or  agreements,  whether  b}'  parol  or 
in  writing,  b}-  way  of  gaming  or  wagering,  shall  be  null  and  void  ;  and 
that  no  suit  shall  be  brought  or  maintained  in  any  court  of  law  or  equity 
for  recovering  any  sum  of  money  or  valuable  thing  alleged  to  have  been 
won  upon  an}-  wager."  The  contract  of  agency,  therefore,  for  the 
breach  of  which  the  plaintiff  sues  the  defendant,  is  one  b}-  which  the 
plaintiff  employed  the  defendant  to  enter  into  contracts  which,  if  made, 
would  have  been  null  and  void,  and  the  performance  of  which  could  not 
have  been  enforced  by  an}-  legal  proceeding  taken  by  the  defendant  for 
the  benefit  of  the  plaintiff.  The  breach  of  such  a  contract  by  the  agent 
can  give  no  right  of  action  to  the  principal.  I  see  no  difference  between 
the  case  and  the  emplo3-ment  of  an  agent  to  do  an  illegal  act  The 
section  of  Stor}-  on  Agency,  which  has  been  cited,  shows  that  the  right 
of  the  plaintiff  to  have  recovered  in  respect  of  the  contract  to  have  been 
made  b}'  the  agent  on  his  behalf  is  an  "essential  ingredient"  in  the 
case  against  the  agent  for  negligence  in  not  contracting.  In  this  case 
this  "essential  ingredient"  is  wanting,  and  Webster;'.  De  Tastet,  7 
T.  R.  157,  shows  that,  this  being  so,  the  consideration  urged  on  behalf 
of  the  plaintiff,  that  the  losers  of  the  bets  to  the  defendant  would 
probably  have  paid  them  as  debts  of  honor,  is  wholly  immaterial. 

Manisty,  J.  A  decision  in  favor  of  the  plaintiff  in  this  case  would 
still  further  defeat  the  object  of  this  statute,  which,  as  the  preamble 
shows,  was  to  add  to  the  strictness  of  the  law  with  respect  to  gambling. 
Since  the  act  passed,  however,  and  in  consequence,  as  I  cannot  but 
tliink,  of  some  of  the  decisions  upon  it,  the  practice  which  it  was  in- 
tended to  discountenance  has  greatly  increased,  and  that  with  results 


904  TENANT   V.    ELLIOTT.  [CHAP.  VIL 

of  a  most  disastrous  character,  as  regards  both  horseracing  and  trans- 
actions in  stocks.  The  contracts  avoided  by  the  18th  section  are  not, 
it  is  to  be  observed,  "  contracts  of  gaming  and  wagering,"  but  "  con- 
tracts by  tcay  q/' gaming  and  wagering."  These  words,  which  are  per- 
haps capable  of  a  different  interpretation,  have  been  held  not  to  apply 
to  contracts  between  principals  and  agents  by  which  the  agents  agree 
to  bet  with  third  persons  on  behalf  of  the  principals.  Doubtless  where 
the  gambling  transaction  is  a  thing  of  the  past,  the  bet  having  been 
won  or  lost,  and  the  money  having  been  received  or  paid,  as  tlie  case 
may  be,  by  the  agent,  it  would  be  unjust  that  he  should  not  in  the  one 
case  account  to,  and  in  the  other  case  be  recouped  by  his  principal. 
But  in  Read  u.  Anderson,  it  was  held  by  a  majority  of  the  Court  of 
Appeal  that  as  soon  as  a  bet  has  been  made  by  an  agent  in  his  own 
name  on  account  of  a  principal,  the  principal  cannot  revoke  the  authority 
to  pay  the  bet  should  it  be  lost,  because  forsooth  the  result  to  the  agent 
may  be  the  inconvenience  of  exclusion  from  Tattersall's.  The  decision 
is,  of  course,  binding  on  this  court,  but  I  personallj-  agree  with  the 
dissenting  judgment  of  the  Master  of  the  Rolls.  I  cannot  see  why  the 
position  of  the  agent  in  such  a  case  should  differ  from  that  of  a 
stakeholder. 

We  are  now  invited  to  go  a  step  further  and  to  hold  that  a  principal 
who  employs  an  agent  to  make  bets  on  his  account,  can  maintain  an 
action  for  negligence  against  the  agent  should  the  latter  I'efuse  to  bet 
for  him.  The  custom  of  Tattersall's  is  again  invoked,  this  time  to  make 
the  agent  responsible.  It  is  clear,  however,  that  the  action  cannot  be 
maintained.  It  is  unnecessary'  to  refer  at  length  to  the  legal  question, 
which  is  discussed  in  Story  on  Agency,  7th  ed.,  §§  222,  330.  It  is 
sufficient  to  say  that  the  effect  of  Statute  8  &  9  Vict.  c.  109,  §  18,  being 
to  render  bets  irrecoverable  at  law,  a  principal  can  suffer  no  real  loss 
through  the  refusal  of  his  agent  to  make  bets  on  his  account. 

Appeal  allowed. 


SECTION  II. 

Loyalty, 

TENANT  V.  ELLIOTT. 

Common  Pleas.     1797. 

[1  fi.  ^P.  3.] 

Assumpsit  for  money  had  and  received.     Verdict  for  the  plaintiff. 

The  defendant,  being  a  broker,  effected  an  insurance  for  the  plaintiff, 
a  British  subject,  on  goods  from  Ostend  to  the  East  Indies,  on  board 
the  "  Koenitz,"  an  Imperial  ship.     The  ship  being  lost,  the  under* 


SECT.  II.]  TENANT  V.   ELLIOTT.  905 

writers  paid  the  amount  of  the  insurance  to  the  defendant,  who,  with- 
out any  intimation  from  them  to  retain  the  money,  refused  to  pa}'  it 
over  to  the  plaintiff. 

iS/iephtrd^  Serjt. ,  now  moved  for  a  rule  to  show  cause  wh^'  the  ver- 
dict in  this  case  should  not  be  set  aside,  and  a  nonsuit  entered.  By 
7  Geo.  1,  St.  1,  c.  21,  §  2,  it  is  enacted  "That  all  contracts  and 
agreements  whatsoever  made  or  entered  into  b\'  an}'  of  his  Majesty's 
subjects,  or  any  person  or  persons  in  trust  for  them,  for  or  upon  the 
loan  of  any  moneys  b}'  way  of  bottomry  on  an}'  ship  or  ships  in  the 
service  of  foreigners,  and  bound  or  designed  to  trade  in  the  East 
Indies,  or  parts  in  the  said  act  before  mentioned  ;  and  all  contracts 
and  agreements  whatsoever  made  by  any  of  his  Majesty's  subjects,  or 
any  person  or  persons  in  trust  for  them,  for  the  loading  or  supplying 
any  such  ship  or  ships  with  a  cargo  or  lading  of  any  sort  of  goods, 
merchandise,  treasure,  or  effects,  or  with  any  provisions,  stores,  or 
necessaries,  shall  be  and  are  hereby  declared  to  be  void."  Now  the 
goods  on  board  the  "•  Koenitz  "  being  the  property  of  the  plaintiff,  a 
subject  of  Great  Britain,  and  the  "Koenitz"  being  a  foreign  ship, 
bring  this  transaction  within  the  provisions  of  the  above  act.  In  Cam- 
den V.  Anderson,  6  Term  Rep.  730,  it  was  determined  that  a  policy 
effected  in  contravention  of  an  act  of  Parliament,  made  for  the  purpose 
of  protecting  tho  monopoly  granted  to  the  East  India  Company,  was 
void.  The  voyage,  being  illegal,  makes  the  policy  illegal  also.  If,  then, 
the  plaintiff  could  not  have  succeeded  in  an  action  against  the  under- 
writers, neither  can  he  recover  against  the  present  defendant.  The 
defendant  is  in  the  nature  of  a  stakeholder  ;  and  the  plaintiff's  right  of 
action  being  grounded  on  his  claim  against  the  underwriters,  he  must 
now  stand  precisely  in  the  same  situation  as  if  he  had  immediately 
sued  them. 

BuLLKH,  .J.  Is  the  man  who  has  paid  over  money  to  another's  use 
to  dispute  the  legality  of  the  original  consideration?  Having  once 
waived  the  legality,  the  money  shall  never  come  back  into  his  hands 
again.  Can  the  defendant  then  in  conscience  keep  the  money  so  paid? 
For  what  purpose  should  he  retain  it?  To  whom  is  he  to  pay  it  over, 
who  is  entitled  to  it,  but  the  plaintiff  ? 

Eyre,  C  J.  The  defendant  is  not  like  a  stakeholder.  The  question 
is  whether  he  who  has  received  money  to  another's  use  on  an  illegal 
contract  can  be  allowed  to  retain  it,  and  that  not  even  at  the  desire  of 
those  who  paid  it  to  him  ?     I  think  he  cannot. 

The  defendant  took  notJdng  hy  his  motion} 

'  In  Baldwin  r.  Potter,  46  Vt.  402  (1874),  the  plaintiffs  put  up  packages  containing 
candy  and  prizes,  and  employed  the  defendant  to  sell  on  commission  Loxes  of  such 
packages.  The  defendant  made  sales  to  persons  who  knew  what  prizes  were  contained 
in  each  hox,  and  who,  as  the  plaintiffs  and  defendant  knew,  intended  to  sell  the  pack- 
ages at  retail  in  defiance  of  statutes  prohibiting  lotteries.  It  was  held  that  for  the 
purchase-money  received  hy  the  defendant  the  plaintiffs  could  maintain  an  action  in 
general  assumpsit.  Pierpoint,  C.  J.,  for  the  court,  said  :  "  We  do  not  find  it  neces- 
sary ...  to  consider  .  .  .  whether  the  contract  for  the  sale  of  the  property  referred 


506  TENANT   V.   ELLIOTT.  [CHAP.  VIL 

to,  by  the  plaiutiffs,  to  the  several  persons  who  purchased  it,  were  contracts  made  in 
violation  of  law,  and  therefore  void,  or  not.  1'his  action  is  not  between  the  parties  to 
those  contracts :  neither  is  it  founded  upon,  or  brought  to  enforce  them.  If  tiiose 
contracts  were  illegal,  the  law  will  not  aid  either  party  in  respect  to  them  ;  it  will  not 
allow  the  seller  to  sue  for  and  recover  the  price  of  tiie  property  sold,  if  it  has  not  been 
paid ;  if  it  has  been  paid,  the  purchaser  cannot  sue  for  and  recover  it  back.  The  facts 
in  this  case  show  that  the  purchasers  paid  the  money  to  the  plaintiffs,  —  not  to  the 
plaintiffs  personally,  but  to  the  defendant  as  the  agent  of  the  plaintiffs,  authorized  to 
receive  it.  When  the  money  was  so  paid,  it  became  the  plaintiffs'  money ;  and  when 
it  was  received  by  the  defendant  as  such  agent,  the  law,  in  consideration  thereof,  im- 
plies a  promise  on  the  part  of  the  defendant  to  pay  it  over  to  his  jjrincipals,  the  plain- 
tiffs. It  is  this  obligation  that  the  present  action  is  brought  to  enforce :  no  illegality 
attaches  to  this  contract.  But  the  defendant  insists  that,  inasmuch  as  the  plaintiff 
could  not  have  enforced  the  contracts  of  sale  as  between  himself  and  the  purchaser, 
therefore,  as  the  purchaser  has  performed  the  contracts  by  paying  the  money  to  the 
plaintiffs  through  me,  as  their  agent,  I  can  now  set  up  the  illegality  of  the  contract  of 
sale  to  defeat  an  action  brought  to  enforce  a  contract  on  my  part  to  pay  the  money 
that  I  as  agent  receive,  over  to  my  principal.  In  other  words,  because  my  principal 
did  not  receive  the  money  on  a  legal  contract,  I  am  at  liberty  to  steal  the  money,  ap- 
propriate it  to  my  own  use,  and  set  my  principal  at  defiance.  We  thiuii  the  law  is 
well  settled  otherwise;  and  the  fact  that  the  defendant  acted  as  the  agent  of  the 
plaintiffs  in  obtaining  orders  for  the  goods  does  not  vary  the  case." 

In  Bridges  v.  Savage,  15  Q.  B.  D.  363  (C.  A.  1885),  Brett,  M.  R.,  said:  "The 
plaintiff  employed  the  defendant  to  make  bets  for  him,  and  if  he  should  win  on  those 
bets  to  receive  the  money  payable  thereon,  and  to  pay  the  same  over  to  him,  the 
plaintiff;  and  the  defendant  for  a  consideration,  viz.,  the  commission  which  he 
charged,  agreed  to  do  so.  The  defendant  tliercupon  made  bets  on  certain  horses. 
It  is  true  that  when  he  won  on  those  bets  the  persons  with  whom  he  made  them 
might  not  have  paid ;  but  they  did  pay,  and  therefore  after  that  any  dispute  as  to 
their  validity  was  gone.  Tlie  matter,  therefore,  stands  thus :  the  defendant  has  re- 
ceived money  which  he  contracted  with  the  plaintiff  to  hand  over  to  him  when  he  had 
received  it.  That  is  a  perfectly  legal  contract."  And  Bowen,  L.  J.,  said  :  "  It  is  to 
be  observed  that  the  original  contract  of  betting  is  not  an  illegal  one,  but  only  one 
which  is  void.  If  the  person  who  has  betted  pays  liis  bet,  he  does  nothing  wrong ;  he 
only  waives  a  benefit  which  the  statute  has  given  to  him,  and  confers  a  good  title  to 
the  money  on  the  person  to  whom  he  pays  it.  Therefore  when  the  bet  is  paid  the 
transaction  is  completed ;  and  when  it  is  paid  to  an  agent,  it  cannot  be  contended  that 
it  is  not  a  good  payment  for  his  principal.  If  not,  how  monstrous  it  would  be  that  the 
agent,  who  lias  received  money  which  belongs  to  his  principal,  and  which  he  received 
for  his  principal,  and  only  on  that  account,  should  be  allowed  to  say  that  the  payment 
was  bad  and  void.  The  truth  is  that  the  contract  under  which  he  received  the  money 
for  his  principal  is  not  affected  by  the  collateral  contract  under  which  the  money  was 
paid  to  him." 

And  see  Farmer  i:  Russell,  1  B.  &  P.  296  (1798) ;  Armstrong  i'.  Toler,  11  Wheat. 
258,  271  (1826);  Sharp  v.  Taylor,  2  Phil.  801  (1849);  Brooks  v.  Martin,  2  Wall.  70 
(1863). 

Compare  Snell  v.  Dwight,  120  Mass.  9,  15-19  (1876). 

See  also  Biddle  u.  Bond,  6  B.  &  S.  225  (1865).  — Ed. 


SECT.  II.]  THOMPSON  V.    HAVELOCK.  907 


THOMPSON  V.  HAVELOCK 
Nisi  Prius.     1808. 

[1  Camp.  527.] 

This  was  an  action  for  mone}'  had  and  received. 

In  April,  1800,  tlie  plaintiff  was  at  Smj-rna  as  captain  of  the  ship 
"Lord  Nelson,"  of  which  the  defendant  was  owner.  There  he  en- 
tered into  an  agreement  with  the  deput}-  commissar\-  of  the  English 
army  in  Egypt,  to  let  the  ship  to  government  for  six  months.  Having 
stipulated  that  his  owner  should  have  4:0s.  per  ton  per  month,  he  re- 
quired that  he  himself  should  be  allowed  the  usual  primage.  The 
commissary  refused  to  make  an}'  allowance  b}'  wa}'  of  primage,  the 
freight  being  so  very  high ;  but,  as  he  expected  great  assistance  from 
the  plaintiiT's  skill  and  activit}-  in  managing  the  transport  service  in 
that  quarter,  he  agreed,  that  instead  of  primage.  Captain  Thompson, 
for  his  personal  exertions  in  the  public  service,  should  be  allowed  Is. 
per  ton  per  month  upon  the  tonnage  of  the  "Lord  Nelson."  The 
plaintiff  and  the  ship  remained  in  the  Mediterranean  under  this  con- 
tract about  nine  months  ;  and  the  defendant  afterwards  received  from 
government  the  mone}-  which  they  had  thus  earned.  The  question  was, 
whether  the  plaintiff  as  captain,  or  the  defendant  as  owner  of  the  ship, 
was  entitled  to  the  Is.  per  ton  per  month.  On  the  part  of  the  plaintiff 
it  was  proved  that,  by  the  usage  of  the  Mediterranean  trade,  if  he  had 
brought  home  a  cargo  of  merchandise  from  Smvrna  (which  he  was 
about  to  do  when  he  entered  into  tlie  service  of  government) ,  he  would 
have  been  entitled  to  a  primage  of  £5  per  cent,  upon  the  freight,  and 
that  while  he  continued  in  the  service  of  government,  his  personal 
exertions,  independent!}-  of  the  ship,  were  of  considerable  benefit  to 
the  public. 

Lord  Ellenborough.  Is  it  contended  that  a  servant  who  has  en- 
gaged to  devote  the  whole  of  his  time  and  attention  to  my  concerns,  may 
hire  out  his  services,  or  a  part  of  them,  to  another?  It  would  have  been 
a  different  thing  if  the  owner  had  been  suing  for  this  money  ;  but  I  am 
clearly  of  opinion  that  at  all  events  the  present  plaintiff'  has  no  right 
to  it.  Lender  this  contract,  he  must  have  been  taken  from  superintend- 
ing the  defendant's  ship  ;  and  I  don't  know  how  far  it  might  go,  if  such 
earnings  could  be  recovered  in  a  court  of  justice.  No  man  should  be 
allowed  to  have  an  interest  against  his  duty.  I  will  assume  that  the 
plaintiff  obtained  as  high  a  freight  as  possible  for  his  owners,  and  that 
his  services  to  government  were  meritorious.  Still  there  would  be  no 
security  in  any  department  of  life  or  of  business,  if  servants  could 
legally  let  themselves  out  in  whole  or  in  part.  My  opinion  upon  the 
subject  is  quite  decisive ;  and  if  it  be  doubted,  I  beg  that  a  bill  of 
exceptions  may  be  tendered. 


908  ROBINSON   V.   MOLLETT.  [CHAP.  VII. 

Tlie  plaintiff's  counsel  acquiesced  in  this  decision  ;  and,  upon  the 
recommendation  of  the  chief  justice,  it  was  agreed  that  the  defendant 
should  make  the  plaintiff  an  allowance  for  primage.^ 

ParJc  and  Abbott  for  the  plaintiff. 

The  Attornej'-Geueral,  Garrotc,  and  Marryat  for  the  defendant 


ROBINSON,  Appellant,   v.  MOLLETT  and  others, 
Respondents. 

House  of  Lords.     1875. 

[L.  R.  7  H.  L.  802.] 

This  was  an  appeal  against  a  judgment  given  in  the  Court  of  Com- 
mon Pleas  for  the  plaintiffs  (now  the  respondents)  on  a  case  stated, 
which  judgment,  through  an  equal  division  of  opinion  among  the 
judges  in  the  Exchequer  Chamber,  had  stood  affirmed. 

Robinson  was  a  merchant  at  Liverpool ;  MoUett,  Bull,  &  Unsworth 
were  tallow  brokers  in  London.  On  the  2d  of  April,  1869,  Unsworth 
was  in  Liverpool  and  saw  Robinson,  who  then  gave  him  an  order  to 
purchase  for  him  (Robinson)  50  tons  of  tallow  at  46s.  Qd.  On  the 
29th  of  April  Robinson  sent  up  from  Liverpool  an  order  to  MoUett  & 
Co.  to  purchase  for  him  200  tons  of  tallow  (100  tons  for  himself,  100 
tons  for  a  friend),  to  book  the  whole  to  him,  and  to  make  the  purchase 
(not  at  a  specified  price,  but)  on  the  "  best  terms."  The  two  orders 
were  for  the  June  delivery. 

Mollett  &  Co.  had  before  bought,  and  did  afterwards  bu}',  from 
various  persons  considerable  quantities  of  tallow,  none  specifically  for 
Robinson,  but  proposed  to  suppl}'  the  whole  250  tons,  at  the  June 
deliveiy,  out  of  their  various  purchases.  In  their  bought  notes,  sent 
immediately  after  each  of  Robinson's  orders  had  been  given,  Mollett 
&  Co.  said,  "We  have  this  day  bought  for  3'our  account,"  and  signed 
these  notes  with  the  addition  of  the  words,  "  Mollett,  Bull,  &  Uns- 
worth, sworn  brokers."  The  price  of  tallow  fell  in  the  market  between 
the  dates  of  the  orders  and  the  time  for  the  June  delivery.  When 
that  time  arrived,  Mollett  &  Co.  tendered  250  tons  of  tallow,  but 
Robinson  refused  to  accept  the  tallow  so  tendered.  Mollett  &  Co. 
sold  the  tallow,  and  then  brought  assumpsit  to  recover  the  difference, 
which  amounted  to  £362,  insisting  that  the}-  were  entitled  to  do  so  in 
virtue  of  the  established  usage  of  the  London  tallow  market. 

The  first  count  of  the  declaration  alleged  that  the  defendant  em- 
ployed the  plaintiffs  as  his  agents  and  brokers  to  purchase  the  tallow, 

^  See  Co.  Lit.  117  (a),  Hargrave's  note  (1). 

See  also,  Diplock  v.  Blackburn,  .3  Camp.  43  (1811). 

Compare  ^tna  Ins.  Co.  v.  Church,  21  Ohio  St.  492,  498  (1871).  —  Ed. 


SECT.  II.]  ROBINSON   V.    MOLLETT.  909 

and  undertook  to  accept  and  pay  for  the  tallow  according  to  the  con- 
tract, and  would  indemnify  the  plaintiff  against  liability  or  loss  the}* 
might  sustain  by  having  made  the  contract  for  the  defendant ;  that  the 
plaintiffs  did,  in  pursuance  of  tlie  said  empioyment,  and  upon 
the  terms  thereof,  purchase  the  tallow.  Averment  of  performance  of 
all  the  conditions.  Breach,  that  the  defendant  refused  to  accept, 
whereby  plaintiffs  sustained  damage  by  reason  of  the  price  of  tallow 
having  fallen,  etc.,  and  defendant  refused  to  indemnify  the  plaintiffs. 

The  second  count  alleged  an  agreement  between  the  plaintiffs  and 
the  defendant,  that  the  plaintiffs  should  sell  to  him,  and  that  he  should 
buy  and  accept  from  them,  the  tallow,  etc. ,  and  stated  the  sale  by  the 
plaintiffs  to  the  defendant,  and  the  refusal  to  accept;  and  then  there 
were  a  count  for  goods  bargained  and  sold  and  the  money  counts. 

The  defendant  traversed  all  tlie  allegations  in  the  first  and  second 
counts,  and  then  pleaded  exoneration,  and  discharge,  never  indebted, 
payment,  and  set-off.     Issue  thereon. 

The  cause  was  tried  before  Lord  Chief  Justice  Bovill  at  the  Lon- 
don sittings  after  Michaelmas,  1869,  when  it  appeared  that  the  plaintiffs 
and  defendant  had  had  several  dealings  together  on  former  occasions  ; 
that  the  course  which  the  plaintiffs  had  pursued  on  this  occasion 
(though  tW  defendant  was  not  shown  to  have  known  the  fact)  was 
that  v^^hich  they  had  ordinaril}'  pursued  in  their  dealings  ;  that  in  these 
cases  the  principals'  names  were  not  disclosed  on  either  side  ;  and  that 
by  these  notes  the  plaintiffs  became  bound  personally  to  the  sellers  for 
the  fulfilment  of  the  contracts. 

The  14th  paragraph  of  the  case  stated  that  "settlements  of  trans- 
actions in  tallow  are  usuall}-  made  in  London  in  the  months  of  April, 
May,  and  June  respectively,  and  on  the  Maj'  settlement  Messrs.  Simp- 
son &  Co.,  persons  from  whom  the  plaintiffs  had  bought  some  of  the 
tallow  intended  to  be  supplied  to  the  defendant,  failed,  and  were  unable 
to  meet  their  engagements.  Thereupon  the  plaintiffs  and  Simpson  & 
Co.,  having  many  transactions  together  outstanding  in  respect  of  the 
sale  and  purchase  of  tallow,  balanced  and  settled  an  account  thereof, 
wherein  the  quantity  of  tallow  sold  was  set  off  against  the  quantity  of 
tallow  purchased  b}'  the  plaintiffs  on  account  of  Simpson  &  Co., 
whereby  it  appeared  that  the  plaintiffs  had  sold  between  100  and  200 
tons  more  than  they  had  purchased  on  that  account." 

The  defendant  admitted  that  the  tallow  tendered  was  in  accordance 
with  the  contracts. 

The  29th  paragraph  of  the  case  was  in  these  terms:  "At  the  trial 
it  was  proved  that  there  exists  an  established  custom  in  the  London 
tallow  trade  for  brokers,  when  they  receive  an  order  from  a  principal 
for  the  purchase  of  tallow,  to  make  a  contract  or  contracts  in  their 
own  names  without  disclosing  their  principals,  and  also  to  make  such 
contracts  either  for  the  specific  quantity  of  tallow  so  ordered,  or  to 
include  such  order  with  others  the}'  maj'  have  received  in  a  contract  for 
the  entire  quantitj^,  or  in  any  quantities  at  their  convenience,  at  the 


910  KOBINSON   V.    MOLLETT.  [CHAP.  VIL 

same  time  exchanging  bouglit  and  sold  notes  with  the  selling  brokers 
as  above  described  in  the  present  case,  and  passing  to  their  principals 
a  bought  note  for  the  specific  quantit}-  ordered  by  them,  as  before 
described  in  this  case,-  and  that  when  a  broker  so  purchases  in  his  own 
name  he  is  personal!}'  bound  by  the  contract,  and  that  on  the  usual 
settling-days  the  brokers  balance  between  themselves  the  purchases 
and  sales  so  made,  and  make  or  receive  deliveries  to  or  from  their 
principals,  as  the  case  may  be,  or  if  their  principals  refuse  to  accept 
or  deliver,  then  to  sell  or  bu}'  against  them,  as  the  case  may  be,  and 
charge  them  with  the  loss,  if  any,  or  if  delivery  is  not  required  on 
either  side,  then  any  difference  which  ma}'  arise  from  a  rise  or  fall  in 
the  market  is  paid  by  the  one  to  the  other.  This  custom  does  not 
exist  at  Liverpool,  and  was  unknown  to  the  defendant.  The  whole  of 
the  transactions  and  dealings  in  the  present  case  were  carried  out  in 
accordance  with  this  custom." 

A  verdict  was  taken  for  the  plaintiffs  for  £362,  subject  to  leave 
reserved  to  enter  a  nonsuit.  The  case  was  afterwards  argued,  and  the 
judges  differed  in  opinion,  Lord  Chief  Justice  Bovill  and  Mr.  Justice 
Montague  Smith  being  of  opinion  that  the  plaintiffs  were  entitled 
to  have  the  verdict  entered  for  them,  and  Mr.  Justice  Willes  and  Mr. 
Justice  Keating  being  of  opinion  that  a  nonsuit  ought  to  be  entered. 
L.  R.  5  C.  P.  646.  On  appeal,  the  judges  in  the  Exchequer  Chamber  were 
also  equall}'  divided  in  opinion,  L.  R.  7  C.  P.  84,  and  so  the  judgment 
of  the  court  below  stood  affirmed.     This  appeal  was  then  brought. 

The  judges  were  summoned,  and  Mr.  Justice  Blackburn,  Mr.  .Justice 
Mellor,  Mr.  Justice  Brett,  Mr.  Baron  Cleasbt,  Mr.  Justice  Grove, 
and  Mr.  Baron  Amphlett  attended. 

Mr.  Cohen,  Q.  C.  {Mr.  C.  F.  Butt,  Q.  C,  and  Mr.  IT.  Davidson 
were  with  him),  for  the  appellant  Robinson. 

Mr.  Benjamin,  Q.  C,  and  Mr.  Watkin  Williams,  Q.  C,  for  the 
defendants  in  error. 

The  Lord  Chancellor  proposed  the  following  question  to  the 
judges :  Whether  the  judgments  of  the  Courts  of  Common  Pleas  and 
Exchequer  Chamber  were  right? 

Mellor,  J.  The  further  consideration  of  this  case,  and  the  argu- 
ment addressed  to  your  lordships  by  the  learned  counsel  at  the  bar, 
have  failed  to  convince  me  that  the  opinion  which  I  expressed  in  the 
Court  of  Exchequer  Chamber,  L.  R.  7  C.  P.  99,  is  erroneous. 

Indeed,  I  feel  more  strongly-  than  I  there  expressed  myself,  as  to  the 
mischievous  consequences  likely  to  result  from  permitting  evidence  of 
usages  to  be  admitted  beyond  the  limit  already  prescribed  by  decided 
cases,  and  I  have  alwaj's  understood  that  limit  to  be,  that  such  evi- 
dence is  admissible  onl}'  to  explain  mercantile  expressions  and  to  add 
incidents,  or  to  annex  usual  terms  and  conditions  which  are  not  in- 
consistent with  the  written  terms  between  the  parties.  Brown  v.  Byrne, 
3  El.  &  Bl.  703-715  ;  Humfrey  v.  Dale,  7  El.  &  Bl.  266,   274,"^  and 


SECT.  II.]  ROBINSON   V.   MOLLETT.  911 

that  it  cannot  be  admitted  to  convert  a  broker  employed  to  buy  for 
his  employer,  into  a  principal  to  sell  to  him,  unless  in  cases  where 
the  person  employing  the  broker  knows  and  assents  to  the  deal- 
ing on  the  footing  of  such  custom.  The  custom  with  regard  to 
the  mode  of  buying  and  selling  is  described  in  the  case,  and  I  sub- 
mit, with  deference  to  your  lordships'  consideration,  that  it  would  be 
difficult  to  conceive  any  practice  or  custom  of  a  market  so  opposed  to 
the  well-understood  character  and  authority'  of  a  broker.  In  the  lan- 
guage of  my  brother  Ilannen,  in  the  court  below,  L.  R.  7  C.  P.  98  : 
"  It  appears  to  me  to  amount  to  a  custom  for  a  broker  in  the  tallow 
trade  in  London,  to  do  soraetliing  entirely-  inconsistent  with  the  char- 
acter of  a  broker,  viz.,  to  convert  himself,  from  an  agent  to  buy  for 
his  employer,  into  a  principal  to  sell  to  him." 

In  the  present  case  the  mode  in  which  the  contract  is  said  to  have 
been  performed  was  not  by  purchasing  50  tons  of  tallow  on  account  of 
the  appellant,  or  actually  appropriating  to  him  50  tons  from  the  larger 
purchase  made  by  the  respondents  from  Simpson  &  Co.  as  stated  in  the 
case,  but,  in  fact,  the  respondents  did  no  more  than  form  an  intention 
to  appropriate  50  tons  out  of  tlie  150  tons  so  purchased  by  them  from 
Simpson  &  Co.,  but  which,  according  to  the  usage  set  out,  would,  as 
stated  by  my  brother  Cleasbv,  L.  R.  7  C.  P.  95,  "  only  form  an  item  in 
the  tallow  account  between  Simpson  &  Co.  and  the  i^laintiff." 

By  this  course  of  dealing  the  defendants  would  lose  the  responsi- 
bility of  an}'  other  "  principal  "  than  his  "  broker." 

It  is  said  by  Willes,  J.,  in  his  judgment  in  the  Court  of  Common 
Pleas,  L.  R.  5  C.  P.  655,  that  "  it  is  an  axiom  of  the  law  of  principal 
and  agent  that  a  broker  employed  to  sell  cannot  himself  become  the 
buyer,  nor  can  a  broker  employed  to  buy  become  himself  the  seller, 
without  distinct  notice  to  the  principal,  so  that  the  latter  ma}-  object  if 
he  think  i)roper  ;  a  different  rule  would  give  the  broker  an  interest 
against  his  duty." 

I  agree  in  this,  and  think  that  although  a  custom  of  trade  may  con- 
trol the  mode  of  performance  of  a  contract,  it  cannot  change  its 
intrinsic  character. 

My  experience  as  a  judge  convinces  me  of  the  necessity  of  keeping 
within  strict  limits  the  shifting,  varying,  and  constantly  expanding 
usages,  by  which  it  is  sought  to  change  or  affect  the  written  terms  of 
contracts  of  this  description. 

A  person  who  authorizes  a  broker  to  buy  in  a  market  the  usages  ot 
which  are  not  known  to  him,  may  reasonably  expect  to  find  that  the 
mode  of  dealing  in  that  market  may  not  be  in  all  respects  such  as  he 
would  anticipate,  but  he  can  hardly  be  supposed  to  contemplate  thot 
the  univorsjil  acceptance  of  the  nature  and  dealing  of  a  broker  to  buy 
for  him  will  be  converted  into  a  principal  to  sell  to  him. 

As  the  usage  in  question  appears  to  me  wholly  inconsistent  with  the 
written  terms  between  the  parties,  I  answer  your  lordships*  question 


912  ROBINSON   V.    MOLLETT.  [CHAP.  VII. 

by  sa3'ing  that  in  ray  opinion  the  judgments  of  the  Courts  of  Common 
Pleas  and  Exchequer  were  not  right  and  ought  to  be  reversed.^ 

Lord  Chelmsford.  My  Lords,  the  great  difference  of  judicial  opin- 
ion in  this  case  has  led  to  the  extraordinary-  result  of  there  being 
bothing  but  a  formal  judgment  given  in  both  the  courts  below.^  .  .  . 

In  the  arguments  and  in  the  judgments  in  this  case,  it  seems  to 
have  been  taken  for  granted  that  the  custom  applies  in  the  case  of  a 
single  transaction  of  a  broker  buying  in  the  market  upon  the  order  of 
a  principal.  But  upon  a  careful  examination  of  the  terms  of  the 
custom  as  stated,  it  appears  to  me  that  it  merely  regulates  the  deal- 
ings of  brokers  amongst  themselves,  in  buying  and  selling  as  principals, 
and  the  mode  of  adjusting  and  settling  accounts  with  each  other,  and 
that  no  part  of  it  is  applicable  to  the  ordinar}'  employment  of  a  broker 
engaged  to  bu}-  for  a  real  principal. 

Assuming,  however,  that  the  custom  would  have  applied  in  the 
present  case  if  it  had  been  known  to  the  appellant  at  the  time  of  era- 
plo3'ing  the  respondents  as  his  brokers,  the  question  arises  whether  it 
is  of  such  a  nature  as  to  be  binding  on  a  person  who  is  ignorant  of  its 
existence,  by  merely  employing  a  broker  to  buy  for  him  in  the  market 
where  the  custom  prevails. 

The  effect  of  this  custom  is  to  change  the  character  of  a  broker,  who 
is  an  agent  to  buj'  for  his  employer,  into  that  of  a  principal  to  sell  to 
him.  No  doubt  a  person  employing  a  broker  ma}'  engage  his  services 
upon  any  terms  he  pleases  ;  and  if  a  person  employs  a  broker  to  trans- 
act for  him  upon  a  market  with  the  usages  of  which  the  principal  is 
unacquainted,  he  gives  authority  to  the  broker  to  make  contracts  upon 
the  footing  of  such  usages,  provided  the}'  are  such  as  regulate  the 
mode  of  performing  the  contracts,  and  do  not  change  their  intrinsic 
character.  It  was  not  contended  in  the  present  case  that  if  the  re- 
spondents were  employed  in  the  ordinary  character  of  brokers,  thej 
had  performed  their  duty  to  their  employer.  Of  course,  if  the  appel- 
lant knew  of  the  existence  of  the  usage,  and  chose  to  employ  the 
respondents  without  any  restriction  upon  them,  he  might  be  taken  to 
have  authorized  them  to  act  for  him  in  conformity  to  such  usage.  .  .  . 

I  submit  to  your  lordships,  that  the  judgments  of  the  Common  Pleas 
and  of  the  Exchequer  Chamber  ought  to  be  reversed,  and  the  judg- 
ment entered  for  the  defendant  Robinson.' 

Judgment  of  the  Court  of  Exchequer  Chamber  reversed^ 
and  judgment  entered  for  the  defendant.*" 

1  Brett,  J.,  Cleasbt,  B.,  and  Grove,  J.,  also  gave  opinions  for  reversal. 
Blackburn,  J.,  gave  an  opinion  for  affirmance.     Amphlett,  B.,  also  dissented 

—  Ed. 

2  From  this  opinion  have  been  omitted  passages  stating  and  discussing  the 
facts.  —  Ed. 

^  The  Lord  Chancellor  (Lord  Cairns),  Lord  Hatherley,  and  Lord  O'Hagan 
concurred  without  giving  formal  opinions.  —  Ed. 

*  On  the  question  whether  an  agent  can  ever  sell  his  own  property  to  his  principal, 


SECT.  II.]  BELL   V.   McCONNELL.  913 


BELL   V.    McCONNELL. 
Supreme  Court  of  Ohio.     1881. 

[37  Ohio  St.  396.] 

Error  to  the  District  Court  of  Mahoning  County. 

The  original  action  was  brought  by  Arthur  B.  McConnell,  a  real- 
estate  broker,  to  recover  certain  commissions  claimed  to  have  been 
earned  in  making  an  exchange  for  the  defendants,  William  Bell  and 
others,  now  plaintiffs  in  error,  of  certain  real  estate,  to  wit,  certain 
city  lots,  with  one  Augustus  Neal,  for  certain  other  real  estate,  upon 
terms  satisfactory  to  the  defendants,  upon  an  express  agreement  for 
commissions  at  the  rate  of  three  per  cent  of  the  value  of  the  property 
exchanged. 

Tlie  defendants,  by  answer,  among  other  things,  alleged  that,  before 
the  alleged  employment  by  the  defendants,  the  plaintiff  had  been  em- 
ployed by  said  Neal  to  sell  or  exchange  a  certain  farm  of  said  Neal, 
to  wit,  the  same  property  given  in  exchange  to  defendants,  upon  such 
terms  as  might  be  approved,  for  an  agreed  compensation  at  the  rate  of 
four  per  cent  of  the  value  thereof;  and  that,  at  the  time  said  exchange 
was  effected,  said  Neal  had  no  knowledge  or  information  of  the  alleged 
employment  of  the  plaintiff  by  defendants. 

The  plaintiff,  by  reply,  alleged,  in  effect,  that  said  Neal,  at  the  time 
said  exchange  was  negotiated,  had  knowledge  of  his  employment  by 
the  defendants. 

On  the  trial  testimony'  was  offered  b}-  each  part}-  tending  to  prove 
the  issue  in  accordance  with  the  respective  allegations ;  and  there- 
upon the  plaintiff  requested  the  court  to  charge  the  jury  as  follows  : 

"That  if  the  jur}-  find  from  the  evidence  that  said  defendants  em- 
plo\-ed  said  plaintiff  to  act  as  their  agent  in  the  exchange  of  the 
propert}'  mentioned  and  described  in  the  petition  for  the  farm  of  Mr. 
Neal,  located  in  said  township  of  Boardman,  or  emploj'ed  him  to  aid 
and  assist  in  such  exchange,  and  agreed  to  pay  him  three  per  cent 
commission  on  said  propert}',  and  at  the  same  time  knew  that  said 
plaintiff  was  the  agent  of  said  Neal  for  the  sale  or  exchange  of  said 
farm,  and  that  he  was  acting  as  his  agent,  and  that  said  defendant 
assented  thereto  and  agreed  to  pay  said  commission,  and  that  said 
Neal  knew  that  said  plaintiff  was  acting  agent  of  said  defendant  in 

see  Rothschild  i*.   Brookman,  2   Dow  &  Clark,  188   (1831);  Gillett  v.   Peppercorne, 
3  Beav.  78  (1840)  ;  Conkey  v.  Bond,  36  N.  Y.  427  (1867). 

On  the  question  whether  the  agent  can  ever  become  tlie  purchaser  of  property  en- 
trusted to  him  by  his  principal,  see  Lowther  v.  Lowther,  13  Ves.  Jr.  9.0,  103  (1806)  ; 
Rothschild  r.  Brookman,  2  Dow  &  Clark,  188  (1831)  ;  Kerfoot  v.  Hyman,  .52  111.  512 
(1869)  ;  Ruckman  v.  Berf^holz,  37  N.  J.  L.  437  (1874) ;  Bain  v.  Brown,  56  N.  Y.  285 
(1874) ;  De  Bu.ssche  v.  Alt,  8  Ch.  D.  286  (C.  A.  1878)  ;  Porter  v.  Woodruff,  36  N.  J. 
Eq.  174  (1882);  Jansen  v.  Williams,  36  Neb.  869  (1893).-Ed. 

58 


914  BELL   V.    McCONNELL.  [CHAP.  VIL 

said  exchange,  and  assented  thereto,  and  agreed  to  pa}'  said  plaintiff 
the  commission  stipulated  in  the  written  contract  of  agency,  said  plain- 
tiff would  be  entitled  to  recover  in  this  case,"  but  the  court  refused  to 
charge  the  jury  as  above  requested,  and  did  charge  as  follows: 

"  That  if  you  find  that  Neal  employed  plaintiff  to  sell  or  exchange 
his  farm  in  Boardman  for  cash  or  property,  and  agreed  to  pa}'  him  for 
such  services,  and  if  while  so  employed,  defendant  Bell  and  others 
emplo3'ed  plaintiff  to  find  a  purchaser  for  their  (defendants')  city  prop- 
erty, or  one  who  would  exchange  country  property  for  it,  and  if  plain- 
tiff's dut}'  was  simply  to  bring  the  buyer  and  seller  together,  and  for 
that  service  defendants  agreed  to  pay  plaintiff  a  fixed  amount,  and  if 
plaintiff  performed  that  service  tlie  defendants  are  bound  in  law  to  pay 
said  amount  so  fixed,  even  though  plaintiff  was  acting  as  agent  for  the 
party —  in  this  case  Neal  —  so  introduced. 

"  But  I  sa}'  to  you,  if  the  contract  between  plaintiff  and  defendants 
was,  that  plaintiff  should  sell  for,  or  assist  the  defendants  in  selling 
or  exchanging  their  propert}',  and  did  so  sell  or  exchange  defendants' 
property,  or  assist  them  in  selling  it  to,  or  exchanging  it  with  said 
Neal,  while  he  was  also  acting  for  Neal,  or  assisting  him  in  the  same 
sale  or  exchange,  under  a  contract  with  said  Neal  for  pay  on  the  part 
of  said  Neal  for  such  service  so  rendered  him,  then  plaintiff  is  not 
entitled  to  3'our  verdict  in  this  case,  even  though  both  Bells  and  Neal 
were  aware  of,  and  assented  to  said  plaintiff's  employment  and  acts  in 
the  premises." 

Exceptions  were  taken  to  the  refusal  to  charge  as  requested  and  to 
the  charge  given. 

Verdict  and  judgment  were  rendered  for  the  defendants.  On  petition 
in  error  the  judgment  of  the  Court  of  Common  Pleas  was  reversed,  and 
this  proceeding  is  prosecuted  to  reverse  the  judgment  of  reversal. 

Ji.  B.  Murray,  for  plaintiff  in  error. 

George  F.  Arrel,  for  defendant  in  error. 

McIlvaine,  J.  This  case  presents  the  single  question  :  Can  a  real- 
estate  broker,  who  assumes  to  aid  both  contracting  parties  in  making 
an  exchange  of  real  estate,  recover  compensation  for  his  services  from 
either,  upon  an  express  promise  to  pay,  in  a  case  where  each  principal 
had  full  knowledge  of  and  assented  to  the  double  employment  ? 

It  has  been  decided  (Rupp  v.  Sampson,  16  Gray,  398,  and  Siegel  v. 
Gould,  7  Lans.  177),  and  is  not  doubted,  that  such  broker  may  re- 
cover from  both  or  either  where  his  employment  was  merely  to  bring 
the  parties  together;  and  it  is  equally  clear,  both  upon  principle  and 
authority,  that  in  case  of  such  double  employment  he  can  recover  from 
neither,  where  his  employment  b}'  either  is  concealed  from  or  not  as- 
sented to  b}-  the  other.  Several  reasons  maj'  be  given  for  this  rule. 
In  law,  as  in  morals,  it  ma}'  be  stated  that,  as  a  principle,  no  servant 
can  serve  two  masters,  for  either  he  will  hate  the  one  and  love  the 
other,  or  else  he  will  hold  to  the  one  and  despise  the  other.  Luke 
xvi.  13.     Unless  the  principal  contracts  for  less,  the  agent  is  bound 


SECT.  II.]  BELL   V.    McCONNELL.  915 

to  serve  him  with  all  his  skill,  judgment,  and  discretion.  The  agent 
cannot  divide  this  duty  and  give  part  to  another.  Therefore,  b}-  en- 
gaging with  the  second,  he  forfeits  his  right  to  compensation  from  the 
one  who  first  employed  him.  By  the  second  engagement,  the  agent, 
if  he  does  not  in  fact  disable  himself  from  rendering  to  the  first  em- 
ployer the  full  quantum  of  service  contracted  for,  at  least  tempts  him- 
self not  to  do  so.  And  for  the  same  reason  he  cannot  recover  from 
the  second  employer,  who  is  ignorant  of  the  first  engagement.  And 
if  the  second  employer  has  knowledge  of  the  first  engagement,  then 
both  he  and  the  agent  are  guilty  of  the  wrong  committed  against  the 
first  employer,  and  the  law  will  not  enforce  an  executory  contract  en- 
tered into  in  fraud  of  the  rights  of  the  first  employer.  It  is  no  answer 
to  say  that  the  second  employer  having  knowledge  of  the  first  emplo}-- 
ment  should  be  held  liable  on  his  promise,  because  he  could  not  be 
defrauded  in  the  transaction.  The  contract  itself  is  void  as  against 
public  policy  and  good  morals,  and  both  parties  thereto  being  m  pari 
delicto,  the  law  will  leave  them  as  it  finds  them.  Ex  dolo  mulo  non 
oritur  actio. 

The  non-liability  of  the  second  employer  having  knowledge  of  the 
-first  employment  has  been  maintained  in  the  following  cases:  Farns- 
worth  y.  Hemmer,  1  Allen,  494;  Walker  v.  Osgood,  98  Mass.  348; 
Smith  y.  Townsend,  109  Mass.  500;  Rice  v.  Wood,  113  Mass.  133; 
Bollman  v.  Loomis,  41  Conn.  581  ;  Everhart  v.  Searle,  71  Pa.  St.  256  ; 
Morrison  v.  Thompson,  9  Q.  B.  (L.  R.)  480.  But  in  each  of  these 
cases  it  is  strongly  intimated,  if  not  distinctly  announced,  that  a  re- 
covery may  be  had  hy  such  agent,  when  he  acted  with  the  knowledge 
and  consent  of  both  principals.  In  Lynch  v.  Fallon,  11  R.  I.  311,  the 
same  general  doctrine  is  held,  and  it  is  said  that  a  broker  acting  at 
once  for  both  vendor  and  purchaser,  assumes  a  double  agenc}'  disap- 
proved of  by  law,  and  which,  if  exercised  without  the  full  knowledge 
and  free  consent  of  both  parties,  is  not  to  be  tolerated.  The  same,  in 
Meyer  v.  Hanchett,  43  Wis.  246,  wherein  the  question  whether  such 
double  agency  is  consistent  with  public  policy,  though  exercised  with 
the  consent  of  both  parties,  is  left  undecided,  but  it  is  decided  that 
mere  knowledge  of  such  double  agencj-,  without  actual  consent  on  the 
part  of  the  principals,  will  not  entitle  the  agent  to  commissions. 

The  validity  of  such  contracts  of  double  agenc}',  where  all  the  princi- 
pals were  fully  advised  and  consented  to  the  doul)le  emploj'ment,  was 
more  directly  before  the  courts,  and  affirmed  in  the  following  cases : 
35  N.  Y.  Super.  Ct.  189  ;  Rowe  y.  Stevens,  53  N.  Y.  621  ;  Alexander 
V.  N.  W.  C.  University,  57  Ind.  466  ;  Joslin  v.  Cowee,  56  N.  Y.  Q'^Q  ; 
Adams  Mining  Co.  v.  Sentei-,  26  Mich.  73  ;  Fitzsimmons  v.  South- 
western YjX.  Co.,  40  Geo.  330  ;  Rolling  Stock  Co.  y.  Railroad,  34  Ohio 
St.  450  ;  Pugsley  v.  Murray,  4  E.  D.  Smith,  245.  See  also  note  by 
Bennett  to  Lynch  y.  Fallon,  16  Am.  L.  Reg.  333. 

Raisin  y.  Clark,  41  Md.  158,  holds  the  contrary  doctrine,  if  knowl- 
edge and  consent  on  the  part  of  the  first  employer  is  to  be  regarded  as 


916  BELL    V.    McCONNELL.  [CHAP.  YIL 

full}'  proved.  Other  cases  bearing  more  or  less  directly  on  the  point 
might  be  cited ;  but  enough  are  given  to  show  a  want  of  harmon}'  in 
the  decisions  ;  yet  we  think  the  decided  current  of  authorit}'  is  in  favor 
of  the  validity  of  such  contracts  where  the  consent  of  both  principals 
to  such  double  agency  is  clearly  proved. 

We  admit  that  all  such  transactions  should  be  regarded  with  suspi- 
cion ;  but  where  full  knowledge  and  consent  of  all  parties  interested 
are  clearl}-  shown  we  know  of  no  public  policy,  or  principle  of  sound 
morality,  which  can  be  said  to  be  violated.  It  seems  to  us  rather  that 
public  policy  requires  that  contracts,  fairly  entered  into  by  parties  com- 
petent to  contract,  should  be  enforced  where  no  public  law  has  been 
violated,  and  no  corrupt  purpose  or  end  is  sought  to  be  accomplished. 
True,  such  agent  maj'  not  be  able  to  serve  each  of  his  principals  with 
all  his  skill  and  energy.  He  may  not  be  able  to  obtain  for  his  vendor 
principal  the  highest  price  which  could  be  obtained,  or  for  the  purchaser 
the  lowest  price  for  which  it  could  be  purchased.  But  he  can  render  to 
each  a  service  entirely'  free  from  falsehood  and  fraud  ;  a  fair  and  valua- 
ble service  in  which  his  best  judgment  and  his  soundest  discretion  are 
fully  and  freelj-  exercised.  And  in  such  case,  such  service  is  all  that 
either  of  his  principals  contracted  for.  Undoubtedly,  if  two  persons 
desire  to  negotiate  an  exchange  or  a  bargain  and  sale  of  property,  they 
may  agree  to  delegate  to  a  third  person  the  power  to  fix  the  terms,  and 
no  suspicion  of  a  violated  public  policy  would  arise.  It  may  be  said 
that  such  third  person  is  an  arbitrator  chosen  to  settle  differences  be- 
tween his  employers,  an  agenc}'  or  office  greatl}'  favored  in  the  law. 
And  so  it  is.  But  what  is  the  distinction  between  that  employment 
and  the  one  in  the  present  case,  which  should  cause  the  law  to  favor 
the  former  and  abhor  the  latter?     I  can  see  none. 

True,  in  the  case  put,  the  contracting  parties  deal  directly  with  each 
other,  and  in  the  case  at  bar  their  minds  meet  through  the  medium  of 
a  third  person  in  whose  judgment  and  discretion  they  mutuall}'  repose 
confidence.  His  judgment  and  discretion  are  invoked  by  each  to  aid 
in  fixing  the  terms  of  a  contract  between  them.  And  after  the  terms 
are  thus  adjusted  through  the  aid  of  their  mutual  agent,  and  ratified 
by  the  parties,  in  the  free  exercise  of  their  own  volitions,  to  hold 
that  the  relation  between  such  agent  and  either  of  his  principals  is  in 
violation  of  a  sound  public  policy  supposed  to  rest  on  some  moral 
abstraction,  would  be  a  refinement  in  legal  ethics  too  subtle  for  my 
comprehension. 

Of  course,  to  relieve  such  double  agent  from  suspicion  that  incon- 
sistent duties  have  been  assumed,  v>h\cl\ prima /acie  will  be  presumed, 
it  is  necessary*  that  it  should  appear  that  knowledge  of  every  circum- 
stance connected  with  his  employment  by  either  should  be  communi- 
cated to  the  other,  in  so  far  as  the  same  would  naturalh'  affect  his 
action  ;  but  when  that  is  done,  and  free  assent  is  given  b}'  each  principal 
to  the  double  relation  of  the  agent,  the  right  of  such  agent  to  corapensa 
t\on  cannot  be  denied  on  any  just  principle  of  morals  or  of  law. 


SECT.  IL]  DAVIS    V.    HAMLIN.  917 

The  refusal  of  the  Court  of  Common  Pleas  to  charge  as  requested, 
and  the  second  proposition  given,  if  not  plainly  in  conflict  with  the 
views  above  expressed,  were  at  least  so  susceptible  of  such  construc- 
tion, that  the  jury  may  have  been  misled.  Hence,  we  think  the  district 
court  did  not  err  in  reversing  the  judgment. 

Judgment  of  district  court  affirmed? 


DAVIS  V.  HAMLIN. 
Supreme  Court  of  Illinois.     1883. 

[108  ///.  39.] 

Appeal  from  the  Appellate  Court  for  the  First  District,  — heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  Cook  county* ;  the  Hon. 
M.  F.  TuLEY,  judge,  presiding. 

This  was  a  bill  in  equity  brought  by  John  A.  Hamlin,  against 
William  J.  Davis,  seeking  to  have  the  latter  declared  to  be  a  trustee  for 
the  former  of  a  certain  lease  of  the  Grand  Opera  House  in  Chicago, 

1  8ee  York  Buildings  Co.  v.  Mackenzie,  8  Bro.  P.  C.  (Tomlin's  ed.),  42  (1795); 
New  York  Central  Ins.  Co.  v.  National  Protection  Ins  Co.,  14  N.  Y.  85  (1856)  ;  Rice 
i;.  Wood,  113  Mass.  133  (1873);  Morison  v.  Thompson,  L.  R.  9  Q.  B.  549  (1874); 
Ranney  v.  Donovan,  78  Mich.  318  (1889). 

In  Empire  State  Ins.  Co.  v.  American  Central  Ins.  Co.,  138  N.  Y.  446  (1893),  Earl, 
J.,  for  the  court,  said :  "It  is  not  doubted  that  the  same  per.son  may  sometimes  act 
as  agent  for  the  two  parties  in  the  same  transaction.  But  he  can  do  so  only  in  case 
he  has  no  discretion  to  exercise  for  eitlier  party.  An  agent  to  sell  for  one  party  may 
also  act  as  agent  for  the  buyer,  but  only  in  case  the  price  and  terms  of  sale  have  been 
fixed  by  each  party,  so  that  nothing  is  left  to  his  discretion.  But  an  agent  to  sell  in- 
trusted with  a  discretion,  and  thus  bound  to  obtain  the  best  price  he  can,  cannot  buy 
for  himself  or  as  agent  for  another.  In  such  a  case  he  would  occupy  antagonistic 
positions,  and  there  would  be  a  conflict  of  interests.  He  could  not  faithfully  serve  the 
one  party  without  betraying  the  interests  of  the  other.  He  would  at  least  be  under 
great  temptation  to  betray  the  interest  of  one  of  the  parties.  So  a  person  may  some- 
times act  as  agent  of  botli  parties  in  the  making  of  any  contract.  But  he  cannot  do 
so  when  he  is  invested  with  a  discretion  by  each  party,  and  when  each  is  entitled  to 
the  benefit  of  his  skill  and  judgment." 

In  Knaus  v.  Krueger  Brewing  Co.,  142  N.  Y.  70  (1894),  Peckham,  J.,  for  the 
court,  said :  "  It  is  undenialtle  that  where  the  broker  or  agent  is  invested  with  the 
least  discretion,  or  where  the  party  has  the  right  to  rely  on  the  broker  for  the  benefit 
of  his  skill  or  judgment,  in  any  such  case  an  employment  of  the  broker  by  the  other 
side  in  a  similar  capacity,  or  in  one  where  by  possibility  his  duty  and  his  interest 
might  clash,  would  avoid  all  his  right  to  compensation.  The  whole  matter  depends 
upon  the  cliaracter  of  his  employment.  If  \.  is  employed  by  B.  to  find  him  a  pur- 
chaser for  his  house  upon  terms  and  conditions  to  be  determined  by  B.  when  he  meets 
the  purchaser,  I  can  see  nothing  improper  or  inconsistent  witli  any  duty  ho  owes  B. 
for  A.  to  accept  an  employment  from  C.  to  find  one  who  will  sell  his  house  to  C.  upon 
terms  which  they  may  agree  upon  when  they  meet.  And  there  is  no  violation  of  duty 
in  such  case  in  agreeing  for  commissions  from  each  party  upon  a  bargain  being 
struck,  or  in  failing  to  notify  each  party  of  his  employment  by  the  other." — P^D. 


918  DAVIS    V.    HAMLIN.  [CHAP.  VIL 

which  Davis  had  obtained  for  himself  from  William  Borden.  Upon  the 
hearing  the  circuit  court  decreed  the  relief  prajed  for.  The  decree  was 
atliimed  by  the  Appellate  Court  for  the  First  District,  and  the  defend- 
ant appealed  to  this  court. 

The  facts  appearing  from  the  evidence  are,  that  Hamlin  was  the 
lessee  and  manager  of  the  theatre  known  as  the  Grand  Opera  House, 
in  the  city  of  Chicago,  and  for  some  ten  years  had  occupied  tlie  prem- 
ises, first  as  owner,  and  then  as  lessee.  After  the  Chicago  fire,  in  1871, 
he  purchased  the  lots  and  built  thereon  the  building,  and  has  used  it 
since  that  time  as  a  place  of  amusement.  He  expended  in  its  construc- 
tion and  improvement  over  $75,000.  Mortgages  had  been  given  upon 
the  lots,  which  were  finally  foreclosed,  and  he  lost  the  title  to  the  lots. 
Subsequently'  he  became  a  lessee,  and  contracted  with  William  Borden, 
who  was  then  the  owner  of  the  premises,  that  the  latter  should  fit  up 
the  house  for  a  first-class  opera  house,  and  that  he  would  pay  him  a 
rental,  after  it  was  finished,  amounting  to  about  $18,000  a  year.  The 
building  being  completed  about  the  month  of  August,  1880,  Hamlin 
entered  into  the  possession,  and  opened  it  as  a  place  for  first-class 
entertainments.  He  had  a  lease  which  would  expire  April  23,  1883, 
and  it  was  his  intention  to  continue  permanently  in  this  building  in  the 
amusement  business,  and  at  the  expiration  of  his  lease  to  renew  it. 
During  the  first  year  after  opening  his  new  opera  house,  about  the  first 
of  September,  1880,  he  cleared,  over  and  above  all  expenses,  the  sum  of 
$7,000,  and  the  next  year,  from  September,  1881,  to  September,  1882, 
$24,000.  When  he  was  about  to  open  in  September,  1880,  he  secured 
the  services  of  William  J.  Davis,  the  defendant,  as  a  general  business 
manager.  The  evidence  shows  that  the  duties  of  a  manager  or  assist- 
ant manager  are  to  correspond  with  companies,  operas,  troupes,  etc., 
for  engagements  of  from  one  to  four  weeks,  according  to  their  accept- 
ableness,  and  so  arrange  the  engagements,  that  they  will  follow  one 
another  in  future  months  without  loss  of  time.  In  making  these  en- 
gagements it  is  necessary  to  show  the  exact  expense  of  the  house  each 
night,  including  rent,  and  the  custom  of  business  is  to  make  a  settle- 
ment between  the  proprietor  of  the  theatre  and  the  manager  of  the 
attraction,  and  divide  the  money  every  night.  Davis,  about  September, 
1880,  entered  upon  the  discharge  of  his  duties,  and  from  that  time  until 
the  making  of  the  lease  in  question  continued  in  the  management  of 
the  theatre.  For  this  service  he  received  $50  per  week  as  a  fixed  salary, 
and  ten  per  cent  of  the  profits. 

Respecting  the  renewal  of  the  lease  there  is  but  the  uncontradicted  tes- 
timonj-  of  Davis  and  Hamlin  themselves.  Davis  testifies  the  first  nego- 
tiation he  had  with  Borden  was  about  December  1,  1881.  He  went  to 
Borden  for  the  purpose  of  purchasing  the  theatre,  and  offered  $200,000 
for  it.  Borden  did  not  care  to  sell,  and  inquired  what  rent  Davis 
would  be  willing  to  pa}',  and  Davis  said,  ten  per  cent  on  Borden's 
valuation  of  it,  if  it  did  not  run  above  $225,000.  Borden  asked  Davis 
if  he  would  give  that  rent,  and  Davis  said  he  would,  if  there  was  any 


SECT.  II.]  DAVIS   V.    HAMLIN.  919 

use  of  his  making  an  offer  for  it,  —  if  the  theatre  was  in  the  market. 
Borden  said  he  was  going  to  New  York,  and  would  see  Davis  on  his 
return.  Davis  says  he  next  saw  Borden  on  the  19th  of  January,  1882, 
when  he  called  upon  Borden  in  Chicago  in  response  to  a  note  from 
Borden  to  do  so.  Borden  then  inquired  of  Davis  what  he  would  give 
for  the  lease  of  the  theatre.  Davis  told  him.  Borden  did  not  accept 
the  offer,  but  asked  Davis  to  see  him  another  day,  and  after  further 
negotiation,  Borden,  on  the  24th  of  January,  1882,  executed  to  Davis 
a  lease  of  the  theatre  for  the  term  of  ten  years,  at  the  rental  of  $22,500 
per  year.  Davis  says  he  told  Borden,  at  the  interview  on  January  19, 
that  Hamlin  would  pay  him  nearly  double  what  Davis  offered  for  the 
theatre,  because  Hamlin  had  told  him  (Davis)  that  he  would  pay 
$40,000  a  year  for  the  theatre,  and  sink  $10,000  from  his  private  in- 
come, before  he  would  surrender  it,  but  Borden  said  he  thought  Hamlin 
was  "  blowing." 

Hamlin  testifies  that  soon  after  the  opening,  in  1880,  he  made  appli- 
cation to  Borden  for  a  lease  to  him  and  one  Nunnemacher  for  twenty 
years,  which  Borden  declined,  then,  to  give;  that  the  next  talk  he  had 
with  Borden  was  in  New  York,  between  the  middle  of  December,  1881, 
and  the  middle  of  January,  1882,  when  he  told  Borden  he  would  take  a 
lease  for  an\'  term  of  years,  and  would  pay  all  that  it  was  possible  for 
any  prudent  business  man  to  pay,  and  would  pa}'  as  much  rent  as  any- 
body'. Borden  said  he  would  talk  it  over  the  next  week  in  Chicago. 
Subsequently  he  had  two  interviews  in  Chicago  with  Borden  on  the 
subject.  At  the  second  one  he  offered  $20,000  per  year  rent,  but 
Borden  declined  to  take  it,  saying  he  must  see  the  other  parties  first ; 
that  there  were  two  persons  he  had  offers  from  ;  that  they  were  mana- 
gers, and  Chicago  men.  Hamlin  testifies  that  he  went  immediately  to 
Davis,  and  inquired  of  him  if  he  was  attempting  to  secure  a  lease  of  the 
Grand  Opera  House,  and  Davis  answered  no  —  that  he  was  not.  He 
said  he  then  told  Davis  what  he  had  just  learned  from  Borden,  and  that 
he  would  pay  double  the  value  of  the  theatre  rather  than  anybod}'  else 
should  have  it.  Davis  said  to  him  :  "I  would  not  give  an  extravagant 
price  for  it  if  I  were  you  ;  I  would  not  give  a  dollar  more  than  it  is 
worth."  The  parties  agree  as  to  this  interview  and  conversation,  differ- 
ing onl}'  as  to  its  date,  Davis  testifj'ing  that  it  was  on  the  17th,  and 
Hamlin  that  it  was  on  the  23d  of  January,  1882. 

The  evidence  was  that  a  theatre  well  managed  has  a  good-will,  of 
value,  attached  to  it ;  that  there  were  only  four  first-class  theatres  in 
Chicago,  including  the  Grand  Opera  House,  and  there  was  no  proba- 
bility that  Hamlin  could  get  another  theatre  without  building  a  new 
one. 

3fi'.  E.  flamiesoyi  and  Mr.  L.  W.  Perce^  for  the  appellant. 

Mr.  L.  Swett  and  Messrs.  Quigg  <&  Ttdhill,  for  the  appellee. 

Sheldon,  C.  J.  Under  the  facts  in  this  case  the  onlj'  question 
arising  is,  whether  Hamlin,  b}-  reason  of  Davis'  agency  and  confiden- 
tial relation  to  him,  is  entitled  to  the  benefit  of  the  lease  executed  by 
Borden  to  Davis. 


920  DAVIS   V.   HAMLIN.  [CHAP.  VIL 

In  the  employment  of  an  agent  the  principsl  bargains  for  the  disin- 
terested skill,  diligence,  and  zeal  of  the  agent  for  his  own  exclusive 
benefit.  Upon  entering  into  the  eraplo}-  of  Hamlin,  there  rested  upon 
Davis  the  duty  of  fidelit}'  to  his  employer's  interest,  and  of  acting  for 
the  furtherance  and  advancement  of  the  business  in  which  he  was  en- 
gaged, and  not  in  its  injury.  We  view  the  whole  conduct  of  Davis  in 
regard  to  the  lease  in  question  as  violative  of  the  duty  of  the  relation  in 
which  he  stood  toward  Hamlin.  His  first  offer  to  rent  the  premises 
from  Borden,  about  December,  1881,  was  an  act  hostile  to  the  interest 
of  his  employer.  He  offered  Borden  a  rent  which  was  nearly  $5,000  in 
excess  of  the  rent  which  Hamlin  was  then  paying.  Borden  knew  that  this 
was  an  offer  made  upon  an  exact  knowledge  of  the  profits  of  the  busi- 
ness, which  Davis,  from  his  emplo3"ment,  had  peculiar  means  of  know- 
ing, and  the  natural  effect  would  be  to  cause  Hamlin  to  pay  an  enhanced 
rent  when  he  should  come  to  ask  for  a  renewal  of  his  lease.  Davis 
violated  the  duty  of  his  relation  in  concealing  from  Hamlin  that  he  was 
attempting  to  get  the  lease.  Davis  excuses  his  denial  to  Hamlin  of 
such  attempt  b}'  saving  that  this  was  on  January  17,  and  that  it  was  true 
that  at  that  time  he  was  not  making  such  an  attempt,  but  had  given  it 
over,  not  up  to  that  time  having  received  any  response  from  Borden  to 
Davis'  offer  to  rent,  made  on  December  1,  and  that  he  was  then,  on 
January  17,  making,  or  had  made,  preparations  to  go  into  another  busi- 
ness. Taking  this  to  be  so,  we  find  Davis  only  two  da^'s  later,  January 
19,  in  the  act  of  negotiation  for  the  lease,  and  making  an  oflfer  to  Borden 
for  the  lease,  which  the  latter  took  time  to  consider.  Now,  Davis  knew 
that  it  was  of  vital  importance  to  the  interest  of  Hamlin  that  the  latter 
should  get  a  renewal  of  his  lease  ;  that  Hamlin  was  most  anxious  to 
ascertain  whether  Davis  —  who  alone,  with  Hamlin,  had  exact  knowl- 
edge of  the  profits  of  the  business  —  was  in  competition  for  the  lease  ; 
and  from  Davis,  onl}-  two  da3-s  before,  denying  that  he  was  competing 
for  the  lease.  Davis  knew,  on  January  19,  that  the  belief  was  resting 
on  Hamlin's  mind,  from  what  Davis  had  told  him  two  days  before,  that 
Davis  was  not  a  competitor  for  tlie  lease.  Under  these  circumstances 
Davis  ought  to  have  disabused  the  mind  of  Hamlin  of  the  impression, 
which  Davis  had  caused,  that  the  latter  was  not  attempting  to  get  the 
lease,  and  have  informed  Hamlin  of  what  the  fact  was,  to  give  to  the 
latter  the  opportunity  to  act  accordingly,  and  Davis'  not  doing  so  was  a 
breach  of  good  faith  towards  his  emploj'er. 

The  obtaining  of  the  lease  b}-  Davis  amounted  to  a  virtual  destruction 
of  his  employer's  whole  business  at  the  termination  of  the  old  lease, 
under  which  the  latter  was  holding.  Bv  some  ten  j-ears  of  labor  Hamlin 
had  built  up  a  business  of  a  very  profitable  character.  There  was  a 
good-will  attached  to  it,  which  was  valuable.  Hamlin  was  intending  to 
make  it  a  lifetime  business.  Sustaining  this  lease  to  Davis,  at  the  end 
of  Hamlin's  lease,  April  16,  1883,  all  this  business  would  come  to  an 
end,  and  pass,  good-will  and  all,  from  Hamlin,  the  emploj'er,  into  the 
hands  of  Davis,  the  emplo3'ee.    And  this  would  have  been  accomplished 


SECT.  II.]  DAVIS   V.    HAMLIN.  921 

by  the  raeans  of  a  renewal  lease  obtained  by  a  confidential  agent,  in 
violation  of  the  duty  of  his  relation,  and  acquired,  presumabh',  because 
of  peculiar  means  of  knowledge  of  the  profitableness  of  the  business, 
aflJbrded  him  by  the  confidential  position  in  which  he  was  emplo3-ed.  A 
personal  benefit  thus  obtained  b}^  an  agent,  equity  will  hold  to  inure  for 
the  benefit  of  the  principal. 

Public  policy,  we  think,  must  condemn  such  a  transaction  as  that  in 
question.  To  sanction  it  would  hold  out  a  temptation  to  the  agent  to 
speculate  off  from  his  principal  to  the  latter's  detriment.  Davis  very 
well  knew  that  his  employer  would  be  willing  to  pa}-  a  much  higher 
rent  than  that  at  which  he  obtained  the  lease,  and  that  he  could  dispose 
of  the  lease  to  Hamlin  at  a  large  profit  to  himself,  and  such  means  of 
knowledge  was  derived  from  his  position  as  agent.  If  a  manager  of  a 
business  were  allowed  to  obtain  such  a  lease  for  himself,  there  would  be 
laid  before  him  the  inducement  to  produce  in  the  mind  of  his  principal 
an  under-estimate  of  the  value  of  the  lease,  and  to  that  end,  maybe,  to 
mismanage  so  as  to  reduce  profits  in  order  that  he  might  more  easilj'^ 
acquire  the  lease  for  himself. 

It  is  contended  b}'  appellant's  counsel  that  the  rule  we  apph-,  which 
holds  an  agent  to  be  a  trustee  for  his  principal,  has  no  application  to 
the  case  at  bar,  because  Davis  was  not  an  agent  to  obtain  a  renewal  of 
the  lease,  and  was  not  charged  with  any  dut}-  in  regard  thereto  ;  that  his 
was  but  the  specific  employment  to  engage  amusements  for  the  theatre, 
and  that  he  was  an  agent  only  within  the  scope  of  that  employment ; 
that  Hamlin,  having  a  lease  which  would  expire  April  16,  1883,  had  no 
right  or  interest  in  the  property  thereafter,  and  that  Davis  in  negotiat- 
ing for  the  lease,  did  not  deal  with  any  property  wherein  Hamlin  had 
any  interest,  and  that  such  propert}'  was  not  the  subject  matter  of  any 
trust  between  them.  Although  there  was  here  no  right  of  renewal  of 
the  lease  in  the  tenant,  he  had  a  reasonable  expectation  of  its  re- 
newal, which  courts  of  equity  have  recognized  as  an  interest  of 
value,  secretly  to  interfere  with  which,  and  disappoint,  by  an  agent 
in  the  management  of  the  lessee's  business,  we  regard  as  inconsistent 
with  the  fidelit}'  which  the  agent  owes  to  the  business  of  his  principal. 
There  was  the  good-will  of  the  business,  which  belonged  to  the  business 
as  a  portion  of  it,  and  this  the  agent  got  for  himself. 

It  is  further  argued  that  the  relation  here  between  Hamlin  and  Davis 
was  that  of  master  and  servant,  or  employer  and  employee,  and  that  the 
rule  has  never  been  applied  to  that  relation  as  a  class,  and  that  the 
classes  coming  within  that  doctrine  are  embraced  within  the  list  of 
defined  confidential  relations,  such  as  trustee  and  beneficiar}',  guardian 
and  ward,  etc.  The  subject  is  not  comprehended  v»'ithin  an}-  such 
narrowness  of  view  as  is  presented  on  appellant's  part  In  applying 
the  rule,  it  is  the  nature  of  the  relation  which  is  to  be  regarded,  and  not 
the  designation  of  the  one  filling  the  relation.  Of  this  principle  Bispham 
says  :  ''  The  rule  under  discussion  applies  not  onl}'  to  persons  standing 
in  a  direct  fiduciary  relation  towards  others,  such  as  trustees,  executors. 


922  DAVIS   V.    HAMLIN.  [CHAP.  VII. 

attorneys  and  agents,  but  also  to  those  who  occupy  any  position  out  of 
which  a  similar  dut}'  ought,  in  equity  and  good  morals,  to  arise." 
(Bisphani's  P^quity,  sec.  93.)  In  Greenlaw  v.  King,  5  Jur.  19,  Lord 
Chancellor  Cottenham,  speaking  of  this  doctrine,  says:  "The  rule 
was  one  of  universal  application,  affecting  all  persons  who  came  within 
its  principle,  which  was,  that  no  party  could  be  permitted  to  purchase 
an  interest  when  he  had  a  dut\'  to  perform  which  was  inconsistent  with 
the  character  of  a  purchaser."  "It  is  the  duty  of  a  trustee,"  said  Lord 
Brougham,  in  Hamilton  y.  AVright,  9  CI.  &  Fin.  Ill,  "to  do  nothing 
for  the  impairing  or  destruction  of  the  trust,  nor  to  place  himself  in  a 
position  inconsistent  with  the  interestsof  the  trust."  And  on  page  124  : 
"Nor  is  it  onl}'  on  account  of  the  conflict  between  his  interests  and  his 
dut}-  to  the  trust  that  such  transactions  are  forbidden.  The  knowledge 
which  he  acquires  as  trustee  is,  of  itself,  sufficient  ground  of  disquali- 
fication, and  of  requiring  that  such  knowledge  shall  not  be  capable  of 
being  used  for  his  own  benefit  to  injure  the  trust."  Although  this  was 
said  of  a  trustee,  we  think  it  may  be  equally'  said  here  with  respect  to 
Davis  and  the  business  which  he  was  employed  to  manage.  The  rule  we 
apply,  as  to  its  broadness  in  extent,  is  aptly  expressed  in  the  Ameri- 
can note  to  Keech  v.  Sanford,  1  Lead.  Cases  in  Eq.  53,  as  follows: 
"Wherever  one  person  is  placed  in  such  relation  to  another,  by  the 
act  or  consent  of  that  other,  or  the  act  of  a  third  person,  or  of  the  law, 
that  he  becomes  interested  for  him,  or  interested  with  him,  in  any  sub- 
ject of  property  or  business,  he  is  prohibited  from  acquiring  rights  ia 
that  subject  antagonistic  to  the  person  with  whose  interests  he  has 
become  associated." 

The  views  which  we  have  above  expressed  we  believe  to  be  in 
accordance  with  the  well-established  principles  of  equitable  juris- 
prudence. See  Devall  v.  Burbridge,  4  Watts  &  S.  305  ;  Hill  v.  Frazier, 
22  Pa.  St.  320  ;  Fairman  v.  Bavin,  29  111.  75 ;  Oilman,  Clinton  and 
Springfield  R.  R.  Co.  v.  Kelly,  77  id.  426  ;  Bennett  v.  Vansyckle,  4 
Duer,  462;  Gillenwaters  v.  Miller,  49  Miss.  150;  Grumley  v.  Webb, 
44  Mo.  446. 

The  judgment  of  the  Appellate  Court  must  be  affirmed. 

Judgment  affirmed} 

1  Ace. :     Gower  v.  Andrew,  59  Cal.  1 1 9. 

See  Yovatt  r:  Winyard,  1  Jac.  &  W.  394  (1820) ;  Valletta  v.  Tedens,  122  III.  607 
(1887) ;  Tabor  v.  Hoffman,  118  N.  Y.  30  (1889).  —  Ed. 


SECT.  II.]  PAGE   V.   WEBB.  923 

PAGE  V.   WEBB. 

Court  of  Appeals  of  Kentucky.     1888. 

[7  S.  W.  Rep.  308.] 

Appeal  from  circuit  court,  Adair  county. 

II.  C.  leaker,  for  appellant. 

Montgomery  tC;  Jones,  for  appellee. 

Pkvor,  C.  J.  Tlie  appellee,  Webb,  living  in  Memphis,  Tennessee, 
and  owniiig  a  large  tract  of  land  in  Adair  count}",  in  this  State,  em- 
ployed the  appellant,  Page,  to  take  charge  of  his  land,  list  it  for 
taxation,  and  pay  the  taxes  as  they  became  due.  The  agent  paid  the 
taxes  for  three  years  prior  to  the  year  1874,  but  declined  to  pay  them 
for  the  years  1874,  1875,  187G,  and  1877.  The  land  was  sold  to  pay 
the  taxes  for  those  years,  and  purchased  by  the  sheriff,  who  assigned 
his  bid  to  Page,  appellee's  agent,  and  the  latter  obtained  a  deed  therefor. 
This  action  is  to  cancel  that  deed,  and  compel  the  appellant  to  surren- 
der his  claim,  the  appellee  tendering  the  full  amount  paid.  That  the 
appellee  was  derelict  in  his  duty  in  failing  to  furnish  the  appellant  with 
mone}'  to  pa^'  the  taxes,  is  established,  and  this  agent  was  left  to  pay 
them  out  of  his  own  pocket,  which  he  did  up  to  1873.  The  land  was 
listed  for  the  years  during  which  the  taxes  were  unpaid  by  the  appellant, 
as  the  agent  of  the  appellee,  and,  when  sold,  was  purchased  by  the  appel- 
lant. The  latter  states  that  he  does  not  recollect  whether  he  listed  the 
property  in  that  way  or  not ;  still  the  assessor's  books  show  that  it  was 
listed  in  that  manner.  The  agent  of  the  principal  was  purchasing  the 
principal's  property,  and  must  be  regarded  as  holding  it  for  his  prin- 
cipal. He  purchased  the  1,000  acres  of  land  for  $32  ;  and  looking  to 
the  relation  of  the  parties  at  the  time,  with  reference  to  the  subject- 
matter  of  controversy,  the  Chancellor  properly  held  that  the  agent 
acquired  the  title  to  protect  the  claim  of  the  appellee,  and  he  cannot, 
in  a  court  of  conscience,  be  deemed  to  have  purchased  the  land  for  any 
other  purpose.  Judgment  affirmed.^ 

1  Arc:   Bowman  v.  Officer,  ."iS  Iowa,  640  (1880). 

For  other  applications  of  the  doctrine  as  to  loyalty,  see  Ringo  v.  Binns,  10  Pet.  269, 
280  (1836) ;  Carter  v.  Palmer,  1  Dr.  &  Walsh,  722  (1839) ;  Gardner  v.  Ogden,  22  N.  Y. 
327  (I860)  ;  Claflin  v.  Farmers'  &  Citizens'  Bank,  25  N.  Y.  293  (1862);  Eo£E  v.  Irvine, 
108  Mo.  378  (1891).  — Ed. 


924  MERRYWEATHER   V.    MOORE.  [CHAP.  VIL 


MERRYWEATHER  v.  MOORE. 
Chancery  Division.     1892. 

[[1892]  2  Ch.  518]. 

In  1881,  the  defendant,  Edward  J.  Moore,  apprenticed  himself,  for 
the  purpose  of  learning  the  business  of  mechanical  engineering,  to  the 
plaintiffs,  a  firm  of  fire-engine  makers,  for  a  period  of  fi\'^  3ears.  After 
having  served  his  apprenticeshii:),  he  was  taken  b}'  the  plaintiffs  into 
their  employ  as  a  draughtsman,  at  a  salary  of  30s.  a  week.  In  Ma\', 
1891,  Moore  left  the  plaintiffs'  service,  and  entered  the  employment  of 
the  defendants,  Mobbs  &  Co.,  Limited,  makers  of  raachiner}- ;  and 
shortly  afterwards  that  company,  in  conjunction  with  the  defendants, 
the  Sphincter  Grip  Armoured  Hose  Company,  Limited,  commenced  the 
business  of  fire-engine  makers,  under  the  style  of  "The  Fire  Appli- 
ances Company."  From  the  evidence  it  appeared  that  about  two  days 
before  leaving  the  plaintiffs'  emplo}'  the  defendant  Moore,  without  their 
knowledge  or  authoritj',  compiled  a  table  of  dimensions  of  the  various 
tyi^es  of  fire-engines  made  by  the  plaintiffs,  which  dimensions  the 
plaintiffs  claimed  to  be  "trade  secrets ; "  and  the  plaintiffs  stated  their 
belief  that  these  dimensions  were  taken  for  the  purpose  of  being  com- 
municated to  the  defendant  companies,  inasmuch  as  those  companies 
had  recently  exhibited  in  their  shop  for  sale  a  fire-engine  of  the  same 
dimensions  as  those  of  one  of  the  engines  whose  dimensions  were  given 
in  the  table  in  Moore's  possession.  The  plaintiffs  then  commenced  this 
action,  and  now  moved  for  an  interim  injunction  to  restrain  the  defend- 
ant Moore  from  publishing  or  communicating  to  any  person  the  paper 
or  table  of  dimensions  or  the  contents  thereof;  "  which  paper  had  been 
compiled  by  him  in  breach  of  his  contract  of  employment  with  the 
plaintiffs,  and  in  breach  of  the  confidence  reposed  in  him  b}"  the  plain- 
tiffs," and  to  restrain  the  defendant  companies  from  publishing  or  using, 
in  the  construction  of  fire-engines,  or  otherwise  in  the  course  of  their 
trade  or  business,  the  information  so  obtained  from  the  plaintiffs  by 
the  defendant  Moore.  The  defendant  Moore  deposed  that  he  prepared 
the  table  merely  for  his  general  information  ;  that  when  he  left  the 
plaintiffs'  service  he  placed  the  table  with  his  engineering  and  mechan- 
ical text-books ;  that  since  he  had  been  in  the  service  of  the  defendant 
companies  he  had  not  been  emploved  in  designing  or  making  drawings 
for  any  fire-engines  for  which  the  table  or  an}-  information  therein 
could  be  of  the  slightest  use  ;  and  he  denied  ever  having  shown  it  to 
his  present  employers. 

The  managers  of  the  defendant  companies  deposed  that  they  had 
never  made  use  of  or  even  seen  the  table  in  question  ;  and  they  denied 
that  the  engine  referred  to  by  the  plaintiffs  was  of  any  of  the  dimensions 
therein  stated. 


SECT.  IL]  MERRYWEATHER  v.   MOORE.  925 

Warmington^  Q.  C,  and  T.  E.  Scrutton^  for  the  plaintiffs. 

Kerli/,  for  the  defendant  Moore. 

Martin,  Q.  C,  and  Arnold  Statham,  for  the  defendant  companies. 

Kekewich,  J.^  What  is  the  state  of  the  law  as  regards  a  gentleman 
occup3ing  the  position  of  clerk  or  servant  in  the  employ  of  a  professional 
man  or  a  tradesman,  that  is  to  sa}-,  a  person  carrying  on  a  professional 
or  commercial  business?  It  is  laid  down  in  clear  terms  in  several  cases 
which  have  been  cited,  and  there  really  is  no  dispute  about  it.  The  law 
is  taken  from  Tipping  v.  Clarke,  2  Hare,  383  ;  and  that  law  is  repeated 
in  Prince  Albert  r.  Strange,  1  Mac.  &  G.  45.  It  is  again  to  be  found  in 
other  cases,  and  it  is  summed  up  in  a  few  words  in  a  recent  case  which 
was  not  cited,  and  which  I  do  not  refer  to  for  its  facts,  namel}- :  Pollard  v. 
Photographic  Compan}',  40  Ch.  D.  345,  before  Mr.  Justice  North,  who 
says,  40  Ch.  D.  354  :  "  It  is  quite  clear  that,  independentl}'  of  any  ques- 
tion as  to  the  right  at  law,  the  Court  of  Chancery  always  had  an  original 
and  independent  jurisdictic  n  to  prevent  what  that  court  considered  and 
treated  as  a  wrong,  whether  arising  from  a  violation  of  an  unquestionable 
right  or  from  breach  of  contract  or  confidence ;  "  and  for  that  he  refers 
to  Prince  Albert  v.  Strange.  As  pointed  out  by  Mr.  Scrutton  in  replj", 
it  is  sometimes  difficult  to  say  whether  the  court  has  proceeded  on  the 
implied  contract  or  the  confidence,  for  I  will  put  aside  once  for  all  any 
cases  arising  on  express  contract.  Perhaps  the  real  solution  is  that 
the  confidence  postulates  an  implied  contract :  that,  where  the  court 
is  satisfied  of  the  existence  of  the  confidential  relation,  then  it  at  once 
infers  or  implies  the  contract  arising  from  that  confidential  relation,  — 
a  contract  which  thus  calls  into  exercise  the  jurisdiction  to  which  I 
have  referred.^  .  .  . 

Now,  here  I  have  a  gentleman  formerl}'  apprenticed  to  the  plaintiffs  ; 
apprenticed,  of  course,  to  learn  his  trade.  It  is  immaterial  to  consider 
whether  he  paid  a  fee,  or  what  the  terms  of  his  articles  were  ;  generally 
speaking,  the  object  was,  to  him  that  he  should  learn  his  trade,  to  them 
that  he  should  give  them,  besides  any  fee  which  he'  might  have  paid, 
such  services  as  he  could  perform.  No  question  arises  respecting  his 
duties  during  that  apprenticeship.  If  there  did,  I  might  have  thought 
it  right  furtlier  to  considet  the  matter  ;  but  after  the  termination  of  his 
apprenticeship  he  is  taken  into  the  employment  of  his  principals  as  a 
paid  clerk  ;  and  from  that  time  forward  the  duty  to  instruct  on  the 
part  of  the  employer  ceases,  and  then  the  bargain  must  be  —  I  am  not 
told  what  it  actually  was  —  that  the  clerk  shall  give  his  full  time  dur- 
ing the  ordinary  office  hours  to  the  employer  in  exchange  for  proper 
accommodation  and  proper  remuneration,  all  which  is  a  matter  of  bar- 
gain. I  cannot  imply  from  that  relation  any  obligation  on  the  part 
of  the  employer  to  instruct  the  clerk,  or  to  enable  him  to  inform  him- 

1  After  explaining  the  inconvenience  of  trying  the  question  on  motion.  —  Ed. 

2  Here  Renter's  Telegram  Co.  v.  Byron,  43  L.  J.  n.  8.  Ch.  661  (1874),  was  explained 
There  is  further  comment  on  that  case  in  Lamb  v.  Evans  [1893]  1  Ch.  218,  226,  231- 
232  (C.  A.  1892). —  Ed. 


926  MERRYWEATHEK  V.    MOORE.  [CHAP.  VII. 

self  otherwise  than  by  doing  his  work.  If  he  is  able,  in  the  progress  of 
his  work,  to  learn,  an  object  which  ho  ought  of  course  to  have  before  him, 
that  will  be  so  much  the  better  for  him  in  the  course  of  his  employment 
as  giving  him  a  claim  to  higher  remuneration  and  a  better  position,  and 
also  better  for  him  in  future  years  ;  but  I  see  no  obligation  on  the  part 
of  the  employer  to  instruct  him,  or  to  give  him  the  opi)ortunit3',  other- 
wise than  by  doing  his  work,  of  instructing  himself.  I  see  no  obliga- 
tion on  the  part  of  the  employer  to  put  the  books  and  materials  at  his 
disposal  for  the  purpose,  if  he  so  pleases,  of  employing  his  spare  hours 
in  the  advancement  of  his  learning  in  tlie  particular  trade.  It  is  simply 
a  bargain  that,  for  so  much  mone}-  or  other  remuneration,  the  clerk 
shall  perform  such  and  such  services.  He,  being  in  that  relation, 
thinks  fit,  within  a  few  days  of  his  leaving  the  service  of  his  employers, 
and  when  he  of  course  knew  that  he  was  leaving  their  service,  and 
when  therefore  anything  that  he  did  would  be  of  no  advantage  to  them, 
to  draw  out  this  table.  It  may  be  that  this  table  was  compiled  from 
data  which  were  at  his  disposal  as  clerk  in  the  employment  of  the 
plaintiffs.  It  may  be  that  with  care  all  these  details  might  have  been 
obtained  b}-  inspection  of  the  different  engines  which  were  either  at 
hand  or  available,  perhaps,  through  working  drawings  or  otherwise ; 
but  in  this  particularly  compendious  form  it  is  common  ground  that 
these  materials  did  not  exist.  Mr.  Moore  considered  it  to  be  for  his 
benefit  that  they  should  exist,  and  exist  in  his  possession  ;  and  he  must 
be  taken,  whatever  he  says,  to  have  intended  to  use  them  for  his  own 
purposes.  Was  it  lawful  for  him  to  do  that?  Is  it  right  that  he  should 
either  retain  or  use  these  materials?  If  he  can  carr}'  them  in  his  head, 
no  one  can  prevent  his  doing  that  and  making  use  of  them.  But  the 
question  is,  is  not  this  an  abuse  of  the  confidence  necessarily  existing 
between  him  and  his  emplo^'ers,  —  a  confidence  arising  out  of  the  mere 
fact  of  employment,  the  confidence  being  shortly  this,  that  the  servant 
shall  not  use,  except  for  the  purposes  of  service,  the  oppoitiinities  which 
that  service  gives  hira  of  gaining  information?  In  my  opinion,  though 
I  admit  the  question  to  be  one  of  some  novelty  and  difficult}',  this  is  an 
abuse  of  the  confidence  necessarily  arising  out  of  the  circumstances  ; 
and  I  think  the  abuse  is  shown  and  evidenced  by  the  fact  of  this  table 
having  been  compiled  during  the  last  few  days  of  his  service,  when  it 
is  idle  to  sa}'  that  it  was  was  done  for  any  purpose  that  could  be  of  the 
slightest  advantage  to  the  employers. 

Mr.  Scrutton  made  an  extremely  valuable  remark  in  his  repl}-.  If 
Mr.  Moore  was  at  liberty  to  compile  this  table  from  the  materials  be- 
fore him,  he  might  have  made  extracts  from  the  working  drawings 
which  were  no  doubt  under  his  hand :  he  might  have  made  copies  of 
the  working  drawings  as  a  whole  or  of  an}'  part ;  he  might  have  copied 
that  which,  without  being  patented  or  protected  b}'  a  trade-mark,  was 
nevertheless  peculiarly  valuable  to  the  plaintiff's  firm,  and  have  carried 
awa}'  elsewhere  the  means  of  doing  that  which  he  had  learnt  to  do 
there.     One  might  suppose  other  abuses,  but  the  working  drawings 


BECT.  II.]  MERRYWEATIIER   V.    MOORE.  927 

furnish  an  example  which  seems  to  me  directly  apposite.  It  is  impossi- 
ble to  draw  a  line  with  any  accuracj-  and  to  say  that  to  do  this  would  be 
an  abuse  of  the  confidence,  and  to  do  that  would  not.  It  is  impossible 
to  la}-  down  a  general  rule  with  reference  to  all  trades  and  all  pro- 
fessions. The  circumstances  ma}-  vary.  It  was  put  in  the  course  of 
argument  that  the  pupil  of  a  conveyancer  copies  precedents.  The 
answer  is  that,  though  no  express  contract  has,  1  suppose,  ever  been 
made,  it  is  certainly  the  unwritten  law  of  the  profession  that  barristers 
who  take  pupils  shall  allow  them  to  have  their  books  of  precedents, 
not  only  for  consultation,  but  to  copy  ;  and  we  all  know  that,  not  only 
as  regards  conveyancers'  precedents,  but  still  more,  perhaps,  as  regards 
pleading  precedents,  in  olden  times  they  were  of  such  great  value  that 
many  gentlemen  went  into  particular  chambers  for  the  mere  purpose  of 
employing  themselves  in  that  dry  work  of  copying  precedents.  We  all 
know  what  a  long  time  Lord  Campbell  spent  in  copying  precedents  in 
a  pleader's  chambers.  I  say  one  cannot  draw  the  line  exactly  ;  but  the 
present  case,  for  the  reasons  I  have  mentioned,  seems  to  me  to  go  be- 
yond the  line  and  to  be  an  abuse  of  confidence,  and  therefore  I  think 
Mr.  Moore  must  be  restrained  from  publishing  or  communicating  to 
any  person  this  particular  paper  or  the  contents  thereof. 

As  regards  the  companies,  there  is  certainly  an  element  of  suspicion 
in  the  case.  There  is  a  good  deal  to  be  said  in  support  of  that  sus- 
picion, but  the  evidence  displaces  it  for  the  present  purpose  ;  and  as 
Mr.  Marten  is  willing  on  their  behalf  that  the  order  shall  contain  an 
express  disclaimer  of  their  intention  to  make  use  of  this  paper  for 
any  purpose,  I  think  that  I  ought  not  to  grant  any  injunction  against 
them.  I  come  to  that  conclusion  on  the  ground  that  they  have  not 
threatened  to  use  it,  that  there  is  no  proof  of  their  intention  to  use  it, 
which  intention  they  have  disclaimed,  and  that  the  evidence  has  not 
established  any  reasonable  probability  of  their  using  it.  Possibly  a 
case  may  be  made  hereafter  against  them,  but  I  will  not  prejudice  that 
question  either  one  way  or  the  other  by  making  any  comments  on  the 
evidence  beyond  what  I  have  already  made.  I  will  leave  that  entirely 
open  ;  and  with  the  same  view,  in  order  that  there  may  be  no  indication 
of  any  opinion  on  my  part,  which  I  may  say  candidly  I  have  not  formed, 
I  had  better  deal  with  the  costs  by  making  them  costs  in  the  action. 

Accordingly  there  will  be  an  interim  injunction  against  the  defendant, 
Mr.  Moore,  but  no  order  against  the  defendant  companies,  upon  their, 
by  their  counsel,  disclaiming  any  intention  to  publish  or  use  this  paper 
or  its  contents.  The  costs  of  the  plaintiffs  and  of  the  defendant 
companies  will  be  costs  in  the  action.^ 

1  See  Lamb  v.  Evans  [1893]  1  Ch.  218  (C.  A.  1892);  Eobb  v.  Green  [1895]  2  Q. 
B.  1.  — Ed. 


928  PALLISEK   V.   O&D.  [CHAP.  VIII. 


CHAPTER  VIII. 
DELEGATION   BY  AN   AGENT. 


SECTION    I. 

The  Rule. 


PALLISER  t'.  ORD. 

Nisi  Prius.     1724. 

[Bunbury,  166.] 

Debt  was  brought  upon  the  certificate  of  the  commissioners  for 
stating  the  debts  due  to  the  army  pursuant  to  the  Stat.  6  Geo.  for  one 
hundred  and  five  pounds  eighteen  shillings  and  seven  pence  farthing, 
certified  to  be  due  to  the  plaintifl?",  for  which  the  statute  gave  an  action 
of  debt  upon  a  demand  made  and  refusal.  In  proving  the  demand,  it 
was  of  one  hundred  and  five  pounds  eighteen  shillings  and  six  pence 
farthing,  instead  of  seven  pence  farthing,  which  varied  from  the  sum 
certified.  Lord  Chief  Baron  Eyre  (before  whom  this  cause  was  tried) 
was  of  opinion  that  this  certificate  was  in  the  nature  of  a  judgment; 
that  it  being  a  debt  thereby  reduced  to  a  certainty,  and  the  demand 
being  of  a  different  sum  it  was  fatal ;  and  thereupon  the  plaintiflf  was 
nonsuited. 

NoTA,  The  plaintiff  gave  an  authority  to  Moore^  his  attorney,  to 
make  the  demand,  or  to  authorize  any  other  person  to  do  it,  who  ac- 
cordingly executed  a  letter  of  attorney  to  another  to  do  it ;  so  it  was 
objected,  for  the  defendant,  that  a  naked  authority  could  not  be  dele- 
gated. But  the  Chief  Baron  was  of  opinion  it  might  by  express  au- 
thority for  that  purpose,  otherwise  not.-' 

1  Ace. :  Doe  d.  Rhodes  v.  Robinson,  3  Bing.  N.  C.  677  (1837). 

See  Cropp's  Case,  Godbolt,  38  (1557-58) ;  Combes'  Case,  ante,  p.  33;  Southerne  v. 
Howe,  2  Rolle's  Rep.  5,  6  (1617-18),  s.  c  Cro.  Jac.  468.  — Ed. 


SECT.  I.]  STEPHENS   V.   BADCOCK.  929 


CATLIN  V.   BELL. 

Nisi  Prius.     1815. 

[4  Camp.  183.] 

This  was  an  action  of  assumpsit  for  not  accounting  for  goods  deliv- 
ered by  tlie  plaintiff  to  the  defendant,  to  be  sold  on  her  account. 

The  defendant  is  master  of  a  ship  trading  from  this  country-  to  the 
West  Indies,  and  the  plaintiff  intrusted  to  him  a  quantity  of  milliner}' 
goods,  which  he  undertook  to  sell  for  her  there. 

The  first  defence  was  that  these  goods  had  paid  no  duty  on  exporta- 
tion ;  and  it  was  proved  that  the  defendant's  ship,  in  which  they  were 
carried,  cleared  oat  at  the  custom-house  in  ballast.  It  was  contended, 
therefore,  that  the  adventure  was  illegal,  and  that  no  action  could 
arise  out  of  it. 

Lord  Ellenborough.  You  do  nothing  unless  you  show  that  it 
formed  part  of  the  agreement  between  tlie  parties  to  defraud  govern- 
ment of  the  duties.  This  would  contaminate  the  contract  on  which 
the  action  is  founded  ;  but  it  cannot  be  affected  by  the  simple  circum- 
stance of  the  ship  clearing  out  in  ballast. 

It  was  then  stated  that  the  defendant,  not  being  able  to  sell  the 
goods  in  the  island  to  which  the}-  were  destined,  had  sent  them  to  the 
Caracas  in  search  of  a  market,  where  they  had  been  destroyed  by  an 
earthquake ;  but 

Lord  Ellenborough  clearly  held  that  there  being  a  special  confi- 
dence reposed  in  the  defendant,  with  respect  to  the  sale  of  the  goods, 
he  had  no  right  to  hand  them  over  to  another  person,  and  to  give  thenc 
a  new  destination.  The  plaintiff  had  a  verdict. 

Park  and  Barjiewall,  for  the  plaintiff. 

Topping,  for  the  defendant. 


STEPHENS   V.  BADCOCK. 
King's  Bench.     1832. 

[3  B.  Sr  Ad.  354.] 

Assumpsit  for  money  had  and  received,  &c.  Plea,  the  general  issue. 
At  the  trial  before  Taunton,  J.,  at  the  Cornwall  Lent  assizes,  1831,  the 
following  facts  appeared.  The  plaintiff  was  rector  of  Ludgvan  near 
Penzance  ;  the  defendant  had  been  clerk  to  Mr.  Samuel  John,  an  attor- 
ney, whom  the  plaintiff  had  for  several  years  employed  to  receive  his 
rents  and  tithes.  On  the  10th  of  August,  1829,  John,  being  in  embar- 
rassed circumstances,  left  his  home  ;  he  had  not  returned,  and  a  com- 
mission  of  bankrupt   had   issued  against  him,  when  this  action  was 

59 


930  STEPHENS    V.    BADCOGK.  [CHAP.  VIII. 

brought.  After  bis  departure,  and  before  the  cause  of  it  was  known  in 
his  office,  Reynolds,  his  principal  clerk,  who  had  occasionally  received 
payments  for  him  in  his  absence,  went  to  attend  Bodmin  assizes,  leav- 
ing the  defendant  behind.  At  the  assizes,  at  some  time  from  the  18th 
to  the  20th  of  August,  Reynolds  first  heard  that  Jolni  was  not  likely  to 
return.  In  Reynolds's  absence  one  of  the  plaintiff's  parishioners  called 
at  the  office  to  pay  £9  Os.  '2d. ,  on  account  of  a  composition  for  tithes. 
The  defendant  said  that  Mr.  John  was  absent,  but  he  would  receive 
the  money  (which  he  was,  in  fact,  autliorized  by  Reynolds  to  do)  ;  it 
was  paid  to  him,  and  he  gave  a  stamped  receipt  for  the  sum  as  follows  : 
"Received  20th  August,  1829,  of  Mr.  H.  T.,  £9  Os.  2d.,  for  half  a 
3'ear's  composition  for  tithes  due  to  Rev.  J.  S.  at  Lady-day  last  past, 
for  Mr.  S.  John,  John  Badcock."  On  Reynolds's  return  the  defendant 
accounted  to  him  for  other  sums  received  during  his  absence,  but  said 
nothing  of  this  ;  nor  did  Reynolds  know  of  this  payment  till  the  end  of 
the  year.  Reynolds  stated  that  at  the  time  of  these  transactions  John 
was  indebted  to  the  plaintiff  on  the  balance  of  account  between  them. 
It  did  not  appear  that  the  defendant  had  any  claim  upon  John.  The 
defendant  having  refused  to  pay  the  plaintiff  the  £9  (which  he  had  not 
paid  over  to  John  or  his  estate),  this  action  was  brought  to  recover  it. 
Two  objections  in  point  of  law  were  taken  at  the  trial :  first,  that,  as 
the  defendant  acted  only  as  clerk  to  John  in  receiving  the  sum  in  ques- 
tion, the  action  should  have  been  brought  against  his  principal ;  to 
which  point  Sadler  v.  Evans,  4  Burr.  1984,  and  Miller  v.  Aris,  1  Selw. 
N.  P.  92,  n.,  8th  ed.,  in  which  Lord  Ken\'on  recognized  the  principle  of 
the  former  case,  were  cited :  secondly,  that  the  plaintiff  could  not 
recover  the  money  as  had  and  received  b}'  the  defendant  to  his  use, 
there  being  no  privity  of  contract  between  them ;  as  to  which  Williams 
V.  Everett,  14  East,  582,  was  referred  to.  Taunton,  J.,  thought  the 
money  was  recoverable,  as  having  been  paid  to  the  defendant  under  a 
mistake,  and  not  paid  over  by  him  to  his  principal  before  notice.  He 
therefore  directed  a  verdict  for  the  plaintiff,  giving  leave  to  move  to 
enter  a  nonsuit.  A  rule  nisi  having  been  obtained  for  that  purpose, 
Praed,  on  a  former  day  of  the  term  showed  cause.  ^ 
Follett^  contra.  Cur.  adv.  vult. 

Lord  Tenterden,  C.  J.,  now  delivered  the  judgment  of  the  Court. 
After  stating  the  facts  of  the  case,  his  Lordship  proceeded  as  follows : 
"Under  these  circumstances  my  learned  brother  who  tried  the  cause 
thought  that  the  sum  in  question  might  be  recovered  from  the  defendant 
as  mone}'  paid  to  him  in  a  mistake.  But  we  are  of  opinion  that  it 
cannot  be  so  recovered.  It  is  perfectlj'  clear  that  the  defendant  re- 
ceived it  as  the  agent  or  servant  of  John,  and  must  have  paid  it  over  to 
him  if  he  had  returned.  The  receipt  given  was  the  receipt  of  John, 
and  (if  he  had  not  been  bankrupt)  would  have  been  evidence  against 

^  Before  Lord  Texterdex,  C.  J.,  Littledale,  Taunton,  and  Patteson,  JJ.— 
Rep. 


SECT.  I.]  LOOMIS,   CONGER,   &   CO.    V.    SIMPSON.  931 

him  in  an  action  brought  by  the  present  plaintiff.  This  differs  from 
the  case  decided  in  the  former  part  of  the  term,  where  a  part}-  was 
held  to  have  received  money  belonging  to  a  bankrupt's  estate,  on 
behalf  of  the  general  body  of  creditors,  and  not  for  an  assignee  who 
had  become  lunatic.  There  tlie  defendant  could  have  no  authorit}-  to 
receive  it  for  the  lunatic  assignee  ;  here  Badcock  was  clearly  the  agent 
of  John  when  he  received  the  mone}-,  and  did  receive  it  in  that  capacit}-. 
On  the  ground  then  that  there  was  no  privitj-  of  contract  between  the 
defendant  and  plaintiff,  but  that  the  privity  of  contract  was  between 
the  defendant  and  John,  and  between  John  and  the  plaintiff,  we  think 
the  rule  for  a  nonsuit  must  be  made  absolute.  Jiule  absolute. 


LOOMIS,   CONGER,    &   CO.  v.  SIMPSON. 
Supreme  Court  of  Iowa.     1862. 

[13  Iowa,  532.] 

Appeal  from  the  Dubuque  City  Court. 

This  action  was  brought  to  recover  of  defendant  a  sum  of  money 
which  plaintiffs  allege  to  be  due  for  goods  delivered  to  be  sold  on  com- 
mission, for  which  he  has  failed  to  account.  Defendant  insists  that  he 
was  instructed  to  sell  a  portion  of  the  goods  in  Dubuque  —  to  ship  the 
other  east  and  south  —  that  he  had  accounted  for  all  those  sold  either 
in  Dubuque  or  elsewhere,  for  which  he  (defendant)  has  received  pay- 
ment.    Trial,  and  judgment  for  plaintiffs. 

tTokn  L.  Harvey^  for  the  appellant. 

Cooley,  Blatchley  S  Adams ^  for  the  appellee. 

Wright,  J.  The  points  made  arise  upon  certain  instructions,  given 
and  refused.^  .  .  . 

Two  instructions  were  asked  and  refused,  as  follows  :  — 

1.  If  the  jur}'  believe  that  Simpson  asked  plaintiffs  whether  he 
should  send  the  goods  to  Memphis  for  sale,  and  the}'  replied  that  he 
should  do  with  them  as  he  would  with  his  own,  and  he  thereupon  sent 
them  to  a  factor  of  good  credit,  defendant  is  not  liable  for  the  default 
of  such  factor. 

2.  If  the  employment  of  a  sub-agent  was  necessary,  and  that  fact 
was  known  to  plaintiffs,  and  if  defendant  selected  an  agent  of  capacity 
and  credit,  he  is  not  liable  for  the  default  of  such  sub-agent. 

If  the  testimony  showed  that  Morris  (the  merchant  at  Memphis) 
was  substituted  as  the  agent  or  factor  of  plaintiffs  with  their  consent, 
express  or  implied,  these  instructions  were  correct,  and  should  have 

1  A  passage  as  to  practice  has  been  omitted.  — Ed. 


932  LOOMIS,   CONGER,   &   CO.    V.    SIMPSON.  [CHAP.  VIII. 

been  given.  As  a  rule  it  is  true  that  where  the  employment  of  a  sub- 
agent  is  necessar}',  the  agent,  if  he  makes  a  fit  and  proper  selection,  is 
not  responsible.  And  it  is  equally  true  as  a  rule  that  in  the  case  of  a 
factor  or  broker,  the  authority  cannot  be  delegated.  (Cochran  u. 
Islam,  2  M.  &  S.  301  ;  Solly  v.  Rathbone,  Id.  298  ;  Catlin  v.  Bell,  4 
Camp.  183;  1  Pars.  Cont.  71,  84.)  But  we  suppose  that  the  principal 
ma}'  confer  the  power  of  delegation  or  substitution,  and  that  this  may 
be  done  in  writing,  as  by  the  letters  conferring  the  power  upon  the 
agent,  by  words,  or  by  acts,  which  acts  or  words  ma}-  by  implication 
give  the  authority  or  ratify  the  substitution  after  it  is  made.  It  must 
be  remembered,  however,  that  there  is  a  wide  difference  between  the 
employment  of  a  servant  or  sub-agent  b}'  the  factor,  and  the  delega- 
tion of  authorit}'  or  a  substitution.  The  factor  may  act  througli  or  by 
the  hand  of  another,  and  yet  there  be  no  pretence  that  there  has  been 
a  substitution  in  such  a  sense  as  to  bind  the  principal.  And  until  the 
fact  of  substitution,  with  the  consent  and  approbation  of  the  principal, 
is  once  established  (or  his  subsequent  ratification  or  confirmation),  there 
can  of  course  be  no  ground  for  claiming  that  his  remedy  is  against  the 
substitute,  instead  of  the  original  agent. 

In  this  case  the  instructions  refused  were  predicated  upon  two  facts. 
These  were,  that  if  plaintiffs  told  defendant  "  that  he  should  do  with 
the  goods  as  he  would  with  his  own,"  or  if  "  the  employment  of  a  sub- 
agent  was  necessary,  and  that  fact  was  known  to  plaintiffs,"  then,  in 
either  event,  defendant  had  a  right  to  send  the  goods  to  a  factor  of 
good  credit,  to  whom,  and  not  defendant,  plaintiffs  should  look  for 
their  proper  disposition.  We  do  not  think,  however,  that  if  the  jury 
had  found  both  of  these  facts  in  favor  of  defendant,  it  necessarily  fol- 
lowed that  he  would  not  be  liable  for  the  default  of  the  person  so 
selected.  The  inquiry  still  remained,  was  this  person  selected  as  the 
servant  of  the  agent  or  factor,  or  did  he  become  the  agent  of  the  prin- 
cipal ?  It  by  no  means  follows,  where  produce,  for  instance,  is  in- 
trusted to  a  commission  merchant  in  Dubuque,  and  sent  forward  by 
him  to  his  correspondent  or  agent  at  Chicago  or  St.  Louis,  that  a 
privity  of  contract  exists  between  such  correspondent  and  principal,  to 
the  extent  that  the  original  factor  is  released  and  the  sub-agent  only  is 
liable.  Nor  does  it  make  any  difference  that  the  principal  or  consignor 
knows  that  it  must  and  will  be  sent  forward  to  find  a  market.  He  has 
a  right  to,  and  is  presumed  to  repose  confidence  in,  the  financial  ability 
and  business  capacit}^  of  the  person  so  employed,  and  if  such  factor 
employs  other  persons,  he  does  so  upon  his  own  responsibility ;  and 
having  greater  facilities  for  informing  himself  and  extending  his  busi- 
ness relations,  upon  him,  and  not  upon  the  principal,  should  fall  the 
loss  of  any  negligence  or  default.  If,  however,  another  person  has 
been  substituted  who,  with  the  knowledge  and  approbation  of  the  prin- 
cipal, takes  the  place  of  the  original  factor,  or  if  such  substitution  is 
necessary  from  the  very  nature  of  the  business,  and  this  fact  is  known 
to  the  principal,  the  liability  of  the  substitute  may  be  direct  to  the 


SECT.  I.]  LOOMIS,    CONGEK,    &    CO.    t.    SIMPSON.  933 

priucipiil,  depending  upon  questions  of  good  faith  and  the  like,  on  the 
part  of  the  factor  in  selecting  the  substitute. 

Under  the  circumstances,  we  think  the  instructions  were  properly 
refuscd,  and  the  judgment  is,  therefore,  Affirmed.^ 

1  In  Rossiter  v.  Trafalgar  Life  Assurance  Association,  27  Beav.  377,  381,  382 
(18.59),  KoMiLLY,  M.  R.,  said  :  "  It  is  undoubtedly  quite  true,  that  au  agent  cannot 
delegate  his  authority  to  another  person  ,  but  I  apprehend  it  to  be  equally  clear,  that 
an  agent  is  entitled  to  perform,  and  must  necessarily  perform  a  great  number  of  his 
acts  and  functions  through  the  aid  of  persons  to  whom  he  delegates  his  authority. 
Thus,  for  instance,  when  a  merchant  receives  goods  from  abroad  for  sale,  and  he 
deputes  his  foreman  to  go  to  the  proper  place  for  selling  such  goods,  and  the  foreman 
sells  them  accordingly;  in  that  case,  it  would  be  impossible  for  the  consignor  to  say 
that  the  sale  was  void,  because  the  merchant  did  not  personally  sell  them  himself,  but 
employed  another  person  for  that  purpose,  by  whom  the  sale  was  effected.  The 
merchant  would,  no  doubt,  be  answerable  for  all  the  acts  of  liLs  foreman,  but  provided 
the  acts  done  were  proper  and  within  the  scope  of  his  authority,  they  would  be  the 
acts  of  the  merchant  himself." 

In  Campbell  v.  Reeves,  3  Head,  226  (1859),  consignors  brought  an  action  of  as- 
sumpsit against  their  factors,  and  the  Supreme  Court  of  Tennessee,  affirming  a  judg- 
ment for  the  plaintiffs,  said,  through  McKisney,  J. :  "  Campbell  &,  Co.  sold  and 
transferred  their  busine.ss  to  Marley  «fc  Ricardi,  and  .  .  .  turned  over  to  the  latter  a 
portion  of  the  consignments  which  then  remained  undisposed  of.  This  was  done 
without  the  knowledge  or  consent  of  the  consignors.  .  .  . 

"  The  circuit  judge  instructed  the  jury  that  the  relation  of  factor  and  principal 
was  one  of  personal  trust  and  confidence.  And  that,  in  general,  where  a  consign- 
ment of  goods  was  made  to  a  factor  for  sale  on  account  of  the  principal,  the  factor 
would  have  no  authority  to  deliver  over  the  goods  to  a  third  party  for  sale,  without 
the  assent  of  the  principal,  unless  some  usage  of  trade  to  the  contrary  prevailed, 
or  the  act  were  'subsequently  ratified  by  the  principal.  And  that  the  factor  making 
such  transfer  —  without  the  previous  or  subsequent  sanction  of  the  principal,  and  in 
the  absence  of  any  usage  or  custom  of  trade  —  would  be  liable  for  the  value  of  the 
goods  thus  transferred.  ...  j 

"  It  is  true  that  a  factor  has  a  special  property  in  the  goods  intrusted  to  him  for 
sale,  and  a  lien  on  them  for  his  factorage  or  commission,  and  he  may  sell  the  goods 
in  his  own  name.  But,  in  general,  he  has  no  power  to  delegate  his  authority  to  an- 
other person,  —  it  must  be  executed  by  him  personally,  unless  authority  to  substitute 
another  in  his  stead  was,  expressly  or  impliedly,  conferred  upon  him  by  his  priucipaJi. 
Story  on  Agency,  §§  13,  110,  201. 

"  If,  then,  the  factor  dispose  of  the  goods,  by  a  delegation  of  his  authority  to  a 
third  person,  without  the  sanction  of  the  principal,  or  of  a  usage  of  trade,  what  is  the 
legal  consequence  ?  Clearly,  it  is  a  conversion  of  the  goods  by  the  factor.  This 
must  necessarily  be  so.  The  act  being  unauthorized,  no  privity  is  thereby  created 
between  such  third  person  and  the  principal.  Such  wrongful  act  cannot  be  held  to 
confer  on  the  third  person,  as  respects  the  principal,  the  rights,  duties,  or  obligations 
of  the  factor  himself.  Wherever  authority  to  appoint  a  sub-agent  exists,  a  privity  is 
created  between  the  principal  and  such  sub-agent,  and  the  latter  will  be  held  directly 
responsible  to  the  principal.  But,  if  no  such  privity  exists,  the  sub-agent  would  be 
responsible  to  his  immediate  employer ;  and  the  remedy  of  the  principal  is  against 
his  agent.     Story  on  Agency,  §§  13,  201. 

"  The  unauthorized  disposal  of  the  goods  by  the  factor  being  a  conversion,  it  clearly 
follows  that  the  principal  has  an  election  either  to  sue  in  trover,  grounding  his  action 
on  the  tort,  or  to  waive  the  tort  and  recover  the  value  of  the  goods  in  an  action  of 
assumpsit,  based  upon  the  breach  of  the  implied  contract." 

In  Darling  v.  Stanwood,  14  Allen,  .504  (1867),  Foster,  J.,  for  the  court  said  :  "  In 
a  business  which  requires  or  justifies  the  delegation  of  an  agent's  authority  to  a  sub- 


934  LOOMIS,   CONGER,    &   CO.    V.    SIMPSON.  [CHAP.  VIII. 

agent,  who  is  not  his  own  servant,  the  original  agent  is  not  liable  for  the  errors  or 
misconduct  of  the  sub-agent  if  he  has  used  due  care  in  his  selection." 

In  De  Bussche  v.  Alt,  8  Ch.  D.  286,  310,  311  (C.  A.  1878),  Thesiger,  L.  J.,  for 
the  court,  said  :  "  As  a  general  rule,  no  doubt,  the  maxim  '  delegdtus  non  potest  delegare ' 
applies  so  as  to  prevent  an  agent  from  establishing  the  relationship  of  principal  and 
agent  between  his  own  principal  and  a  third  person ;  but  this  maxim  when  analyzed 
merely  imports  that  an  agent  cannot,  without  authority  from  his  principal,  devolve 
iipon  another  obligations  to  the  principal  which  he  has  himself  undertaken  to  per- 
sonally fulfil ;  and  that,  inasmuch  as  confidence  in  the  particular  person  employed  ia 
at  the  root  of  the  contract  of  agency,  such  authority  cannot  be  implied  as  an  ordinary 
incident  in  the  contract.  But  the  exigencies  of  business  do  from  time  to  time  render 
necessary  the  carrying  out  of  the  iustructions  of  a  principal  by  a  person  other  than 
the  agent  originally  instructed  for  the  purpose,  and  where  that  is  the  case,  the  reason 
of  the  thing  requires  that  the  rule  should  be  relaxed,  so  as,  on  the  one  hand,  to  enable 
the  agent  to  appoint  what  has  been  termed  '  a  sub-agent '  or  '  substitute '  (the  latter  of 
which  designations,  although  it  does  not  exactly  denote  the  legal  relationship  of  the 
parties,  we  adopt  for  want  of  a  better,  and  for  the  sake  of  brevity) ;  and,  on  the  other 
hand,  to  constitute,  in  the  interests  and  for  the  protection  of  the  principal,  a  direct 
privity  of  contract  between  him  and  such  substitute.  And  we  are  of  opinion  that 
an  authority  to  the  effect  referred  to  may  and  should  be  implied  where,  from  the  con- 
duct of  the  parties  to  the  original  contract  of  agency,  the  usage  of  trade,  or  the 
nature  of  the  particular  business  which  is  the  subject  of  the  agency,  it  may  reasonably 
be  presumed  that  the  parties  to  the  contract  of  agency  originally  intended  that  such 
authority  should  exist,  or  where,  in  the  course  of  the  employment,  unforeseen  emergen- 
cies arise  which  impose  upon  the  agent  the  necessity  of  employing  a  substitute;  and 
that  when  such  authority  exists,  and  is  duly  exercised,  privity  of  contract  arises  be- 
tween the  principal  and  the  substitute,  and  the  latter  becomes  as  responsible  to  the 
former  for  the  due  discharge  of  the  duties  which  his  employment  casts  upon  him,  as 
if  he  had  been  appointed  agent  by  the  principal  himself." 

In  Barnard  v.  Coffin,  141  Mass.  37,  41  (1886),  Field,  J.,  for  the  court,  said  :  "  The 
principle  which  runs  through  the  cases  is,  that  if  an  agent  employs  a  sub-agent  for 
his  principal,  and  by  his  authority,  express  or  implied,  then  the  sub-agent  is  the  agent 
of  the  principal,  and  is  directly  responsible  to  the  principal  for  his  conduct,  and,  so 
far  as  damage  results  from  the  conduct  of  the  sub-agent,  the  agent  is  only  responsible 
for  a  want  of  due  care  in  selecting  the  sub-agent ;  but  if  the  agent,  having  undertaken 
to  do  the  business  of  his  principal,  employs  a  servant  or  agent,  on  his  own  account,  to 
assist  him  in  what  he  has  undertaken,  such  a  sub-agent  is  an  agent  of  the  agent,  and 
is  responsible  to  the  agent  for  his  conduct,  and  the  agent  is  responsible  to  the  princi- 
pal for  the  manner  in  which  the  business  has  been  done,  whether  by  himself  or  by  his 
servant  or  agent."  —  Ed. 


SECT.  II.]  EX  PARTE  SUTTON.  935 

SECTION    II. 

Exceptions^  real  or  apparent. 

Ex  PARTE  SUTTON. 

In  the  matter  of  PETER  MARSHALL,  a  Bankrupt. 

Chancery.     1788. 

[2  Cox,  84.] 

In  August,  1787,  Lewis  and  Potter  came  to  an  agreement  with  Gib- 
son and  Johnson,  bankers  in  London,  that  Gibson  and  Johnson  should 
accept  bills  for  the  use  and  accommodation  of  Lewis  and  Potter ;  but 
which  bills  were  to  be  drawn  by  Peter  Marshall,  the  bankrupt,  and  the 
account  was  therefore  opened  in  the  name  of  Peter  Marshall.  Lewis 
and  Potter  were  to  provide  Gibson  and  Johnson  with  money  before  the 
bills  became  due,  so  as  to  prevent  their  ever  being  in  advance ;  and  for 
this  Gibson  and  Johnson  were  to  receive  \  per  cent  commission  on  the 
bills  so  accepted. 

Peter  Marshall,  accordingly,  wrote  a  letter  to  Lewis  and  Potter,  by 
which  he  authorized  them  "to  make  use  of  his  name,  by  procuration 
or  otherwise,  to  draw  bills  on  Gibson  and  Johnson."  The  bill  in  ques- 
tion was  drawn  by  one  of  the  clerks  of  Lewis  and  Pottei',  and  was 
signed, 

By  procuration  of  Peter  Marshall, 

Robert  Edgcumbe. 

The  petitioner  was  an  indorsee  of  this  bill  for  a  valuable  considera* 
tion,  and  applied  to  prove  it  under  the  commission  against  Peter  Mar- 
shall, but  was  refused. 

The  ground  of  the  refusal  was,  that  this  power  of  drawing  in  the 
name  of  Peter  Marshall,  being  given  only  to  Lewis  and  Potter,  could 
not  be  delegated  by  them  to  any  other  person  ;  and  that  Marshall  was 
not  bound  by  this  signature  of  the  clerk. 

Lord  Chancellor.^  In  any  case  where  the  signature  would  not  be 
good  against  Lewis  and  Potter  themselves  it  will  not  bind  Marshall ; 
but  wherever  this  sort  of  authority  is  given,  I  must  take  it  as  given  to 
be  made  use  of  in  the  common  course  of  business  ;  and  this  clerk  only 
did  in  the  name  of  Marshall  what  he  used  to  do  in  the  name  of  Lewis 
and  Potter,  and  the  petitioner  must  therefore  be  at  liberty  to  prove  his 
debt. 

^  Lord  Thurlow.  —  Ed. 


936  ALLEN   V.    merchants'    BANK.  [CHAP.  VIII. 


BOOTH   V.  MISTER. 

Nisi  Pkius.     1835. 

[7  C.  4'  P.  66.] 

Case.  The  declaration  stated  that  the  cart  of  the  defendant  was  so 
negligently  driven  by  the  defendant's  servant  that  it  struck  against  a 
cabriolet  in  which  the  plaintiff  was  riding,  whereb}-  the  plaintiff  was 
injured.     Plea,  not  guilty. 

It  appeared  that  a  servant  of  the  defendant,  named  Usher,  whose 
duty  it  was  to  have  charge  of  the  cart,  was  riding  in  the  cart  at  the 
time  when  the  accident  occurred,  but  that  another  person,  who  was 
not  in  the  defendant's  service,  was  driving  the  cart,  Usher  having  given 
him  the  reins. 

^rle  and  G.  Henderson,  for  the  defendant,  submitted  that  the  de- 
fendant was  not  liable,  on  the  ground  that,  as  a  person  not  in  the 
defendant's  service  was  driving  at  the  time  of  the  accident,  the  allega- 
tion that  the  cart  was  driven  by  the  defendant's  servant  was  not  sus- 
tained by  the  evidence. 

Lord  Abinger,  C.  B.  I  will  reserve  the  point,  but  I  think  that  the 
evidence  is  sufficient  to  support  the  allegation.  As  the  defendant's 
servant  was  in  the  cart,  I  think  that  the  reins  being  held  by  another 
man  makes  no  difference.  It  was  the  same  as  if  the  servant  had  held 
them  himself.  Verdict  for  the  plaintiff'.^ 

Piatt  and  Ball,  for  the  plaintiff. 

Erie  and  G.  Henderson^  for  the  defendant. 


S.  &  M.  ALLEN  V.  THE   MERCHANTS'   BANK. 
Court  of  Errors  of  New  York.     1839. 

[22  Wmd.  215.] 

Error  from  the  Supreme  Court.  This  was  an  action  of  assumpsit, 
brought  in  the  Superior  Court  of  the  city  of  New  York  by  S.  &  M. 
Allen  against  the  bank,  to  recover  the  amount  of  a  bill  of  exchange, 
drawn  in  New  York  on  a  mercantile  house  in  Philadelphia,  and  depos- 
ited by  the  plaintiffs  with  the  Merchants'  Bank  in  New  York  for  collec- 
tion, which  was  lost  to  the  plaintiffs  in  consequence  of  the  omission  to 
give  notice  of  the  non-acceptance  to  the  indorsers.  On  26th  June, 
1830,  F.  I.  Spooner,  at  the  city  of  New  York,  drew  a  bill  of  exchange 
on  Messrs.  Boiler  &  Baker,  of  Philadelphia,  for  $600,  payable  five  days 

^  No  motion  was  made  on  the  point  reserved.  —  Rep. 
See  Althorf  v.  Wolfe,  22  N.  Y.  355  (1860).  —  Ed. 


SECT.  II.]  ALLEN    V.    MERCHANTS*    BANK.  937 

after  date  to  his  own  order.  He  indorsed  the  bill  to  James  M. 
Gould,  who  sold  it  to  the  plaintiffs  and  indorsed  his  name  upon  it. 
The  i>laintiffs,  on  the  da}'  of  its  date,  deposited  the  bill  for  collection 
with  the  Merchants'  Bank,  who  sent  it  to  the  Philadelphia  Bank  in  the 
city  of  Philadelphia.  On  28th  June,  the  Philadelphia  Bank  delivered 
the  bill  to  its  notary,  who,  on  the  same  da}',  presented  it  to  the  drawers 
for  acceptance,  which  being  refused,  he  noted  the  bill  for  non  accept- 
ance, and  returned  it  to  the  bank,  but  omitted  to  give  notice  of  non- 
acceptance  to  the  indorsers.^  .  . 

Mr.  Justice  Oaklet  charged  the  jurj',  that  the  defendants,  upon  gen- 
eral principles  of  law,  and  independent  of  any  custom  or  usage,  or  of 
any  agreement,  express  or  implied,  were  onl}'  bound  to  transmit  the 
bill  to  Philadelphia  in  due  time  and  to  some  competent  agent ;  and 
were  not  liable  for  any  negligence  or  omission  of  such  agent  in  giving 
notice  of  the  non-acceptance  of  the  bill.  .  .  .  To  this  charge  the 
plaintiffs  excepted.  Tlie  jury  found  for  the  defendants,  on  which  judg- 
ment was  entered.  The  plaintiffs  removed  the  record  into  the  Supreme 
Court,  where  the  judgment  of  the  Superior  Court  was  affirmed.  See 
the  opinion  of  the  court  delivered  by  the  Chief  Justice,  15  Wendell, 
486,  et  seq.  The  plaintiffs  thereupon  sued  out  a  writ  of  error,  remov- 
ing the  record  into  this  court. 

H.  E.  Davies,  for  the  plaintiffs  in  error. 

If.  P.  Edirards  and  G.  Wood.,  for  the  defendants  in  error. 

S.  A.  Foot.,  in  reply. 

By  Senator  Verplanck.^  What  then  is  the  ordinary  undertaking, 
contract,  or  agreement  of  a  bank  with  one  of  its  dealers,  in  the  case  of 
an  ordinary  deposit  of  a  domestic  note  or  bill,  payable  in  the  same 
town  received  for  collection?  It  is  a  contract  made  with  a  corporate 
body  having  onl}'  a  legal  existence,  and  governed  by  directors,  who 
can  act  only  b}'  officers  and  agents  ;  or  if  it  be  with  a  private  banker, 
he  too  is  known  to  carr}'  on  his  business  by  clerks  and  agents.  The 
contract  itself  is  to  perform  certain  duties  necessar}'  for  the  collection 
of  the  paper  and  the  security  of  the  holder.  But  neither  legal  con- 
struction nor  the  common  understanding  of  men  of  business  can 
regard  this  contract  (unless  there  be  some  express  understanding  to 
that  effect)  as  an  appointment  of  the  bank  as  an  attorney  or  personal 
representative  of  the  owner  of  the  paper,  authorized  to  select  other 
agents  for  the  purpose  of  collecting  the  note  and  nothing  more. 
There  is  a  wide  difference  made  as  well  by  positive  law  as  by  the 
reason  of  the  thing  itself,  between  a  contract  or  undertaking  to  do  a 
thing,  and  the  delegation  of  an  agent  or  attorney  to  procure  tlie  doing 

1  The  reporter's  statement  has  been  abbreviated  by  omitting  part  of  the  evidence, 
and  so  much  of  the  charge  as  was  not  made  the  subject  of  comment  in  the  Court  of 
Errors.  —  Ei>. 

2  The  passages  omitted  in  reprinting  tliis  o{)ini()n  are  almost  exclusively  restate- 
ments of  the  facts,  citations  of  authorities,  and  discussions  of  the  question  wliether 
the  notary  was  negligent,  and  of  the  question  whether  any  distinction  is  to  be  based 
upon  the  fact  that  the  notary  was  a  public  officer.  —  Eu. 


938  ALLEN    V.    MEKCHANTS'    BANK.  [CHAP.  VIIL 

the  same  thing,  —  between  a  contract  for  building  a  house  (for  exam- 
ple), and  the  appointment  of  an  overseer  or  superintendent,  authorized 
and  undertaking  to  act  for  the  principal,  in  having  a  house  built.  The 
contractor  is  bound  to  answer  for  au}'  negligence  or  default  in  the  per- 
formance of  his  contract,  although  such  negligence  or  default  be  not 
his  own,  but  that  of  some  sub-contractor,  or  under-workman.  Not  so 
the  mere  representative  agent,  who  discharges  his  whole  duty  if  he  acts 
with  good  faith  and  ordinary-  diligence  in  the  selection  of  his  materials,  the 
forming  his  contracts,  and  the  choice  of  his  workmen.  Now  in  the  case 
of  the  deposit  for  collection  of  a  domestic  note  or  bill  pa^'able  in  the  same 
town,  no  one  can  imagine  that  this,  instead  of  being  a  contract  with  the 
bank  to  use  the  proper  means  for  collecting  the  paper,  is  a  mere  delegation 
of  power  to  act  as  an  attornej'  for  that  purpose.  .  .  . 

Is  there  anything  in  the  mere  fact  of  the  paper  being  payable  iu  another 
city,  and  therefore  requiring  the  aid  of  other  agents,  sufficient  to  take  that 
case  out  of  the  general  rule  ?  1  mean  irrespectively  of  any  agreement  or 
implied  understanding  as  to  the  matter.  The  Chief  Justice,  iu  delivering 
the  opinion  of  the  Supreme  Court,  holds  that  there  is,  and  says:  "A 
note  or  bill  left  at  a  bank,  and  received  for  the  purpose  of  being  sent  to 
some  distant  place  for  collection,  would  seem  to  imply,  upon  a  reason- 
able construction,  no  other  agreement  than  that  it  should  be  forwarded 
with  due  diligence  to  some  competent  agent,  to  do  what  should  be 
necessary  in  the  premises.  The  language  and  acts  of  the  parties  fairly 
import  so  much,  but  nothing  beAond  it.  The  person  leaving  the  note 
is  aware  that  the  bank  cannot  personally  attend  to  the  collection,  and 
that  it  must  therefore  be  sent  to  some  distant  or  foreign  agent."  This 
seems  to  me  to  assume  the  very  question  in  dispute.  In  a  deposit  of 
a  note  for  collection,  payable  in  the  same  place,  the  holder  is  equally 
aware  that  the  bank  cannot  personally  attend  to  the  collection,  and  its 
management  must  be  left  to  some  one  or  more  competent  agents.  But 
he  makes  an  implied  contract  with  the  bank  that  the  proper  and  expe- 
dient means  shall  be  used  to  collect  his  note.  So  he  does  as  to  a 
foreign  debt ;  and  in  each  case  he  alike  presumes  that  proper  agents 
will  be  employed.  In  neither  case  has  he  any  knowledge  of  the  agents, 
or  privity  with  them.  I  can  perceive  no  reason  for  liability  or  exemp- 
tion from  liability-  in  either  case  which  does  not  equally  apply  to  the 
other.  The  bank,  if  its  officers  think  fit,  and  the  dealer  will  consent, 
ma}'  var}'  that  liabilit}'  in  either  case.  It  ma}'  receive  the  paper  only 
for  transmission  to  its  correspondents.  That  would  form  a  new  and 
different  contract,  and  would  limit  the  responsibility  to  good  faith  and 
due  discretion  in  the  choice  of  an  agent.  But  if  this  be  not  done,  or 
unless  there  be  some  implied  understanding  on  the  subject,  I  see  no 
difference  between  the  responsibilit}'  assumed  in  the  undertaking  to 
collect  foreign  bills,  and  that  for  collecting  domestic  paper,  payable  at 
home.  ... 

On  the  question  being  put,  shall  this  judgment  be  reversed?  the 
members  of  the  court  divided  as  follows  :  — 


SECT.  II.]       COMMEKCIAL    BANK    OF   LAKE    EKIE    V.    NORTON.  939 

lu  the  affirmative:  Senators  Fox,  Hawkins,  Hunt,  Huntington, 
Lee,  H.  a.  Livingston,  Mayxard,  Moseley,  Nicholas,  Peck,  Skin- 
ner, Van  Dyck,  Verplanck,  Wager  —  14. 

In  the  negative:  The  Chancellor/  and  Senators  Beakdslet, 
Clark,  Hull,  Hunter,  Johnson,  Jones,  Paige,  Spraker,  Sterling 
—  10. 

Whereupon  the  judgment  of  the  Supreme  Court  was  reversed,  a 
venire  de  novo  directed  to  be  awarded,  and  the  costs  in  this  court  and 
in  the  Supreme  Court  ordered  to  abide  the  event. 

In  this  case,  the  court  adopted  the  following  resolution :  Resolved, 
that  when  a  bank  or  broker,  or  other  money-dealer  receives,  upon  a 
good  consideration,  a  note  or  bill,  for  collection  in  the  place  where 
such  bank,  broker,  or  dealer  carries  on  business,  or  at  a  distant  place, 
tlie  party  receiving  the  same  for  collection  is  liable  for  the  neglect, 
omission,  or  other  misconduct  of  the  bank  or  agent  to  whom  the  note 
or  bill  is  sent  either  in  the  negotiation,  collection  or  paying  over  the 
money,  by  which  the  money  is  lost  or  other  injury  sustained  by  the 
owner  of  the  note  or  bill,  unless  there  be  some  agreement  to  the  con- 
trary, express  or  implied.^ 


COMMERCIAL  BANK  OF   LAKE  ERIE  v.  NORTON 
AND   FOX,    Impleaded. 

Supreme  Court  of  New  York.     1841. 

[1^///,  50L] 

Assumpsit,  tried  at  the  Erie  Circuit,  before  Gridley,  C.  J.,  Aug.  29, 
1840.  The  plaintiffs  sought  to  recover  as  indorsees  of  two  bills  of 
exchange  drawn  b}'  Gillespie,  Joice  &  Co.,  on  E.  Norton  &  Co.,  pava- 
ble  to  Gillespie  &  Woodruff,  at  sixty  days  after  date.  The  firm  of  E. 
Norton  &  Co.  was  composed  of  said  Norton  and  Simeon  Fox,  two  of 
the  defendants,  who  alone  defended  the  suit. 

The  acceptance  on  each  of  the  bills  was  in  this  form  :  "  E.  Norton 
&  Co.  —  Per  A.  G.  Cochrane  ;  "  and  was  in  Cochrane's  handwriting. 

The  bills  were  discounted  on  the  da}'  of  the  date,  bj'  the  plaintiffs 
for  the  drawers,  and  were  afterwards  accepted  for  the  drawers*  accom- 
modation ;  the  defendants  Norton  and  Fox  having  no  funds  of  the 
drawers,  but  the  latter  being  then  largely  indebted  to  them. 

Henry  Norton  testified  on  the  trial  that  he  directed  Cochrane  to 
accept  these  bills,  the  latter  being  the  book-keeper  of  E.  Norton  &  Co. 
As  to  Henry's  own  authority,  he  testified  that  he  was  the  general  agent 
of  E.  Norton  &  Co.,  financial  and  otherwise,  they  not  interfering  in 

1  Chancellor  Walworth  delivered  a  dissenting  opinion.  —  Ed. 

2  Ace. :  Ayrault  r.  Pacific  Bank,  47  N.  Y.  570  (1872).  —Ed. 


940  COMMEKCIAL    BANK   OF   LAKE    ERIE   V.   NORTON.       [CHAP.  VIIL 

the  business,  but  being  engaged  mostly  elsewhere ;  that,  with  their 
knowledge  and  assent,  he  had  been  in  the  habit  of  drawing  drafts, 
making  notes  and  indorsements  for  them  ;  though,  by  the  written  arti- 
cles of  co-partnership  between  E.  Norton  and  Fox,  his  (the  witness') 
power  was  more  limited. 

The  defendants'  counsel  moved  for  a  nonsuit  upon  the  ground  that 
the  acceptances  were  made  without  authority  ;  but  the  circuit  judge 
denied  the  motion,  and  the  defendants'  counsel  excepted.  He  further 
insisted  at  the  trial,  that  the  acceptances  were  without  consideration, 
and  therefore  void.  The  circuit  judge  ruled  the  contrary  ;  whereupon 
the  said  counsel  again  excepted.  Verdict  for  the  plaintiffs.  The  de- 
fendants now  moved  for  a  new  trial  on  a  bill  of  exceptions. 

-El  JVorton,  for  defendants. 

H.  K.  Smith,  for  the  plaintiffs. 

Bi/  the  courts  Cowen,  J.^  But  Henry  Norton,  it  is  said,  did  not 
appear  on  the  proof  to  have  had  any  adequate  power  to  accept.  There 
was,  however,  at  least,  evidence  of  authority  sufficient  to  go  to  the 
jury  ;  and  all  the  judge  did,  on  this  point  being  started,  was  to  refuse 
a  nonsuit.  I  admit  that  the  powers  conferred  on  liim  by  the  defend- 
ants' articles  of  copartnership  did  not  reach  accommodation  accept- 
ances ;  nor  did  it  appear  that  he  had  ever  made  such  an  acceptance 
before.  But  he  said  he  was  the  general  agent  of  the  defendants'  firm, 
having  the  sole  management  of  the  business  ;  and  had,  with  the  de- 
fendants' knowledge,  drawn  drafts  and  made  notes  and  indorsements 
for  them.  True,  he  did  not  mention  the  specific  act  of  acceptance ; 
but  his  general  powers  in  the  business,  and  the  usage  of  putting  their 
names  to  commercial  paper  in  all  other  shapes,  was  the  same  thing, 
and  calculated  to  raise  an  inference  in  the  public  mind  that  he  had 
such  a  power  as  to  this.  It  is  not  necessary,  in  order  to  constitute  a 
general  agent,  that  he  should  have  before  done  an  act  the  same  in 
specie  with  that  in  question.  If  he  have  usuall}'  done  things  of  the 
same  general  character  and  eflTect  with  the  assent  of  his  principals, 
that  is  enough.  A.  holds  himself  out  to  the  world  as  B.'s  partner ; 
this  authorizes  B.  to  do,  in  the  name  of  both,  all  things  which  one 
partner  can  do  in  the  name  of  the  firm  ;  and,  among  others,  to  draw, 
accept,  and  indorse  bills  and  notes.  This  is  on  the  principle  that  one 
partner  is  the  general  agent  of  the  concern.  An}'  other  agent  recog- 
nized as  holding  the  like  power  may  do  the  same  thing.  The  agency 
of  H.  Norton  extended  to  the  whole  business  of  the  defendants.  Nei- 
ther of  the  latter  pretended  to  interfere.  AVhatever  transaction  there- 
fore the  world  might  regard  as  pertaining  to  that  business,  and  clearly 
an  acceptance  is  one,  ought  to  bind  the  firm.  It  is  like  the  case  stated 
by  Malyne,  — a  known  servant  taking  up  moneys  be3'ond  the  seas  upon 
his  master's  account,  and  drawing  a  bill  upon  him.  He  is  liable,  though 
he  refused  to  accept ;  because,  adds  the  writer,  it  is  understood  that 

1  The  opinion  is  shortened  by  omitting  at  the  beginning  and  at  the  end  passages 
not  pertaining  to  Agency.  —  Ed. 


Sf:CT.  II.]       COMMERCIAL    BANK    OF   LAKE    ERIE    V.    NORTON.  941 

the  money  is  obtained  on  his  credit,  nnless  he  have  made  public  decla 
ration  denouncing  his  servant  to  the  brokers  of  exchanges  and  other- 
wise. Mai.  Lex.  Merc.  pt.  3,  eh.  5,  §  6,  p.  264,  ed.  of  1656.  Chitty 
says  the  authority  to  draw,  indorse,  or  accept,  by  procuration,  need  not 
be  special ;  "  but  the  law  may  infer  an  authorit}-  from  the  general  nature 
of  certain  acts  permitted  to  be  done,  and  usual  employ  is  evidence  of 
an  authority."  Chitt.  on  Bills,  35  u,  Am.  ed.  of  1839.  These  are 
very  nearly  the  words  of  Lord  Eldon,  Cli.  in  Davison  v.  Robertson,  3 
Dow's  Pari.  Rep.  218,  229,  whom  Chitty  cites.  Henry  Norton  was  the 
factotum  of  the  firm.  A  more  com[)rehensive  general  agenc\'  can  hardl}'' 
be  conceived. 

But  it  is  said  he  could  not  delegate  the  power  to  accept.  This  is  not 
denied,  nor  did  he  do  so.  The  bills  came  for  acceptance ;  and  having 
as  agent  made  up  his  mind  that  they  should  be  accepted,  he  directed 
Cochrane,  the  book-keeper,  to  do  tlie  mechanical  part,  —  write  the  ac- 
ceptance across  the  bills.  He  was  the  mere  amanuensis.  Had  anything 
like  the  trust  which  is  in  its  nature  personal  to  an  agent,  a  discretion, 
fur  instance,  to  accept  what  bills  he  pleased,  been  confided  to  Cochrane, 
his  act  would  have  been  void.  But  to  question  it  here  would  be  to  deny 
that  the  general  agent  of  a  mercantile  firm  could  retain  a  carpenter  to 
make  a  box,  or  a  cooper  to  make  a  cask.  The  books  go  on  the  ques- 
tion whether  the  delegation  be  of  a  discretion.  Such  is  the  verv  latest 
ease  cited  by  the  defendants'  counsel :  Emerson  /.'.  The  Prov.  Hat 
Manufacturing  Co.,  12  Mass.  Rep.  237,  241,  242  ;  and  the  latest  book. 
2  Kent's  Com.  633,  4th  ed.  Blore  v.  Sutton,  3  Meriv.  237,  is  among  the 
strictest  cases  I  have  seen.  There  the  clerk  of  the  agent  put  his  own 
initials  to  the  memorandum,  by  direction  of  the  agent ;  and  held,  insuflfl- 
cient.  Henderson  r.  Barnewall,  1  Young  &  Jerv.  387,  followed  it. 
Both  were  cases  arising  under  the  statute  of  frauds,  which  requires  that 
the  memorandum  should  be  signed  by  the  principal  or  his  agent ;  and  I 
admit  it  is  ver}'  difficult  to  distinguish  the  manner  of  the  signatures 
there  from  that  now  in  question  b}-  Cochrane.  Everything  there  seems 
to  have  been  mechanical  mereh',  as  here  ;  and  there  may  be  some  doubt, 
I  should  think,  whether  such  cases  can  be  sustained.  At  anj^  rate,  in 
our  attempt  to  apply  them,  we  are  met  with  a  case  as  widel}-  the  other 
way.  E.I' parte  Sutton,  2  Cox,  84.  The  rule  as  there  laid  down  is, 
that  "  an  authority  given  to  A.  to  draw  bills  in  the  name  of  B.  may  be 
exercised  by  the  clerks  of  A."  Such  is  the  marginal  note,  and  it  is  en- 
tirel}'  borne  out  by  the  case  itself.  Peter  Marshall  wrote  to  Lewis  & 
Potter  authorizing  them  "  to  make  use  of  his  name  b}'  procuration  or 
otherwise  to  draw  bills  on  G.  &  J."  The  clerk  of  Lewis  &  Potter 
drew  the  bill,  signing  thus:  "By  procuration  of  Peter  Marshall, 
Robert  Edgecumbe."  The  Lord  Chancellor  put  it  on  the  ground  that 
the  signature  of  the  clerk  would  have  bound  Lewis  &  Potter,  had  he 
signed  their  name  under  the  general  authorit}'  which  he  had.  We  thus 
make  ver}'  little  progress  one  wa}'  or  the  other  on  direct  English  au- 
thority.    Left  to  go  on  the  principle  of  any  other  English  case  I  havo 


942       DORCHESTER,  ETC.  BANK  V.  NEW  ENGLAND  BANK.       [CIIAP.  VIIL 

seen,  and  there  are  man}',  all  we  have  to  say  is,  I  think,  that  the  agent 
shall  not  delegate  his  discretion,  but  may  at  least  do  any  mechanical 
act  b}'  deput}'.  I  do  not  know  that  the  language  of  Lord  P^Uenborough 
in  Mason  v.  Joseph,  1  Smith's  Rep.  406,  has  been  anywhere  directly 
carried  into  an  adjudication.  But  it  sounds  so  much  like  all  the  cases 
professing  to  go  on  principle,  that  I  can  scarcely*  doubt  its  being  law. 
His  Lordship  said,  "  It  is  true  an  attorne}^  appointed  by  deed  cannot 
delegate  his  authority  to  a  third  person.  He  must  exercise  his  own 
judgment  on  the  principal  subject  for  the  purpose  of  which  he  is  ap- 
pointed ;  but  as  to  any  mere  ministerial  act,  it  is  not  necessary  that  he 
should  do  it  in  person,  if  he  direct  it  to  be  done  or  upon  a  full  knowl- 
edge of  it  adopt  it.  Suppose,  for  instance,  he  had  got  the  gout  in  his 
hands,  and  could  not  actually  sign  himself,  he  might  have  authorized 
another  to  sign  for  him."  .  .  .  New  trial  denied.^ 


DORCHESTER  AND   MILTON   BANK  v.   NEW  ENGLAND 

BANK. 

Supreme  Judicial  Court  of  Massachusetts.     1848. 
[1  Cush.  177.] 

This  was  an  action  of  assumpsit  for  the  recovery  of  damages  by  the 
plaintiffs  against  the  defendants,  for  not  accounting  for  the  proceeds 
of  certain  accepted  bills  of  exchange,  payable  at  Washington,  in  the 
District  of  Columbia,  in  six  months  from  their  respective  dates,  which 
had  been  received  by  the  defendants  from  the  plaintiffs  for  collection. 

On  the  trial  in  this  court,  before  Wilde,  J.,  the  following  facts  ap- 
peared in  evidence.  On  the  part  of  the  plaintiffs,  it  was  proved  that 
the  bills  in  question  had  been  discounted  by  them,  and  left,  at  different 
times  during  the  months  of  October,  November,  and  December,  1837, 
for  collection,  with  the  defendants,  who  were  their  general  agents  in 
Boston  ;  that  the  defendants  had  never  paid  over  the  amount  of  the 
bills,  or  returned  them  to  the  plaintiffs  ;  that  the  defendants  always 
charged  the  plaintiffs  a  commission  for  making  collections  out  of  Bos- 
ton ;  and  that  the  plaintiffs,  on  the  21st  February,  1844,  demanded 
of  the  defendants  that  the  pi'oceeds  of  the  bills  should  be  placed  to 
their  credit. 

On  the  part  of  the  defendants,  it  was  proved  that,  from  the  year 
1833  or  1834,  until  the  failure  of  the  Commonwealth  Bank,  the}-  had 
employed  that  bank  to  make  collections  for  them  and  their  customers 
at  Washington,  and  other  places  at  the  South,  where  the  defendants 

1  See  Lord  v.  Hall,  8  C.  B.  f.27  (1849)  ;  Williams  r.  Woods,  16  Md.  220,  248-250 
(1860)  ;  Norwich  University  v.  Denny,  47  Vt.  13  (1874) ;  Weaver  v.  Carnall,  35  Ark. 
198  (1879).  — Ed. 


SKCT.  II.]       DORCHESTEK,  ETC.  BANK  V.  NEW  ENGLAND  BANK.  943 

had  no  agent ;  that  they  placed  the  bills  received  by  them  of  the  plain- 
tiffs ill  the  hands  of  the  Commonwealth  Bank  for  collection,  —  first  in- 
dorsing them  thus,  "  Pay  to  C.  Hood,  cashier,"  which  was  the  form  of 
indorsement  uniforml}' adopted  by  them  in  such  cases;  that  the  Com- 
monwealth Bank  then  was,  and  to  the  time  of  its  failure,  Jan.  11, 
1838,  continued  to  be,  in  good  credit;  that  the  bills  in  question  were 
duh'  transmitted  by  the  Commonwealth  Bank  to  its  correspondent  in 
Washington,  the  Bank  of  the  Metropolis  ;  that  all  the  bills  had  been 
accepted,  but  none  of  them  had  become  due  on  the  11th  of  January, 
1838,  when  the  Commonwealth  Bank  stopped  payment ;  that  on  the 
13th  of  January  the  defendants  took  measures  to  demand  the  bills  of 
the  Bank  of  the  MetropoUs  ;  that  the  latter  refused  to  deliver  the  bills, 
but  afterwards  collected  them,  and  claimed  to  hold  the  proceeds  on 
account  of  a  balance  due  to  them  from  the  Commonwealth  Bank  ;  and 
that  the  defendants  thereupon  commenced  a  suit  for  the  recover}-  of 
the  proceeds  of  the  said  bills  against  the  Bank  of  the  Metropolis,  — 
which  suit  at  the  time  of  the  trial  was  still  pending,  and  the  record  of 
which  is  in  the  case,  and  may  be  referred  to,  subject  to  any  legal  ob- 
jections thereto,  by  the  plaintiffs.^ 

It  was  also  proved,  on  the  part  of  the  defendants,  that,  in  1833  or 
1834,  the  several  banks  emploj'ed  by  the  government  of  the  United 
States,  as  deposit  banks,  entered  upon  a  system  of  mutual  dealings,  for 
the  purpose  of  facilitating  exchanges  and  transfers  of  funds  ;  that  the 
Commonwealth  Bank  was  one  of  these  banks,  and  was  frequently  em- 
ployed by  other  banks,  in  Boston  and  elsewhere,  to  collect  monej-  in 
places  (especialh'  at  the  South  and  "West,  where  the  latter  had  no  cor- 
respondents), and  that  in  all  such  cases  bills  received  for  collection  were 
indorsed  in  the  manner  above  mentioned  ;  and  that  since  that  time  it 
had  been  the  general  practice  of  the  banks  in  Boston,  whenever  any 
one  of  them  received  notes  or  drafts  for  collection  which  were  paj^able 
at  a  place  where  it  had  no  correspondent,  to  pass  over  the  same  for 
collection  to  some  other  bank  in  Boston  which  had  a  correspondent  in 
such  place,  by  a  general  indorsement  exacth-  like  that  made  use  of 
in  indorsing  the  bills  in  question  to  the  Commonwealth  Bank. 

There  was  no  evidence  that  any  loss  had  ever  happened  in  conse- 
quence of  the  failure  of  a  bank  in  which  bills  or  drafts  had  been  thus 
deposited  for  collection,  or  that  the  owner  of  any  such  note  or  draft 
had  in  any  instance  sustained  a  loss  in  consequence  of  a  failure  of  the 
collecting  bank.  It  was  proved  that,  although  it  was  the  general  prac- 
tice of  the  banks  in  Boston  to  receive  bills  and  notes  for  collection 
which  were  payable  in  places  where  they  had  no  correspondents,  j-et 
that  they  sometimes  refused  to  undertake  the  collection  of  such  paper. 

The  cashier  of  the  plaintiffs  testified  that  in  the  course  of  business 
at  their  bank,  within  the  last  eight  or  ten  years,  they  had  discounted 
and  received  a  large  quantity  of  Southern  and  other  drafts,  though  not 

1  See  1  Howard,  234;  6  lb.  212.  — Rep. 


944        DORCHESTER,  ETC.  BANK  V.  NEW  ENGLAND  BANK.       [CHAP.  VIII. 

to  a  great  amount  on  Washington,  all  of  which  were  collected  through 
the  New  England  Bank  ;  that  in  three  or  four  instances,  within  the 
period  mentioned,  protested  drafts  had  been  returned  to  the  plaintiffs 
by  the  New  J^ngland  Bank,  from  which  it  appeared,  that  that  bank  had 
indorsed  bills  and  drafts,  received  by  it  for  collection,  to  other  banks  in 
Boston  in  tlie  same  form  in  which  the  bills  were  indorsed  to  the  Com- 
monwealth Bank  ;  and  that  the  plaintiff  had  never  found  any  fault  with, 
or  protested  against,  the  emploj'ment  b}'  the  defendants  of  other  banks 
in  Boston,  though  the  witness  could  not  sa}'  with  certainty  whether 
anv  such  instances  had  occurred  before  the  bills  in  question  were 
placed  in  the  hands  of  the  defendants. 

The  cashier  of  the  defendants  produced  and  verified  the  protest  of  a 
draft  sent  by  the  plaintiffs  to  the  defendants  for  collection  in  Mobile 
in  Ma}',  1836,  and  a  copy  of  the  defendants'  letter  returning  the  same, 
with  a  protest,  to  tlie  plaintiffs  ;  which  draft  was  indorsed  b\-  the  plain- 
tiffs ■*  and  b}'  the  defendants,  in  the  same  manner  with  the  bills  now  in 
question,  to  the  cashier  of  the  Merchants'  Bank  in  Boston,  to  which  it 
was  sent  for  collection. 

On  these  facts  the  case  was  withdrawn,  by  consent,  from  the  jury, 
and  submitted  for  consideration  to  the  whole  court,  who  are  to  order 
a  nonsuit,  default,  or  new  trial,  as  in  their  judgment  the  case  ma}' 
require. 

i?.  Fletcher,  for  the  plaintiffs. 

S.  Bartlett^  for  the  defendants. 

Wilde,  J.^  This  is  an  action  of  assumpsit;  but  the  foundation  of 
the  plaintiffs'  claim  is  the  alleged  negligence  of  the  defendants  in  not 
collecting  certain  bills  left  with  them  for  collection  by  the  plaintiffs. 

The  defendants  proved  that  they  placed  these  bills  in  the  hands  of 
the  Commonwealth  Bank  for  collection,  the  same  being  payable  in  the 
cit}-  of  Washington,  where  the  defendants  had  no  correspondents. 
This,  the  plaintiffs'  counsel  contend,  the  defendants  had  no  right  to 
do,  on  the  ground  that  an  agent  has  no  right  to  delegate  his  authority 
to  a  sub-agent  without  the  assent  of  his  principal.  This,  no  doubt,  is 
generall}'  true  ;  but  when,  from  the  nature  of  the  agenc}',  a  sub-agent 
or  sub-agents  must  necessaril}'  be  employed,  the  assent  of  the  principal 
is  impUed.  Such  was  the  nature  of  the  agency  in  the  present  case.  It 
could  not  have  been  expected  that  the  defendants  would  employ  one  of 
their  own  officers  to  proceed  to  Washington  to  obtain  payment  of  the 
bills.  The  bills  undoubtedly  were  intended  to  be  transmitted  to  Wash- 
ington for  colleciion  ;  and  if  the  defendants  employed  suitable  sub- 
agents  for  that  purpose,  in  good  faith,  the}'  are  not  liable  for  the  neglect 

1  In  the  argument  for  the  defendants,  and  in  the  opinion  of  the  court,  it  is  stated 
that  the  bills  were  indorsed  by  the  plaintiffs  to  the  defendants  in  the  same  manner 
that  they  were  indorsed  by  the  defendants  to  the  Commonwealth  Bank;  but  the  fact 
does  not  distinctly  appear  from  the  evidence  contained  in  the  statement  of  the  case.  — 
Eep. 

^  The  Chief  Justice  did  not  sit  in  this  case.  — Rbp. 


SECT.  II.]   DORCHESTER,  ETC.  BANK  V.   NEW  ENGLAND  BANK.      945 

or  default  of  the  snb-agents.  This  was  so  decided  in  Fabens  v.  Mer- 
cantile Bank,  23  Pick.  330,  The  Chief  Justice,  in  delivering  the  opinion 
of  the  court,  sa3-s :  "It  is  well  settled  that  when  a  note  is  deposited 
with  a  bank  for  collection,  which  is  payable  at  another  place,  the  whole 
duty  of  the  bank  so  receiving  the  note,  in  the  first  instance,  is  season- 
ably to  transmit  the  same  to  a  suitable  bank,  or  other  agent,  at  the 
place  of  payment.  And  as  a  part  of  the  same  doctrine,  it  is  well  set- 
tled that  if  the  acceptor  of  a  bill,  or  promisor  of  a  note,  has  his  resi- 
dence in  another  place,  it  shall  be  presumed  to  have  been  intended  and 
understood  between  the  depositor  for  collection  and  the  bank  that  it 
was  to  be  transmitted  to  the  place  of  the  residence  of  the  promisor." 
This  decision  of  the  court  on  both  points  is,  we  think,  well  founded  in 
principle,  and  supported  by  a  decided  weight  of  authorit}'.  The  only 
opposing  decision  is  in  the  case  of  Allen  r.  Merchants'  Bank,  which 
was  first  reported  in  15  Wend.  482,  and  which  was  afterwards  removed 
to  the  Court  of  Errors,  where  the  judgment  of  the  court  below  was  re- 
versed by  a  majority  of  the  Court  of  Errors.  This  reversal  is  opposed 
to  a  number  of  decisions  of  great  authority,  and  is  not,  as  we  think, 
well  founded  in  principle.  If  the  bank  in  that  case  acted  in  good  faith, 
in  selecting  a  suitable  sub-agent  where  the  bills  were  payable,  there 
seems  to  be  no  principle  of  justice,  or  public  polic}',  by  which  the  bank 
should  be  made  liable  for  the  neglect  or  misfeasance  of  the  sub-agent. 
And  it  is  admitted  bj*  Mr.  Senator  Verplanck,  who  states  the  grounds 
of  the  reversal  of  the  judgment,  that  the  bank  would  not  have  been 
liable  if  there  had  been  an  understanding  or  agreement,  express  or 
implied,  that  the  bills  were  to  be  transmitted  to  another  bank  for  col- 
lection. Now,  we  think,  in  that  case  as  in  this,  there  was  manifestly 
such  an  understanding.  There  is  another  view  of  that  case,  taken  by 
the  learned  senator,  in  which  we  cannot  concur.  He  makes  no  distinc- 
tion between  the  neglect  of  the  officers  of  the  bank,  where  the  bills 
were  deposited,  and  that  of  the  bank  to  which  they  were  transmitted 
for  collection.  We  think  the  distinction  is  obvious.  We  agree,  how- 
ever, with  the  learned  senator,  that  the  decisive  question  in  such  cases 
is  what  was  the  understanding  of  the  parties  as  to  the  duties  the  col- 
lecting bank  undertook  to  perform.  And  as  to  this,  we  have  no  doubt 
of  the  understanding  of  the  parties  in  the  present  case.  That  was,  we 
think,  that  the  defendants  were  to  transmit  the  bills,  or  to  cause  them 
to  be  transmitted,  to  some  suitable  bank  or  other  agent  in  Washington 
for  collection  ;  and  the  questions  are  whether,  in  employing  the  Com- 
monwealth Bank  to  transmit  the  bills,  the  defendants  acted  in  good 
faith,  and  if  so,  whether  the}'  are  responsible  for  the  failure  of  that 
bank.  That  the  defendants  acted  in  good  faith  we  cannot  doubt.  The 
Commonwealth  Bank  at  the  time  was  in  perfectly  good  credit,  and  had 
great  facilities  for  obtaining  payment  of  bills  and  notes  pa^'able  in  dis- 
tant States.  The  defendants  were  the  plaintiffs'  general  agents,  and 
the}'  had  no  instructions ;  the}'  were,  therefore,  to  exercise  their  best 
judgment  as  to   the  transmission  of  the  bills  and  the  remittance  of 

60 


946        DORCHESTEK,  ETC.  BANK  V.  NEW  ENGLAND  BANK.       [CIIAP.  VIII. 

the  money  when  collected.  And  we  see  no  cause  to  doubt  that  they 
acted  in  good  faith,  and  exercised  a  sound  judgment.  It  was  objected 
that  the  defendants  ought  to  have  made  restricted  indorsements  ;  but 
it  is  a  satisfactory  answer  that  the  defendants  made  their  indorsements 
in  the  same  manner  the  plaintiffs  did.  Considering,  then,  that  the 
defendants  acted  in  good  faith,  and  exercised  a  sound  judgment  in 
employing  the  Commonwealth  Bank,  we  think  there  is  no  principle  of 
law  or  equity  which  can  subject  them  to  any  liability  by  reason  of  the 
subsequent  failure  of  that  bank. 

In  our  opinion,  the  defendants'  responsibility  was  limited  to  good 
faith  and  due  discretion  in  the  choice  of  an  agent  to  transmit  the  bills, 
and  to  procure  a  remittance  of  the  money  when  paid.  This  case  is  not 
distinguishable  from  the  case  of  Fabens  v.  Mercantile  Bank,  and  the 
cases  there  cited. 

We  do  not  think  that  the  proof  of  an}'  usage  is  necessar}-  to  support 
these  decisions  ;  but  in  the  present  case  the  usage  is  well  proved  to 
have  been  uniform,  in  similar  cases,  ever  since  the  j'ear  1833  or  1834, 
three  or  four  ^ears  before  these  bills  were  deposited  in  the  defendant 
bank. 

It  was  also  proved  that  one  bill  had  been  transmitted  in  like  manner 
by  the  defendants  for  the  plaintiffs,  and  returned  to  them  with  protest, 
and  without  objection  by  them.  This  was  in  1836,  more  than  a  year 
before  the  bills  in  this  case  were  deposited.  This  would  be  sufficient 
notice  of  the  usage  or  manner  in  which  the  defendant  transacted  such 
business,  if  an}'  such  notice  were  required.  It  seems,  however,  that 
the  usage  of  a  bank  is  binding  on  all  persons  dealing  with  the  bank, 
whether  the}'  know  of  the  usage  or  not.  Lincoln  and  Kennebeck  Bank 
V.  I*age,  9  Mass.  155  ;  Bank  of  Washington  v.  Triplett,  1  Pet.  25. 
That  is  a  point,  however,  not  necessary  to  be  decided  in  this  case. 

Plaintiffs  nonsuit} 

1  Ace:  East  Haddam  Bank  v.  Sco\il,  12  Conn.  303  (1837);  Guelich  v.  National 
State  Bank,  56  Iowa,  434  (1881) ;  First  National  Bank  f.  Spra.jue,  34  Neb.  318  (1892). 

Contra:  Montgomery  County  Bank  v.  Albany  City  Bank,  7  N.  Y.  459  (1852)  ;  Ex- 
change National  Bank  v.  Third"  National  Bank,  112  U.  S.  276  (1884);  Power  r.  First 
National  Bank,  6  Mont.  251  (1887). 

The  authorities  are  collected  in  the  cases  cited  in  this  note,  and  also  in  Ames'  Cases 
en  Trusts  (2d  ed.),  14,  n.  (1).  — Ed. 


SECT.  II.]        HALI3PTZ0K   V.   GKEAT   NOKTHERN   RAILWAY   CO.  947 


JOHN  HALUPTZOK  v.   GREAT  NORTHERN   RAILWAY   CO. 
Supreme  Court  of  Minnesota.     1893. 

[55  Minn.  446.] 

Appeal  by  defendant,  Great  Northern  Railway  Company,  from  an 
order  of  the  District  Court  of  Wright  County,  Thomas  Canty,  J.,  made 
April  15,  1893,  denying  its  motion  for  a  new  trial. ^ 

W.  E.  Dodge  and  Wtndell  Sc  Pidgeoa,  for  appellants. 

W.  E.  Culkin  and  J.  T.  Alley,  for  respondent. 

Mitchell,  J.  The  plaintiff  brought  this  action  to  recover  for  per- 
sonal injuries  to  his  infant  child,  caused  by  the  negligence  of  the  alleged 
servant  of  the  defendant.     1878  G.  S.  ch.  66,  §  34. 

The  injuries  were  inflicted  by  one  O'Connell,  and  the  only  question 
presented  by  this  appeal  is  whether  O'Connell  was  defendant's  servant. 
The  evidence,  in  which  there  is  no  material  conflict,  is  substantially  as 
follows :  The  defendant  maintained  a  public  depot  and  freight  and 
passenger  station  at  the  village  of  Waverl}-.  The  premises  were 
owned  and  controlled  by  the  defendant,  but  the  Great  Northern  Ex- 
press Coinpan}'  and  the  Western  Union  Telegraph  Company  had  their 
oflfices  in  the  same  building,  one  Westinghouse  being  the  common  agent 
for  all  three  companies.  Westinghouse  had  exclusive  charge  of  all  of 
defendant's  business  at  the  station.  He  testified  that  he  had  no  au- 
thority to  employ  any  assistants,  such  authority  being  exclusiveh'^ 
vested  in  the  general  oflScers  of  the  compan}- ;  and,  as  respects  express 
authority-,  this  testimony  is  not  contradicted.  For  a  year  or  more 
before  the  injur}'  complained  of,  Westinghouse  had  permitted  a  young 
man  named  Foutch  to  use  and  practise  on  the  instruments  in  the  office, 
for  the  purpose  of  learning  telegraph}- ;  and  during  that  time  Foutch 
had  been  in  the  habit,  as  occasion  required,  of  assisting  Westinghouse 
in  the  performance  of  his  railwa}'  duties,  such  as  selling  tickets,  hand- 
ling freight,  putting  out  switch  lights,  etc.  He  had  no  contract  with 
the  railwa}'  company,  and  received  no  wages;  the  work  he  did  evi- 
dently being  in  return  for  the  privilege  of  the  office,  and  the  use  of  the 
instruments,  in  learning  telegraphy.  There  is  no  evidence  that  the 
general  officers  of  the  defendant  knew  of  or  assented  to  Foutch's  per- 
forming this  work,  except  the  length  of  time  it  had  continued,  and  the 
absence  of  any  testimony  that  the}'  ever  objected.  About  ten  days 
before  the  accident,  Westinghouse,  with  the  permission  of  the  Western 
Union  Telegraph  Company,  gave  O'Connell  the  privilege  of  the  office, 
and  the  use  of  the  instruments,  for  the  purpose  of  learning  telegraphy, 
evidently  under  substantially  the  same  arrangement  by  which  he  had 
previously  given  Foutch  similar  privileges.  O'Connell  had  no  contract 
with  the  defendant,  and  received  no  wages.     The  time  between  his 

1  The  reporter's  statemoiit  has  been  omitted.  —  Ed. 


948  HALUl'TZOK   V.    GREAT    NORTHERN    RAILWAY   CO.       [CHAP.  VIII. 

coming  into  tlie  office  and  the  date  of  the  accident  was  so  brief  that 
the  evidence  is  very  meagre  as  to  his  doing  raihoad  worii  about  the 
station  during  that  time,  but  there  was  evidence  tending  to  show  that 
he  had  on  several  occasions,  with  the  knowledge  and  consent  of  West- 
inghouse,  handled  freight.  On  the  day  in  question,  he  went  to  work, 
with  a  truck,  to  move  some  goods  from  the  station  platform  into  a 
freight-room.  Foutch  assisted  him  b}'  piling  up  the  goods  in  the  room 
while  O'Connell  carried  them  in.  While  thus  handling  the  truck, 
O'Connell  ran  it  against  plaintiff's  child,  who  was  walking  around  the 
depot,  and  inflicted  the  injury  complained  of.  There  is  no  evidence 
that  at  or  prior  to  the  accident  the  general  officers  of  the  defendant 
knew  that  O'Connell  was  employed  about  the  station.  But  both 
Foutch  and  O'Connell,  after  the  accident,  continued  at  the  depot,  prac- 
tising telegraph}",  and  assisting  Westinghouse,  as  before,  in  selling 
tickets,  handling  freight,  etc.,  and  were  still  doing  so  at  the  date  of  the 
trial,  which  was  live  months  after  the  accident,  and  over  four  months 
after  the  commencement  of  this  action  ;  and,  while  there  is  no  direct 
evidence  that  this  was  with  the  knowledge  of  the  general  officers  of 
the  defendant,  there  is  no  evidence  that  they  did  not  know  of  it,  and 
none  that  they  ever  objected  to  it.  Such  we  believe  to  be  a  fair  and 
full  statement  of  the  effect  of  the  evidence. 

Under  the  doctrine  of  respondeat  superior,  a  master,  however  careful 
in  the  selection  of  his  servants,  is  responsible  to  strangers  for  their 
negligence  committed  in  the  course  of  their  employment.  The  doc- 
trine is  at  best  somewhat  severe,  and,  if  a  man  is  to  be  held  liable  for 
the  acts  of  his  servants,  he  certainl}'  should  have  the  exclusive  right  to 
determine  who  they  shall  be.  Hence,  we  think,  in  ever}'  well-con- 
sidered case  where  a  person  has  been  held  liable,  under  the  doctrine 
referred  to,  for  the  negligence  of  another,  that  other  was  engaged  in 
his  service  either  b}'  the  defendant  personall}',  or  by  others  by  his  au- 
thorit}',  express  or  implied.  There  is  a  class  of  cases,  of  which  Bush 
V.  Steinman,  1  Bos.  &  P.  404  (often  doubted  and  criticised),  is  an 
example,  which  seem  to  hold  that  a  person  may  be  liable  for  the  neg- 
ligence of  another,  not  his  servant.  But  these  were  generall}'  cases 
where  the  injur}'  was  done  by  a  contractor,  sub-contractor,  or  their  ser- 
vants, upon  the  real  estate  of  the  defendant,  of  which  he  was  in  pos- 
session and  control ;  and  they  seem  to  proceed  upon  the  theory  that, 
where  a  man  is  in  possession  of  fixed  property,  he  must  take  care  that 
it  is  so  used  and  managed  by  those  whom  he  brings  upon  the  premises 
as  not  to  be  dangerous  to  others.  In  that  view,  he  is  held  liable,  not 
for  the  negligence  of  another,  but  for  his  own  personal  negligence  in 
not  preventing  or  abating  a  nuisance  on  his  own  premises.  See 
Laugher  v.  Pointer,  5  Barn.  &  C.  547.  There  will  also  be  found  in 
some  text-books  statements  to  the  effect  that  where  a  servant  is  em- 
plo}ed  to  do  a  particular  piece  of  work,  and  he  employs  another  person 
to  assist  him,  the  master  is  liable  for  the  acts  of  the  person  so  em- 
ployed, as  much  as  for  the  acts  of  the  servant  himself.     Thus  generally 


SECT.  II.]        HALUPTZOK    V.    GREAT   NORTHERN    RAILWAY   CO.  949 

stated,  without  qualification,  tlie  proposition  is  misleading,  as  well  as 
inaccurate. 

The  cases  most  generall}-  cited  in  support  of  it  are  Booth  v.  Mister, 
7  Car.  &  P.  66,  and  Althorf  r.  Wolfe,  22  N.  Y.  355.  In  Booth  v. 
Mister,  the  defendant's  servant,  whose  duty  it  was  to  drive  his  master's 
cart,  was  riding  in  the  cart,  but  had  given  the  reins  to  another  person, 
who  was  riding  with  him,  but  was  not  in  the  master's  employment,  and 
through  the  negligent  management  of  this  other  person  the  plaintiff 
was  injured.  The  defendant  was  held  liable,  not  for  the  mere  negli- 
gence of  such  other  person,  but  for  the  negligence  of  the  servant  him- 
self, who  was  riding  in  the  cart,  and  either  actively  or  passively 
controlling  and  directing  the  driving,  as  much  as  if  he  had  held  the 
reins  in  his  own  hands. 

In  Althorf  v.  Wolfe,  a  servant,  having  been  directed  to  remove  snow 
from  the  roof  of  his  master's  house,  secured  the  services  of  a  friend  to 
assist  him ;  and  while  the  two  were  engaged  together,  in  throwing  the 
snow  from  the  roof  into  the  street,  a  passer-by  was  struck  and  killed. 
It  was  held  that  it  was  immaterial  which  of  the  two  threw  the  ice  or 
snow  which  caused  the  injur}- ;  that  in  either  case  the  master  was  liable. 
The  case  is  a  very  unsatisfactor}-  one,  and  it  is  very  difficult  to  ascer- 
tain the  precise  ground  upon  which  it  was  decided.  Wright,  J., 
seems  to  put  it  on  one  or  all  of  three  grounds:  (1)  That  the  servant 
had  implied  authority  to  procure  assistance ;  (2)  That  defendant's 
family,  who  were  left  in  charge  of  the  house,  ratified  the  act  of  the  ser- 
vant;  and  (3)  upon  the  same  ground  upon  which  Booth  v.  Mister  was 
decided.  On  the  other  hand,  Denio,  J.,  seems  to  place  his  opinion 
upon  the  ground  upon  which  we  have  suggested  that  Bush  i\  Steinman 
proceeds.  It  is  also  to  be  observed  that  two  of  the  justices  dissented. 
But  neither  of  these  cases,  if  righth-  understood,  is  in  conflict  with  the 
proposition  with  which  we  started  out,  —  that  a  master,  as  such,  can 
be  held  liable  for  the  negligence  only  of  those  who  are  employed  in  his 
work  by  his  authority  ;  and  hence,  if  a  servant  who  is  emplo^^ed  to  per- 
form a  certain  work  procures  another  person  to  assist  him,  the  master 
is  liable  for  the  sole  negligence  of  the  latter,  only  when  the  servant 
had  authority  to  employ-  such  assistant.  Such  authority  may,  however, 
be  implied  as  well  as  express,  and  subsequent  ratification  is  equivalent 
to  original  authorit}- ;  and.  where  the  servant  has  authorit}'  to  employ 
assistants,  such  assistants,  of  course,  become  the  immediate  servants 
of  the  master,  the  same  as  if  employed  by  him  personally.  Such  au- 
thority may  be  implied  from  the  nature  of  the  work  to  be  performed, 
and  also  from  the  general  course  of  conducting  the  business  of  the 
master  by  the  servant  for  so  long  a  time  that  knowledge  and  consent 
on  part  of  the  master  ma}'  be  inferred.  It  is  not  necessary  that  a 
formal  or  express  employment  on  behalf  of  the  master  should  exist,  or 
that  compensation  should  be  paid  by  or  expected  from  him.  It  is 
enough  to  render  the  master  liable  if  the  person  causing  the  injurv  was 
In  fact  rendering  service  for  him  by  his  consent,  express  or  implied. 


950  HALUPTZOK   V.    GREAT    NORTHERN    RAILWAY   CO.       [CHAP.  VIII. 

Under  this  view  of  the  law,  the  evidence  made  a  case  for  the  jury  to 
deterniine  whether  Westinghousc  had  implied  authorit}'  from  the  de- 
fendant to  employ  O'Connell  as  an  assistant,  or,  to  state  the  question 
ditferently,  whether  O'Connell  was  rendering  these  services  for  the 
defendant  by  its  consent. 

If  the  evidence  were  limited  to  the  employment  of  O'Connell  alone, 
and  to  what  occurred  during  the  ten  days  preceding  the  accident,  it 
would  probably  be  insufficient  to  support  a  verdict  in  favor  of  the 
plaintiff.  But  it  is  an  undisputed  fact  that  Westinghouse  had  for  over 
a  year  before  this  been  employing  Foutch  as  an  assistant  under  a  simi- 
lar arrangement,  without,  so  far  as  appears,  any  objection  on  part 
of  the  defendant,  although  the  length  of  time  was  such  that  its  knowl- 
edge of  the  fact  ma}'  be  fairly  inferred.  It  is  true  that  implied  au- 
thority to  employ  Foutch  as  assistant  would  not  necessarily  include 
authority  to  employ  O'Connell,  but  the  fact  of  Foutch's  long-continued 
employment  has  an  important  bearing  upon  the  question  of  Westing- 
house's  implied  authorit}',  as  indicated  by  the  manner  of  conducting 
the  business ;  and,  as  bearing  upon  this  same  question  of  implied  au- 
thority, the  fact  is  significant  that  after  the  accident  both  Foutch  and 
O'Connell  continued,  without  objection,  to  perform  these  services  for 
defendant,  as  assistants  to  Westinghouse,  up  to  the  date  of  the  trial. 
Additional  force  is  added  to  all  this,  when  considered  in  connection 
with  the  nature  of  the  duties  of  a  station  agent  at  a  place  like  this, 
which  are  of  such  multifarious  character  as  to  render  the  employment 
of  an  occasional  assistant  not  only  convenient,  but  almost  necessary. 
The  facts  that  the  consideration  for  the  services  of  these  assistants 
moved  from  Westinghouse,  rather  than  defendant,  and  that  their  aid 
was  for  the  accommodation  or  convenience  of  Westinghouse,  are  not 
controlling. 

There  is  nothing  in  the  point  that  defendant  is  not  liable  because 
the  freight  which  O'Connell  was  moving  had  been  delivered  to  the  con- 
signee, who  had  promised  to  take  care  of  it  where  it  lay,  on  the  station 
platform. 

O'Connell's  act  was  in  the  line  of  his  employment,  and  was  being 
done  in  furtherance  of  defendant's  business.  The  liabilit}'  of  the  de- 
fendant to  third  parties  cannot  be  made  to  depend  upon  the  question 
whether,  as  between  it  and  the  owner  of  the  goods,  it  owed  the  latter 
the  continued  duty  of  taking  care  of  them. 

Order  affirmed. 


SECT.  II.]  GWILLIAM   V.    TWIST.  951 

GWILLIAM  V.  TWIST  and  another. 

Court  of  Appeal.     1895. 

[  [1895]  2  Q.  B.  84.] 

Appeal  from  the  judgment  of  a  Divisional  Court  (Lawrance  and 
Wright,  JJ.)  on  an  appeal  from  the  Count}-  Court  of  Birmingham. 
[1895]  1  Q.  B.  557. 

The  action  was  for  damages  for  personal  injuries. 

The  defendants  were  the  proprietors  of  an  omnibus  which  was  being 
driven  througli  the  streets  of  Birmingham  b}-  a  driver  in  the  employ- 
ment of  the  defendants  named  Harrison.  A  police  inspector,  being  of 
opinion  that  Harrison  was  not  sober  and  could  not  drive  the  omnibus 
with  safety,  ordered  hhn  to  discontinue  driving  it  and  get  down,  which 
he  did.  The  omnibus  was  at  that  time  about  a  quarter  of  a  mile  from 
the  defendants'  yard.  A  man  named  Veares,  who  had  formerly  been 
a  conductor  in  the  defendants'  employment,  and  who  happened  to  be 
standing  by,  volunteered  to  drive,  and  did  drive  the  omnibus  home  to 
the  defendants'  yard.  While  on  the  way  there  he  drove  over  and  in- 
jured the  plaintiff,  who  was  a  passenger  in  the  street.  There  was  a 
conflict  of  evidence  as  to  whether  the  police  inspector  ordered  Veares 
to  drive  the  omnibus  home,  or  Harrison  employed  him  to  do  so.  The 
county  court  judge  found  as  follows:  That  the  accident  was  caused  by 
the  negligent  or  unskilful  driving  of  Veares  ;  that  the  police  inspector 
did  not  order  Veares  to  drive  the  omnibus  home,  but  the  driver  and 
conductor  acquiesced  in  his  doing  so;  and  that,  as  to  the  driver  being 
the  worse  for  drink,  it  was  not  necessar}-  to  give  an  opinion,  but  the 
inspector  honestly  thought  that  he  was  not  in  a  fit  state  to  drive,  and 
acted  properl}'  in  telling  him  to  discontinue  driving.  The  county 
court  judge  on  these  findings  gave  judgment  for  the  plaintiff  for  £30 
damages.  He  said,  in  giving  judgment,  that  the  driver  Harrison  and 
the  conductor,  having  acquiesced  in  Veares'  driving,  must  be  taken  to 
have  authorized  his  driving  on  behalf  of  the  defendants  ;  that,  as  it 
was  clearly  necessary  that  some  one  should  drive  the  omnibus  back  to 
the  yard,  it  was,  under  the  circumstances,  within  the  scope  of  their 
authority  to  autiiorize  Veares  to  drive  ;  and  that  the  defendants  were 
therefore  liable  for  Veares'  negligence. 

The  defendants  appealed  against  the  judgment  of  the  county  court 
judge. 

The  Divisional  Court  dismissed  their  appeal. 

Edward  Pollock^  for  the  defendants. 

JBoydell  Houghton.,  for  the  plaintiff. 

Lord  Esher,  M.  R.  In  this  case  a  question  of  great  importance  ha8 
been  raised,  which,  however,  it  is  not  necessary  for  us  to  decide ; 
namely,  whether,  if  there  were  a  necessity  for  a  servant  to  delegate 
his  duty  to  another  person,  that  delegation  would  make  that  other 
person  a  servant  of  the  master  so  as  to  render  the  latter  responsible 


952  GWILLIAM    V.    TWIST.  [CHAP.  VIII. 

for  his  acts.  It  seems  to  me  perfecth'  clear  that  a  servant  employed 
for  a  particular  purpose  can  have  no  authority  to  delegate  the  perform- 
ance of  his  duty  to  another  person,  unless  there  is  a  necessity  for  so 
doing.  The  question  therefore  arises,  whether  there  was  in  this  case 
any  evidence  upon  which  the  count}-  court  judge  could  reasonabl}'  find 
that  there  was  a  necessity  to  delegate  the  duty  of  driving  the  omnibus 
to  Veares.  I  doubt  whether  the  learned  countv  court  judge  has  in 
truth  found  that  there  was  any  such  necessity  ;  for  he  appears  to  have 
made  certain  specific  findings  of  fact,  among  which  there  is  no  finding 
that  there  was  such  a  necessity,  and  then  in  his  judgment  he  subse- 
quently seems  to  have  treated  the  case  upon  those  findings  of  fact  as 
being  one  of  necessit}' :  but  I  will  assume  that  he  intended  to  find  that 
there  was  in  fact  such  a  necessity.  The  question  is  whether  there  was 
evidence  to  support  that  finding.  Was  there  any  necessity  for  the 
delegation  of  the  duty  of  driving  the  omnibus  to  Veares  without  con- 
sulting the  employers?  If  there  is  an  opportunit}'  to  consult  the  mas- 
ter on  the  subject,  I  do  not  see  how  it  can  be  necessary'  that  the 
servant  should  act  on  his  own  view.  Here  there  was  an  omnibus  in 
the  street,  and  the  driver  became  incapacitated  for  driving  it  b}-  reason 
of  an  order  given  by  a  policeman  which  he  was  bound  to  obe}'.  It  was 
only  a  quarter  of  a  mile  from  the  yard  vvliere  the  owners  of  the  omni- 
bus carry  on  business.  I  cannot  see  anything  to  show  that  the  omnibus 
might  not  have  safely  remained  where  it  was  while  the  conductor  or 
&ome  other  messenger  went  to  the  owners'  yard  to  inform  them  what 
had  happened,  and  to  ask  what  was  to  be  done.  If  that  were  so,  I 
think  the  judge  would  be  bound  to  direct  a  jur}-,  if  there  were  one, 
or,  if  trying  the  case  without  a  jur}',  would  be  bound  to  find  himself, 
that  it  had  not  been  made  out  that  there  was  any  necessity  for  the 
servant  to  delegate  his  dutj'  to  another  person  without  communicating 
with  his  master.  There  being  no  evidence  on  which  the  judge  was 
entitled  to  say  that  such  a  necessity  had  arisen,  he  was  bound,  I  think, 
to  hold  that  the  servant  had  no  authorit}'  to  delegate  his  dut}-  to 
another  person,  and  that,  consequently,  the  defendants  could  not  be 
made  responsible  for  the  negligence  of  that  other  person.  For  these 
reasons  I  think  the  appeal  must  be  allowed. 

I  am  ver}'  much  inclined  to  agree  with  the  view  taken  by  Eyre,  C.  J., 
in  the  case  of  Nicholson  v.  Chapman,  2  H.  Bl.  254,  and  by  Parke,  B., 
in  the  case  of  Hawtayne  v.  Bourne,  7  M.  &  W.  595,  to  the  effect  that 
this  doctrine  of  authority'  by  reason  of  necessity  is  confined  to  certain 
well-known  exceptional  cases,  such  as  those  of  the  master  of  a  ship  or 
the  acceptor  of  a  bill  of  exchange  for  the  honor  of  the  drawer.^ 

Appeal  allowed.^ 

1  Concurring  opinions  by  A.  L.  Smith  and  Rigby,  L.  JJ.,  have  been  omitted. —  Ed. 

2  Compare  Georgia  Pacific  Railroad  v.  Propst,  85  Aia.  203  (1887).  —  Ed. 


SECT.  1.1  BROOKSHIKE  V.   BKOOKSHIRE.  953 


CHAPTER   IX. 
TERMINATION  OF   AGENCY. 


SECTION   I. 

Modes  of  Termination. 
(A)   Revocation. 

ANON.  V.  HARRISON. 

Nisi  Prius.     1698. 

[12  Mod.  346.] 

A  SERVANT  had  power  to  draw  bills  of  exchange  in  his  master's 
name,  and  afterwards  is  turned  out  of  the  service. 

Holt,  C.  J.  If  he  draw  a  bill  in  so  little  time  after  that  the  world 
cannot  take  notice  of  his  being  out  of  service,  or  if  he  were  a  long 
time  out  of  his  service,  but  that  kept  so  secret  that  the  world  cannot 
take  notice  of  it,  the  bill  in  those  cases  shall  bind  the  master.* 


BROOKSHIRE   v.   BROOKSHIRE. 
Supreme  Court  of  North  Carolina.     1847. 

[8  Iredell's  Law,  74.] 

This  was  an  action  of  assumpsit  brought  in  the  Superior  Court  of 
Randolph. 

The  following  was  the  case :  the  plaintiff  was  emploj-ed  by  the  de- 
fendant and  others,  as  an  agent,  to  go  to  Alabama,  and  settle  the  estate 
of  their  brother,  and  receive  from  the  executor  his  share  thereof  and 

1  Ace:  Trueman  v.  Loder,  11  Ad.  &  E.  589  (1840)  ;  Tier  v.  Lampson,  35  Yt.  179 
(1862)  ;  Fellows  v.  Hartford  &  New  York  Steamboat  Co.,  38  Coun.  197  (1871) ;  Clatliu 
V.  Lanheim,  66  N.  Y.  301  (1876). 

Compare  Watts  v.  Kavanagh,  35  Yt.  34,  38  (1861) ;  Pole  v.  Leask,  33  L  J.  n.  s.  Ch 
155,  162  (II.  L.  1863). 

And  see  Capen  i'.  Pacific  Mutual  Ins.  Co.,  1  Dutcher,  67  (1855).  —  Ed. 


954  BROOKSHIRE   V.    BROOKSHIRE.  [CHAl*.  IX. 

bring  it  to  this  State.  Tlie  appointment  of  tlie  plaintiff  was  by  deed. 
He  made  one  trip,  and  after  returning  home  he  made  a  second,  when 
he  was  shown  b}'  the  executor  a  letter  from  the  defendant,  revoking 
the  power  before  given,  so  far  as  he  was  concerned.  The  action  was 
brought  to  recover  the  defendant's  aliquot  portion  of  the  expenses  of 
both  trips,  and  also  the  commissions  of  ten  per  cent  on  the  distributive 
share  of  tlie  defendant.  It  was  admitted  b}'  the  defendant  that  he  was 
bound  for  one-sixth  part  of  the  expenses  of  tlie  first  trip,  but  insisted 
he  was  bound  for  no  part  of  the  second  ;  as  upon  the  return  of  the 
plaintiff  he  had  revoked  the  power  of  attorney  by  parol.  There  was 
contradictory  evidence  of  the  parol  revocation.  On  the  part  of  the 
plaintiff,  it  was  contended  that,  the  power  under  which  he  acted  being 
an  instrument  under  seal,  it  could  not  be  revoked,  but  by  an  instrument 
of  equal  dignity,  and  that,  therefore,  whether  the  revocation  was 
attempted  bj*  parol  after  the  termination  of  the  first  trip,  or  by  the  let- 
ter upon  liis  return  to  Alabama,  it  was  equally  inoperative,  and  he  was 
entitled  to  recover  the  defendant's  share  of  the  expenses  of  both  trips. 

His  Honor  charged  the  jury  that  if  the}-  believed  there  was  a  parol 
revocation  of  the  power  of  attorne}'  before  the  plaintiff  started  upon 
the  second  trip  to  Alabama,  the}'  should  allow  damages  to  the  amount 
of  one-sixth  of  the  expenses  of  the  first  trip  ;  and  if  they  should  find 
that  there  was  no  revocation  before  the  plaintiff  left  on  the  second  trip, 
but  that  the  power  was  revoked  by  letter  after  he  reached  Alabama,  in 
that  case  they  should  allow  damages  for  the  expenses  of  the  first  trip 
and  also  for  his  expenses  in  going  to  Alabama  the  second  time,  but  not 
his  expenses  home. 

The  jury  returned  a  verdict  of  $43.16,  being  the  defendant's  share  of 
the  expenses  of  the  first  trip,  and  his  share  of  his  expenses  out,  the 
second.^  .  .   . 

The  plaintiff  then  moved  for  a  new  trial  for  misdirection  of  the  judge 
in  charging  the  jur}'  that  the  power  of  attorney  could  be  revoked  by 
parol  or  by  letter.  This  motion  was  also  overruled,  and  botli  parties 
appealed. 

J.  H.  Haughton^  for  the  plaintiff. 

Iredell^  for  the  defendant. 

Nash,  J.  It  is  not  denied  b}'  the  plaintiff  that,  in  this  case,  it  was 
within  the  power  of  the  defendant  to  put  an  end  to  his  agency,  b}'  re- 
voking his  authority.  Indeed,  this  is  a  doctrine  so  consonant  with 
justice  and  common  sense  that  it  requires  no  reasoning  to  prove  it. 
But  he  contends  that  it  is  a  maxim  of  the  common  law,  that  every 
instrument  must  be  revoked  by  one  of  equal  dignity.  It  is  true  an 
instrument  under  seal  cannot  be  released  or  discharged  b}'  an  instru- 
ment not  under  seal  or  by  parol ;  but  we  do  not  consider  the  rule  as 
applicable  to  the  revocation  of  powers  of  attorney,  especially  to  such 
an  one  as  we  are  now  considering.     The  authority  of  an  agent  is  con- 

^  From  the  statement  and  the  opinion  have  been  omitted  passages  dealing  with 
certain  motions  not  bearing  on  the  question  as  to  Agency.  — Ed. 


SECT.  I.]  ROBERTSON   V.    CLOUD.  955 

ferred  at  the  mere  will  of  bis  priucipal  and  is  to  be  executed  for  his 
benefit ;  the  principal,  therefore,  has  the  right  to  put  an  end  to  the 
agency  whenever  he  pleases,  and  the  agent  has  no  right  to  insist  upon 
acting,  when  the  confidence  at  first  reposed  in  him  is  withdrawn.  In 
this  case,  it  was  not  necessary  to  enable  the  plaintiff  to  execute  his 
agency,  that  his  power  should  be  under  seal ;  one  by  parol,  or  by  writ- 
ing of  any  kind,  would  have  been  sufficient ;  it  certainly  cannot  require 
more  form  to  revoke  the  power  than  to  create  it.  Mr.  Story,  in  his 
treatise  on  Agency,  page  GOG,  lays  it  down  that  the  revocation  of  a 
power  may  be,  by  a  direct  and  formal  declaration  publicly  made  known, 
or  by  an  informal  writing,  or  by  parol ;  or  it  may  be  implied  from  cir- 
cumstances, and  he  nowhere  intimates,  nor  do  any  of  the  authorities 
we  have  looked  into,  that  when  the  power  is  created  by  deed,  it  must 
be  revoked  bj'  deed.  And,  as  was  before  remarked,  the  nature  of  the 
connection  between  the  principal  and  the  agent  seems  to  be  at  war  with 
such  a  principle.  It  is  stated  by  Mr.  Story,  in  the  same  page,  that  an 
agency  may  be  revoked  by  implication,  and  all  the  text-writers  lay 
down  the  same  doctrine.  Thus,  if  another  agent  is  appointed  to  exe- 
cute powers,  previously  intrusted  to  some  other  person,  it  is  a  revoca- 
tion, in  general,  of  the  power  of  the  latter.  For  this  proposition,  Mr. 
Story  cites  Copeland  v.  The  Mercantile  Insurance  Companj-,  6  Pick. 
198.  In  that  case,  it  was  decided  that  a  power,  given  to  one  Pedrick 
to  sell  the  interest  of  his  principal  in  a  vessel,  was  revoked  by  a  sub- 
sequent letter  of  instruction  to  him  and  the  master  to  sell.  As  then, 
an  agent  may  be  appointed  by  parol,  and  as  the  appointment  of  a  sub- 
sequent agent  supersedes  and  revokes  the  powers  previously  granted 
to  another,  it  follows,  that  the  power  of  the  latter,  though  created  by 
deed,  ma^-  be  revoked  by  the  principal,  b}'  parol.  But  the  case  in 
Pickering  goes  further.  Tlie  case  does  not  state,  in  so  many  words, 
that  the  power  granted  to  Pedrick  was  under  seal,  but  the  facts  set 
forth  in  the  case  show  that  was  the  fact ;  and,  if  so,  is  a  direct  author- 
ity in  this  case.  This  is  the  onh-  point  raised,  in  the  plaintiff's  bill  of 
exceptions,  as  to  the  judge's  charge.  .  .  . 

Per  Curiam.     Judgment  affirmed  on  each  appeal,  and  each  appel- 
lant must  pay  the  costs  of  his  appeal. 


ROBERTSON  v.    CLOUD. 
Supreme  Court  of  Mississippi.     1872. 

[47  Miss.  208.] 

Error  to  the  Circuit  Court  of  Coahoma  County,  Shackleford,  J. 
Johnston  &  Johnston^  for  plaintiff  in  error. 
JSucJc  i&  Clrfr/c,  for  defendant  in  error. 


956  ROBERTSON    V.    CLOUD.  [CHAP,  IX. 

SiMRALL,  J.  Cloud,  the  defendant  in  error,  was  constituted  an  agent 
by  Robertson  to  sell  a  plantation  in  Coahoma  County,  on  certain  terms 
as  to  price  and  payment.  Cloud,  by  active  exertions,  through  corre- 
spondence and  personal  solicitation,  found  a  purchaser  who  was  willing 
to  buy  the  property  on  the  terms  he  was  authorized  to  accept.  If  he 
should  effect  a  sale,  Robertson  agreed  to  compensate  him  "•liberally." 
The  case  in  the  Circuit  Court  was  submitted  to  the  judge  on  the  law 
and  facts.  Without  a  separate  finding  as  to  the  facts,  a  judgment  was 
rendered  in  favor  of  Cloud  for  $350,  which  was  $150  less  than  he 
claimed.  The  testimony  was  embodied  in  a  bill  of  exceptions  to  the 
decision  of  the  court  denying  a  motion  for  a  new  trial. 

The  proposition  made  for  Robertson  in  this  court  is,  that  compensa- 
tion to  Cloud  was  dependent  upon  a  sale  of  the  land,  and  inasmuch  as 
Robertson  had  declined  to  sell  for  the  $10,000,  therefore  there  has 
been  no  breach  of  his  contract  with  Cloud. 

The  principal  has  a  right  to  control  the  action  of  his  agent  by  in- 
struction, or  he  maj-,  at  will,  dissolve  the  relation  altogether.  But 
it  is  claimed  for  Cloud,  that  whilst  his  authority  to  negotiate  a  sale  for 
$10,000  was  operative.  Carter,  with  whom  he  had  been  in  treaty  for 
some  time,  acceded  to  the  terms,  and  agreed  to  bu}'.  And  if  Robert- 
son, the  principal,  then  interfered  and  declined  to  consummate  the  sale, 
the  fault  was  not  with  the  agent.  The  rule  is,  that  if  complete  per- 
formance of  a  contract  is  prevented  by  one  party  thereto,  the  other 
who  had  complied,  or  was  able  and  willing  to  compl}-,  shall  be  com- 
pensated in  damages  to  the  extent  of  making  him  whole.  The  doctrine 
on  this  subject  is  stated  and  examined  in  Friedlander  v.  Pugh,  Slocumb, 
&  Co.,  43  Miss. ;  and  Vicksburg  &  Meridian  R.  R.  Co.  v.  Ragsdale 
(MS.  opinion). 

Cloud,  in  his  evidence,  stated  that  Carter  had  agreed  to  buy,  before 
he  was  notified  by  Robertson  not  to  sell  for  the  $10,000.  If  such  was 
the  fact,  and  the  judge  so  accepted  it  as  proved,  and  anything  remained 
to  be  done  by  Cloud,  then  the  case  would  be  governed  in  principle 
by  Friedlander  ik  Pugh,  Slocumb,  &  Co.,  and  Cloud  should  secure  com- 
pensation for  partial  performance,  according  to  the  terms  of  contract, 
and  such  damages  as  would  legitimate!}'  result  from  the  refusal  of  the 
plaintiff  to  permit  a  full  performance. 

The  evidence  shows  that  labor,  time,  and  money  were  expended  by 
Cloud  about  this  business.  In  one  view  of  the  testimon}-,  all  was  done 
by  liim  that  well  could  be  done. 

The  extent  of  the  authority  given  to  Cloud,  and  the  service  to  be 
performed  by  him,  was  to  negotiate  a  sale,  — find  a  purchaser  who  would 
comply  with  the  terms  of  sale.  That  was  done  b}'  the  agent.  But  it 
is  said  that  Robertson  wrote  a  letter  at  New  Orleans  to  Cloud,  two  days 
before  Carter  wrote  accepting  the  offer  of  the  land,  revoking  Cloud's 
authority  to  sell  for  $10,000.  There  was  testimony  to  the  effect  that 
Carter's  letter,  agreeing  to  buy,  was  received  by  Cloud  before  the  letter 
from  Robertson  revoking  his  agency  or  withdrawing  the  land  from  sale 


SECT.  I.]  BAXTER   V.    BURFIELD.  957 

on  the  original  terms.  Robertson's  letter  was  dated  at  New  Orleans, 
two  days  prior  to  Carter's  letter  at  Owl  Creek,  Virginia.  But  it  may  be 
true,  as  stated  by  Cloud  in  his  testimony,  that  the  former  was  received 
first.  The  revocation  of  an  agency  to  be  operative  must  be  made  known 
to  the  agent,  and  becomes  effective  from  tliat  time  as  to  him.  Storv  on 
Agency,  §  470.  The  relation  between  Cloud  and  Robertson  would  be 
dissolved  on  the  receipt  by  the  former  of  knowledge  of  the  revocation, 
and  not  from  the  date  of  writing  and  maihng  the  letter.  There  is  no 
parallel  in  principle  and  reason  to  that  class  of  cases,  where  one  man 
makes  an  offer  to  buy  or  sell  property  to  another  through  the  mail.  In 
such  eases,  the  writing  and  mailing  promptly  of  a  response  accepting 
the  offer,  concludes  the  contract.  The  aggregatio  rnentium  has  occurred. 
The  parties  have  both  assented  to  the  bargain.  The  acceptance  by  the 
one  of  the  terms  proposed  by  the  other,  transmitted  by  due  course  of 
mail,  closes  the  contract  from  the  time  of  the  acceptance.  Adams  v. 
Linsell,  1  Barn.  &  Aid.  681  ;  Mactier's  Admr.  v.  Frith,  6  Wend.  103  ; 
Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  (U.  S.)  390  ;  Curtis  v.  Blair, 
26  Miss.  322. 

Where  a  jury  is  dispensed  with,  and  the  whole  case  is  submitted  to 
the  court,  this  court  should  regard  the  conclusions  of  the  judge  on  the 
facts  in  evidence  as  it  would  the  verdict  of  a  jurv.  There  was  testi- 
mony to  the  point  that  Cloud  had  found  a  purchaser  before  he  was 
actually  notified  by  his  principal  that  the  terms  of  sale  had  been 
changed  or  his  autliorit}'  revoked. 

We  are  of  opinion  that  there  is  no  error  in  the  judgment. 

Wherefore  it  is  affirmed. 


SECTION   I.  {continued), 

(B)    Death. 

BAXTER,  WIDOW  and  executrix,  v.  BURFIELD. 
King's  Bench.     1746. 

[2  Str.  1266.] 

In  debt  on  bond,  conditioned  for  Matthias  Anderson's  performance 
of  the  covenants  in  an  indenture  of  apprenticeship,  whereby  he  was 
bound  to  the  plaintiflT's  testator,  who  was  a  mariner :  the  defendant 
pleaded  that  Anderson  served  faithfullv  to  the  death  of  the  testator ; 
the  plaintiff  replied  that  since  the  death  of  the  testator,  Anderson  had 
absented  from  her  service,  to  wliich  there  was  a  demurrer.  And  after 
argument  at  bar,  the  Chief  Justice  delivered  the  resolution  of  the 
court,  viz. :  That  they  were  all  of  opinion,  the  defendant  should  have 


958  HAEPER   V.    LITTLE.  [CHAP.  IX. 

judgment,  and  the  executrix  could  maintain  no  such  action.  The  bind- 
in<y  was  to  the  man,  to  learn  his  art,  and  serve  him,  without  any 
mention  of  executors.  And  as  the  words  are  confined,  so  is  the 
nature  of  the  contract ;  for  it  is  fiduciaiy,  and  the  lad  is  bound  from  a 
personal  knowledge  of  the  integrity  and  ability  of  the  master  (Hob. 
134,  Vaugh.  182,  3  Keb.  519  audi  Keb.  820,  1  Sid.  116),  and  they 
denied  the  case  in  1  Lev.  177.  An  award  (Hil.  8  Ann.  Home  v. 
Blake)  that  an  apprentice  should  be  assigned,  was  held  void  ;  unless 
there  was  a  custom,  or  the  concurrence  of  the  apprentice.  And  they 
held  it  was  not  material  that,  according  to  Cro.  Eliz.  553,  the  assets 
were  liable  on  the  master's  covenant  to  maintain.  Therefore  judgment 
pro  de/.^ 


HARPER   V.  LITTLE. 

Supreme  Court  of  Maixe.     1822. 

[2  Me.,  U.] 

This  was  a  writ  of  entry  upon  the  demandants'  own  seisin,  and  a  dis- 
seisin b^'  the  tenant,  and  came  before  the  court  upon  a  case  stated  by 
the  parties  as  follows  : 

William  Jackson,  late  of  Balize,  in  the  province  of  Yucatan,  and 
father  of  all  the  demandants  except  Harper,  who  sued  in  right  of  his 
wife,  being  seised  of  the  demanded  premises,  March  25,  1811,  made  a 
general  letter  of  attorney  under  seal  to  Harper,  authorizing  him, 
among  other  things,  to  sell,  transfer  and  convc}^  any  real  estate  of  his 
constituent  in  Portland,  and  in  his  name  to  give  deeds  of  the  same. 

Jackson  afterwards  died  at  Balize,  August  18,  1813,  during  the  war 
between  the  United  States  and  Great  Britain. 

Harper,  not  having  heard  of  the  decease  of  Jackson,  the  intercourse 
with  Balize  being  interrupted  by  the  war,  made  a  deed  Januarv  8,  1814, 
in  his  capacity  of  attorney  to  Jackson,  purporting  to  be  a  regular  exe- 
cution of  the  power,  and  to  convey  the  demanded  premises  to  the 
tenant,  for  the  consideration  of  fifteen  hundred  dollars,  which  was  paid 
b}'  the  tenant,  but  never  paid  over  b}'  Harper  to  the  executors  of 
Jackson's  will. 

Upon  these  facts  the  questions  presented  to  the  court  were  —  1st. 
Whether  the  deed  from  Harper  to  the  tenant  was  effectual  to  pass  the 
estate?  2d.  If  not,  whether  Harper  was  estopped  b}-  the  deed  from 
claiming  any  part  of  the  demanded  premises?  If  these  questions 
should  be  resolved  against  the  tenant,  it  was  agreed  that  the  cause 
should  stand  for  trial,  the  tenant  claiming  the  land  under  a  sale  for 
non-paj-ment  of  direct  taxes  assessed  by  the  United  States. 

1  See  Yerrington  v.  Greene,  7  R.  I.  589  (1863),  s.  c.  Wambangh's  Cases  fo« 
Analysis,  202;  Lacy  v.  Getman,  119  N.  Y.  109  (1890).  —Ed. 


SECT.  I.j  HARPER   '0.   LITTLE.  959 

Greenleaf,  for  the  demandants. 

Todd  and  Jjongfellovj ^  for  the  tenants. 

Mellen,  C.  J.  The  principal  question,  if  not  the  only  one,  in  this 
cause,  is  whether  the  deed  made  bj-  Harper  under  the  power  of 
attorney  from  Jackson,  operated  to  pass  the  estate  to  the  tenant 
according  to  the  intention  of  all  concerned ;  or,  in  other  words, 
whether  the  death  of  Jackson  before  the  execution  of  the  deed,  though 
unknown  to  Harper  and  Little  at  that  time,  was  such  a  determination 
of  the  power  of  attorney  as  to  render  the  deed  void  and  ineffectual  as 
a  conveyance  of  the  estate. 

It  is  admitted  tliat  a  revocation  of  a  power  not  coupled  with  an 
interest,  will  not  defeat  and  render  void  those  acts  which  are  done  in 
pursuance  of  it,  and  prior  to  notice  of  such  revocation  being  given  to  the 
attorney'.  Authorities  are  clear  and  direct  on  this  point.  The  tenant 
contends  that  the  same  principle  is  applicable  and  ought  to  prevail  in 
case  of  the  determination  of  a  power  of  attorne}-  by  the  death  of  the  con- 
stituent; such  death  not  being  known  at  the  time  of  the  execution  of 
the  conveyance  made  pursuant  to  such  power,  —  though  he  frankly 
admits  that  no  case  can  be  found  which  establishes  that  principle. 
This  very  circumstance  goes  far  toward  showing  the  legal  distinction 
existing  between  the  two  cases.  In  the  case  of  a  revocation,  the 
power  continues  good  against  the  constituent,  till  notice  is  given  to  the 
attorney ;  but  tlie  instant  the  constituent  dies,  the  estate  belongs  to 
his  heirs,  or  devisees,  or  creditors  ;  and  their  rights  cannot  be  divested 
or  impaired  bj*  any  act  performed  b}'  the  attorney  after  the  death  has 
happened ;  the  attorney'  then  being  a  stranger  to  them  and  having  no 
control  over  their  property.  In  Watson  v.  King,  4  Campb.  272,  it  was 
decided  b^-  Lord  EUenborough  that  a  power  of  attornej',  though 
coupled  with  an  interest,  is  instantly  revoked  hy  the  death  of  the 
grantor ;  and  an  act  afterwards  bona  fide  done  under  it  by  the  grantee 
before  notice  of  the  death  of  the  grantor  is  a  nullity. 

The  counsel  for  the  tenant  has  contended  that  the  power  and  the 
deed  made  in  pursuance  of  it  constitute  but  one  act.  Still,  this  one 
act  was  not  completed  till  months  after  Jackson's  death,  and  is  equally 
ineffectual  on  this  hypothesis.  The  deed  is  therefore  ineffectual  to 
pass  the  estate.^  .  .  . 

Upon  the  facts  stated  in  the  agreement  of  the  parties,  we  are  of 
opinion  that  the  action  is  in  law  maintainable,  —  but,  as  it  is  suggested 
that  the  tenant  has  another  defence  on  which  he  relies,  grounded  on 
a  sale  of  the  demanded  premises  under  the  law  of  the  United  States 
by  one  of  their  collectors  of  direct  taxes,  the  cause  must  stand  for 
trial  that  the  merits  of  that  defence  may  be  investigated.^ 

1  The  omitterl  passa^jes  held  that  there  was  no  estoppel.  —  Ed. 

2  Arc. :  Watson  v.  King,  4  Camp.  272  (181.5)  ;  Davis  v.  Windsor  Savings  Bank,  46 
Vt.  728,  731  (1874) ;  Weber  v.  Bridgmaii,  11.3  N.  Y.  (JOO,  605  (1889)  ;  Farmers'  Loan 
&  Trust  Co.  V.  Wilson,  139  N.  Y.  284  (1893). 

Contra:  Cassiday  v.  McKenzie,  4  W.  &  S.  282  (1842) ;  Ish  v.  Crane,  13  Ohio  St. 
^74(1862).  — Ed. 


960  GRIGGS   V.   SWIFT.  [^HAP.  IX. 

JOHNSON  V.  JOHNSON'S  ADMINISTRATORS. 

Supreme  Court  of  Ohio.^     1834. 

[  Wright,  594.] 

Assumpsit  for  money  had  and  received.  The  general  issue  joined. 
It  appeared  in  evidence  that  sundry  promissory  notes  were  placed  in 
the  hands  of  the  intestate  to  receive  the  amount  and  pay  it  out  to 
others,  and  that  after  his  death  the  administrators  had  collected  the 
money,  and  paid  it  out  accordingl}-. 

Van  Mutre^  for  the  plaintiff,  claimed  to  recover  the  amount  received, 
notwithstanding  it  had  been  apphed  according  to  the  agreement,  be- 
cause there  is  no  matter  of  set-off,  and  the  defence  is  not  admissible 
under  the  general  issue. 

jPoic,  contra. 

Lane.  J.  The  intestate  received  the  notes  to  collect  the  amount 
and  pay  over  to  others,  but  before  this  was  done  he  died.  The  author- 
ity to  collect  became  inoperative  by  the  death  of  the  person  receiving  it. 
The  right  to  act  under  the  power  did  not  pass  to  his  administrator.  As 
the  case  is  without  any  evidence  of  interest  in  the  intestate,  and  as  the 
defendants  acting  as  his  administrators  have  received  the  money  of  the 
plaintiff,  and  have  paid  it  out  to  others  without  authority,  tlie  payment 
is  a  nullity,  and  does  not  discharge  their  liability.  If  b}'  such  payment 
the  defendants  have  acquired  a  right  of  the  plaintiff,  upon  which  they 
might  sue,  that  is  a  proper  subject  of  set-off,  not  of  defence  under  the 
general  issue.  The  law  arising  on  the  case  as  it  stands  is  with  the 
plaintiff.  Judgment  for  the  plaintiff. 


GRIGGS  v.  SWIFT,  Surviving  Partner.    , 
Supreme  Court  of  Georgia.     1889. 

[82  Ga.  392.] 

Nonsuit.  Before  Judge  Smith,  Muscogee  Superior  court.^  At  the 
conclusion  of  the  testimony  for  the  plaintiff,  defendant  moved  for  a  non- 
suit, which  was  granted;  and  plaintiff  excepted. 

T.  TF.  Grimes  and  Peabocly,  Brannon  S  Hatcher^  for  plaintiff. 

McNeill  ct*  Levy,  for  defendant. 

Bleckley,  C.  J.  The  hiring  was  b}'  the  partnership,  for  the  term  of 
one  year  from  September  1,  1886,  at  $50  per  month,   besides  board. 

^  On  circuit,  Lane  and  Wright,  JJ.,  sitting.  —  Ed. 
2  The  reporter's  statement  has  been  omitted.  —  Ed. 


SECT,  I.]  GRIGGS   V.    SWIFT.  961 

One  of  the  two  partners  of  which  the  firm  consisted  died  in  November, 
and  the  survivor  discharged  the  plaintiff  on  the  1st  of  January.  The 
plaintiff  could  obtain  no  other  employment  until  the  following  July  ; 
and,  after  the  3'ear  expired  for  which  he  was  hired  by  the  partnership, 
he  brought  this  action,  claiming  the  agreed  compensation  from  the  1st 
of  January,  the  time  of  his  discharge,  up  to  tiie  date  in  July  when  he 
procured  other  employment,  and  his  expenses  for  board  during  the 
same  period. 

As  there  is  no  trace  in  the  evidence  that  the  partnership  was,  by  the 
terms  of  its  creation,  to  subsist  or  continue  after  the  death  of  one  of  its 
members,  such  death  wrought  a  dissolution,  and  forever  terminated  the 
partnership.  Code,  §§  1892,  1894.  One  of  the  parties,  therefore,  to 
the  contract  of  hiring  became  extinct  by  the  act  of  God. 

The  Code  declares  (section  2871)  that  if  performance  is  impossi- 
ble and  becomes  so  by  the  act  of  God,  such  impossibility  is  itself 
equivalent  to  performance.  There  being  no  one,  after  the  partnership 
went  out  of  existence,  to  receive  the  personal  services  which  the  plain- 
tiff had  contracted  to  render  as  inspector  of  farms  and  collector  for  the 
partnership,  the  further  execution  of  the  contract  was  as  much  impossi- 
ble as  if  the  plaintiff  himself  had  died  before  or  after  a  dissolution  of 
the  firm  had  taken  place.  The  survivor  transacted  no  new  business  on 
the  partnership  account,  but  confined  operations  to  closing  up  the  firm 
affairs.  The  classification  of  every  contract  must  depend  upon  a 
rational  interpretation  of  the  intention  of  the  parties.  Code,  §  2721. 
From  the  very  nature  of  a  contract  for  the  rendition  of  personal  ser- 
vices to  a  partnership  in  its  current  business,  where  nothing  is  ex- 
pressed to  the  contrary,  both  parties  should  be  I'egarded  as  having  by 
implication  intended  a  condition  dependent,  on  the  one  hand,  upon  the 
life  of  the  employe,  and,  on  the  other,  upon  the  life  of  the  partnership, 
provided  the  death  in  either  case  was  not  voluntar}'.  To  this  effect  is 
the  text  of  Wood,  Mast.  &  Serv.  §  163:  "Where  a  servant  is  em- 
ployed by  a  firm,  a  dissolution  of  the  firm  dissolves  the  contract,  so 
that  the  servant  is  absolved  therefrom  ;  but  if  the  dissolution  results 
from  the  act  of  the  parties,  the}-  are  liable  to  the  servant  for  his  loss 
therefrom  ;  but  if  the  dissolution  results  from  the  death  of  a  member  of 
the  firm,  the  dissolution  resulting  by  operation  of  law,  and  not  from  the 
act  of  the  parties,  no  action  for  damages  will  lie.  .  .  .  So  if  a  firm  con- 
sists of  two  or  more  persons,  and  one  or  more  of  them  dies,  but  the 
firm  is  not  thereby  dissolved,  the  contract  still  subsists,  because  one 
or  more  of  his  partners  is  still  in  the  firm,  and  this  is  so  even  though 
other  persons  are  taken  into  the  firm.  The  test  is  whether  the  firm  is 
dissolved.  So  long  as  it  exists,  the  contract  is  in  force,  but  when  it  is 
dissolved,  the  contract  is  dissolved  with  it,  and  the  question  as  to 
whether  damages  can  be  recovered  therefor  will  depend  upon  the  ques- 
tion whetlier  the  dissolution  resulted  from  the  act  of  God,  the  operation 
of  law,  or  the  act  of  the  parties."  Mr.  Wood's  reference  is  to  two 
Scotch  cases,  which  we  have  not  seen,  but  the  rule  he  deduces  from 

61 


962  INSURANCE   COMPANY   V.    DAVIS.  [CHAP.  IX, 

them  is  so  reasonable  that  we  feel  warrauted  in  accepting  it  as  law. 
See,  also,  Tasker  u.  Shepherd,  6  Hurl.  &  N.  575. 

As  to  death  of  a  person  not  a  partner,  but  a  sole  emplo3er,  see 
Yerrington  v.  Greene,  7  R.  I.  589  ;  Wood,  Mast.  &  Serv.  §§  95,  158. 

The  case  of  Fereira  v.  Say  res,  5  Watts  *&  S.  210,  is  apparently  in 
conflict  with  the  text  of  Wood  as  above  quoted,  but  we  are  satisfied  to 
abide  by  the  rule  laid  down  in  Wood,  though  it  be  at  the  expense  of 
differing  with  the  learned  court  of  Pennsylvania,  by  whom  the  last- 
named  case  was  decided.  The  contract  upon  which  the  plaintiff's  suit 
was  founded  having  become  impossible  of  performance  by  reason  of 
death,  he  had  no  right  to  recover  upon  the  same  against  the  surviving 
partner  for  services  never  actually  rendered,  and  there  was  no  error  in 
granting  a  nonsuit.  Of  course,  the  claim  for  board  was  on  the  same 
footing  as  that  for  wages.  Judgment  ciffinned.^ 


SECTION   I.   (continued). 
(C)   Some  other  Modes  of  Termination. 

INSURANCE    COMPANY    v.   DAVIS. 
Supreme  Court  of  the  United  States.     1877. 

[95  U.  S.  425.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Virginia. 

This  was  an  action  on  a  policy  of  life  insurance  issued  b}'  the  New 
York  Life  Insurance  Company-,  a  New  York  corporation,  before  the 
"War,  upon  the  life  of  Sloraan  Davis,  a  citizen  and  resident  of  the  State 
of  Virginia.  The  polic}'  contained  the  usual  condition,  to  be  void  if 
the  renewal  premiums  were  not  promptly  paid.  The}'  were  regularl}'' 
paid  until  the  beginning  of  the  war.  The  last  payment  was  made 
Dec.  28,  1860.  The  company,  previous  to  the  war,  had  an  agent,  A.  B. 
Garland,  residing  in  Petersburg,  Va.,  where  the  assured  also  resided; 
and  premiums  on  this  policy  were  paid  to  him  in  the  usual  way,  he 
giving  receipts  therefor,  signed  by  the  president  and  actuar}',  as  pro- 
vided on  the  margin  of  the  polic}',  which  were  usually  sent  to  the  agent 
about  thirtj'  da3'S  in  advance  of  the  maturitj'  of  the  premium.  About  a 
year  after  the  war  broke  out  the  agent  entered  the  Confederate  service 
as  a  major,  and  remained  in  that  service  until  the  close  of  the  war. 

Offer  of  payment  of  the  premium  next  due  was  made  to  the  agent  in 
December,  1861,  which  he  declined,  alleging  that  he  had  received  no 

1  See  Tasker  v.  Shepherd,  6  H.  &  N.  575  (1861). 

Compare  Bank  of  State  of  New  York  v.  Vauderhorst,  32  N.  Y.  553  (1865).  —  Ed. 


SECT.  I.]  INSURANCE   COMPANY   V.   DAVIS.  9G3 

receipts  from  the  company,  and  that  the  mone}',  if  he  did  receive  it, 
would  be  confiscated  by  the  Confederate  government.  A  similar  oflTer 
was  made  to  him  after  the  close  of  the  war,  which  he  also  declined.  He 
testified  that  he  refused  to  receive  an}-  premiums,  had  no  communication 
with  the  company  during  the  war,  and  after  it  terminated  did  not  resume 
his  agency. 

Slonian  Davis  died  in  September,  1867. 

The  plaintiff  below  was  assignee  of  the  policy,  and  claimed  to  recover 
the  amount  thereof,  $10,000,  upon  the  ground  that  he  was  guilty  of  no 
laches,  and  that  at  the  close  of  the  war  the  policy  revived. 

It  is  unnecessary  to  state,  in  detail,  the  proceedings  at  the  trial.  The 
plaintiff  contended,  and  the  judge  instructed  the  jury,  in  substance, 
that  they  might  infer  from  the  evidence  that  the  place  of  payment  in- 
tended by  the  parties  was  at  the  residence  of  the  plaintiff;  and  that,  if 
the  company  did  not  furnish  receipts  to  its  agent,  so  that  the  premiums 
could  be  paid  according  to  the  terms  of  the  policy,  it  was  not  the  fault 
of  the  plaintiff;  and,  if  he  was  ready  and  offered  to  pay  his  premium  to 
the  agent,  there  could  be  no  forfeiture  of  the  policy,  if  within  reasonable 
time  after  the  war  he  endeavored  to  paj^  his  premiums,  and  the  company 
refused  to  receive  them.  On  the  other  hand,  the  defendant  contended 
that  the  war  put  an  end  to  the  agency  of  Garland,  and  the  offer  to  paj' 
the  premium  to  him  was  of  no  validity,  and  the  failure  to  pa}'  rendered 
the  policy  void.  This  view  was  rejected  by  the  court,  and  a  verdict 
was  rendered  for  the  amount  of  the  polic}',  less  the  amount  of  certain 
premium  notes  which  had  been  given  by  the  assured. 

Judgment  was  rendered  upon  the  verdict,  and  the  company  then 
brought  the  case  here. 

Mr.  Matt.  H.  Carpenter i,  for  the  plaintiff  in  error. 

Mr.  Samuel  B.  Paul.,  contra. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court* 

The  legal  effect  of  the  policy  itself  was,  that  payment  should  be  made 
to  the  company  at  its  domicile.  The  indorsement  on  the  margin,  which 
is  much  relied  on  by  the  plaintiff's  counsel,  has  no  such  effect  as  he 
attributes  to  it.  It  is  in  these  words  :  "  All  receipts  for  premiums  paid 
at  agencies  are  to  be  signed  b}'  the  president  or  actuary."  This  is  sim- 
ply a  notice  to  the  assured  that,  if  he  shall  pay  his  annual  premium  to  an 
agent,  or  at  an  agency,  he  must  not  do  so  without  getting  a  receipt 
signed  by  the  president  or  actuary  of  the  compan}'.  How  this  caution 
can  possibly  be  construed  into  an  agreement  on  the  part  of  the  company 
to  make  an}'  particular  agency  the  legal  place  of  payment  of  premium 
it  is  difficult  to  see.  The  circumstances  show  nothing  but  the  common 
case  of  the  establishment  of  an  agency  for  the  mutual  convenience  of 
the  parties,  and  do  not  present  the  slightest  ground  for  varying  the 
legal  effect  of  their  written  contract.  We  think,  therefore,  that  the 
charge  was  erroneous  on  this  point.     Of  course,  we  do  not  mean  to  be 

1  After  citing  New  York  Life  Jus.  Co.  v.  Statham,  93  U.  S.  24.  —  Ed. 


964  INSURANCE    COMPANY   V.    DAVIS.  [CHAP.  IX 

understood  as  holding  that,  as  long  as  an  agenc}'  is  continued,  a  tender 
to  the  agent  would  not  be  valid  and  binding  on  the  eompan}-. 

But  we  deem  it  proper  to  consider  more  particularly  the  question  of 
agency,  and  the  alleged  right  of  tendering  premiums  to  an  agent,  during 
the  war. 

That  war  suspends  all  commercial  intercourse  between  the  citizens  of 
two  belligerent  countries  or  States,  except  so  far  as  may  be  allowed  by 
the  sovereign  authority,  has  been  so  often  asserted  and  explained  in 
this  court,  within  the  last  fifteen  years,  that  any  further  discussion  of 
that  proposition  would  be  out  of  place.  As  a  consequence  of  this  funda- 
mental proposition,  it  must  follow  that  no  active  business  can  be  main- 
tained, either  personally  or  by  correspondence,  or  through  an  agent, 
by  the  citizens  of  one  belligerent  with  the  citizens  of  the  other.  The 
only  exception  to  the  rule  recognized  in  the  books,  if  we  la}'  out  of  view 
contracts  for  ransom  and  other  matters  of  absolute  necessity,  is  that  of 
allowing  the  pa3-raent  of  debts  to  an  agent  of  an  alien  enemy,  where 
such  agent  resides  in  the  same  State  with  the  debtor.  But  this  indul- 
gence is  subject  to  restrictions.  In  the  first  place,  it  must  not  be  done 
with  the  view  of  transmitting  the  funds  to  the  principal  dui'ing  the 
continuance  of  the  war  ;  though,  if  so  transmitted  without  the  debtor's 
connivance,  he  will  not  be  responsible  for  it.  Washington,  J.,  in  Conn 
V.  Penn,  Pet.  C.  Ct.  496;  Buchanan  v.  Curry,  19  Johns.  (N.  Y.)  141. 
In  the  next  place,  in  order  to  the  subsistence  of  the  agency  during  the 
war,  it  must  have  the  assent  of  the  parties  thereto,  —  the  principal 
and  the  agent.  As  war  suspends  all  intercourse  between  them,  pre- 
venting anj'  instructions,  supervision,  or  knowledge  of  what  takes  place, 
on  the  one  part,  and  any  report  or  application  for  advice  on  the  other, 
this  relation  necessaril}'  ceases  on  the  breaking  out  of  hostilities,  even 
for  the  limited  purpose  before  mentioned,  unless  continued  b}'  the 
mutual  assent  of  the  parties.  It  is  not  compulsor}' ;  nor  can  it  be 
made  so,  on  either  side,  to  subserve  the  ends  of  third  parties.  If  the 
agent  continues  to  act  as  such,  and  his  so  acting  is  subsequently 
ratified  by  the  principal,  or  if  the  principal's  assent  is  evinced  by  any 
other  circumstances,  then  third  parties  ma}'  safel}'  pa}'  money,  for  the 
use  of  the  principal,  into  the  agent's  hands,  but  not  otherwise.  It  is 
not  enough  that  there  was  an  agency  prior  to  the  war.  It  would  be 
contrary  to  reason  that  a  man,  without  his  consent,  should  continue  to 
be  bound  by  the  acts  of  one  whose  relations  to  him  have  undergone  such 
a  fundamental  alteration  as  that  produced  by  a  war  between  the  two 
countries  to  which  they  respectively  belong  ;  with  whom  he  can  have 
no  correspondence,  to  whom  he  can  communicate  no  instructions,  and 
over  whom  he  can  exercise  no  control.  It  would  be  equally  unreasonable 
that  the  agent  should  be  compelled  to  continue  in  the  service  of  one 
whom  the  law  of  nations  declares  to  be  his  public  enemy.  If  the  agent 
has  property  of  the  principal  in  his  possession  or  control,  good  faith  and 
fidelity  to  his  trust  will  require  him  to  keep  it  safely  during  the  war,  and 
to  restore  it  faithfully  at  its  close.     This  is  all.     The  injustice  of  holding 


SECT.  I.]  INSURANCE    COMPANY   V.   DAVIS.  965 

a  principal  bound  by  what  an  agent,  acting  without  his  assent,  may  do 
in  such  cases,  is  forcibly  illustrated  by  Mr.  Justice  Davis,  in  delivering 
the  opinion  of  this  Court  in  Fretz  v.  Stover,  22  Wall.  198.  In  that  case, 
the  agent  had  collected  in  Confederate  funds  the  amount  due  on  a  bond. 
Having  asserted  tliat  the  agent  had  no  authority  to  do  this,  the  learned 
justice  adds  :  "  If  it  were  otherwise,  then,  as  long  as  the  war  lasted, 
every  Northern  creditor  of  Southern  men  was  at  tlie  mercy  of  the  agent 
he  had  employed  before  the  war  commenced.  And  his  condition  was  a 
hard  one.  Directed  by  his  government  to  hold  no  intercourse  with  his 
agent,  and  therefore  unable  to  change  instructions  which  were  not 
applicable  to  a  state  of  war,  yet  he  was  bound  b}-  the  acts  of  his  agent 
in  the  collection  of  his  debts,  the  same  as  if  peace  prevailed.  It  would 
be  a  reproach  to  the  law,  if  creditors,  without  fault  of  their  own,  could 
be  subjected  to  such  ruinous  consequences."  These  observations  have 
a  strong  bearing  upon  the  point  now  under  consideration. 

What  particular  circumstances  will  be  sufficient  to  show  the  consent 
of  one  person  that  another  shall  act  as  his  agent  to  receive  payment  of 
debts  in  an  enemj-'s  countrj-  during  war,  ma}-  sometimes  be  difficult  to 
determine.  Emerigon  says,  that  if  a  foreigner  is  forced  to  depart  from 
one  country  in  consequence  of  a  declaration  of  war  with  his  own,  he  may 
leave  a  power  of  attorney  to  a  friend  to  collect  his  debts,  and  even  to 
sue  for  them.  Traite  des  Assurances,  vol.  i.  567.  But  though  a  power 
of  attorney  to  collect  debts,  given  under  such  circumstances,  might  be 
valid,  it  is  generall}'  conceded  that  a  power  of  attorney  cannot  be  given, 
during  the  existence  of  war,  by  a  citizen  of  one  of  the  belligerent  coun- 
tries resident  therein,  to  a  citizen  or  resident  of  the  other  ;  for  that  would 
be  holding  intercourse  with  the  enemy,  which  is  forbidden.  Perhaps  it 
may  be  assumed  that  an  agent  ante  helium^  who  continues  to  act  as  such 
during  the  war,  in  the  receipt  of  mone}'  or  property  on  behalf  of  his 
principal,  where  it  is  the  manifest  interest  of  the  latter  that  he  should 
do  so,  as  in  the  collection  of  rents  and  other  debts,  the  assent  of  the 
principal  will  be  presumed,  unless  the  contrar}-  be  shown  ;  but  that, 
where  it  is  against  his  interest,  or  would  impose  upon  him  some  new 
obligation  or  burden,  his  assent  will  not  be  presumed,  but  must  be 
proved,  either  by  his  subsequent  ratification,  or  in  some  other  manner. 

In  some  way.  however,  it  must  appear  that  the  alleged  agent  assumed 
to  act  as  such,  and  that  the  alleged  principal  consented  to  his  so  acting. 
It  is  believed  that  no  well-considered  case  can  be  found  anterior  to  these 
life-insurance  cases  which  have  arisen  out  of  the  late  civil  war,  in  which 
the  existence  or  continuance  of  an  agenc}',  under  the  circumstances 
above  referred  to,  have  been  established  contrary'  to  the  assent  of  the 
alleged  parties  to  that  relation.  Conn  v.  Penn,  supra,  is  the  leading 
authority  on  this  subject  in  this  countrv-  The  question  in  that  case 
•was  whether  the  claimants  of  land  in  Pennsylvania,  under  contracts 
of  purchase  from  the  proprietaries  (^the  Penns)  before  the  revolutionarj' 
war,  were  entitled  to  an  abatement  of  interest  during  the  war ;  and 
Justice  Washington  held  that  this  depended  on  the  question  whether. 


966  INSURANCE   COMPANY   V.   DAVIS.  [CHAP.  IX. 

during  the  war,  the  proprietaries,  being  alien  enemies,  "  had  in  the 
United  States  a  known  agent,  or  agents,  authorized  to  receive  the 
purchase-monej'  and  quit-rents  due  to  them  from  the  complainants," 
the  vendees.  To  enable  the  parties  to  adduce  proof  on  this  point, 
the  court  allowed  further  evidence  to  be  taken.  The  same  thing  was 
held,  at  tlie  same  term,  in  the  case  of  Dennison  et  al.  v.  Imbrie,  3  Wash. 
396,  where  Justice  Washington  says  :  "  We  think  that  if  the  alien 
enemj^  has  an  agent  in  the  United  States,  or  if  the  plaintiff  himself  was 
in  the  United  States,  and  either  of  these  facts  known  to  the  debtor, 
interest  ought  not  to  abate."  It  is  obvious  that,  in  these  cases,  the 
judge  assumed  that  the  relation  of  agency,  if  it  existed,  did  so  with  the 
mutual  consent  of  the  parties  thereto.  And  the  same  observation,  it  is 
believed,  may  be  made  with  regard  to  all  other  cases  on  the  subject, 
except  some  that  have  been  very  recently  decided. 

The  same  inference  may  be  deduced  from  the  cases  decided  in  this 
court  when  the  subject  of  payment  to  agents  in  an  enemy's  country  has 
been  discussed.  Amongst  others  we  ma3'  refer  to  the  following  :  Ward  v. 
Smith,  7  Wall.  447;  Brown  v.  Hiatts,  15  id.  177;  Montgomery  v. 
United  States,  id.  395  ;  Fretz  v.  Stover,  22  id.  198. 

In  some  recent  cases  in  certain  of  the  State  courts  of  last  resort, 
for  whose  decisions  we  always  entertain  the  highest  respect,  a  different 
view  has  been  taken  ;  but  we  are  unable  to  concur  therein.  In  our 
judgment,  the  unqualified  assumption  on  which  those  decisions  are 
based  —  namely,  "  once  an  agent  always  an  agent ;  "  or,  in  other  words, 
that  an  agency  continues  to  exist  notwithstanding  the  occurrence  of 
war  between  the  countries  in  which  the  principal  and  the  agent  respec- 
tively reside — is  not  correct,  and  that  the  continuance  of  the  agency 
is  subject  to  the  qualifications  which  we  have  stated  above. 

Now,  in  the  present  case,  except  at  the  very  commencement  of  the 
troubles,  before  the  President's  proclamation  of  non-intervention  had 
been  issued,  and  when  it  was  yet  uncertain  what  the  differences  be- 
tween the  two  sections  would  amount  to,  there  is  not  the  slightest 
evidence  that  the  company  authorized  Garland  to  act  for  it  at  all ;  and 
the  latter  expressly  refused  to  do  so  when  requested,  both  on  the  ground 
of  having  received  no  receipts  from  the  company  (which  were  his  only 
authority  for  receiving  payments),  and  of  the  liability  of  the  funds  to  be 
confiscated  in  his  hands.  The  war  suspended  his  agency  for  all  active 
purposes,  ajid  it  could  not  be  continued  even  for  the  collection  of  pre- 
miums without  the  defendant's  consent ;  and  this,  so  far  as  appears, 
was  never  given,  either  expressl}'  or  by  subsequent  ratification.  Under 
these  circumstances,  it  cannot  be  affirmed  that  the  plaintiff  could  bind 
the  defendant  by  a  tender  of  payment  to  the  supposed  agent.  However 
valid  a  payment  may  be,  if  made  to  an  agent  in  time  of  war,  where  he 
consents  to  act  as  such,  and  has  the  assent  of  his  principal  in  so  acting, 
an  offer  of  payment  cannot  have  any  force  or  effect  if  neither  of  these 
circumstances  exists. 

Waiving,  therefore,  the  consideration  of  any  question  that  may  be 


bECT.  I.]  DREW   V.   NUNN.  967 

made  with  regard  to  the  validity  of  an  insurance  on  the  life  of  an  alien 
enem}',  we  thinlc  that  in  the  present  case  there  was  not  the  slighest  foun- 
dation for  the  court  to  charge,  as  it  did  in  effect,  that  a  tender  of  the 
premium  to  Garland  in  Petersburg  was  a  good  tender,  and  binding  on 
the  company. 

We  do  not  mean  to  say,  that  if  the  defendant  had  continued  its 
authorit}'  to  the  agent  to  act  in  the  receipt  of  premiums  during  the  war, 
and  he  had  done  so,  a  payment  or  tender  to  him  in  lawful  mone}'  of  the 
United  States  would  not  have  been  valid  ;  nor  that  a  stipulation  to 
continue  such  autliority  in  case  of  war,  made  before  its  occurrence, 
would  not  have  been  a  valid  stipulation  ;  nor  that  a  policy  of  life 
insurance  on  which  no  premiums  were  to  be  paid,  though  suspended 
during  the  war,  might  not  have  revived  after  its  close.  We  place  our 
decision  simply  on  the  ground  that  the  agenc}'  of  Garland  was  termi- 
nated by  the  breaking  out  of  the  war,  and  that,  although  by  the  consent 
of  the  parties  it  might  have  been  continued  for  the  purpose  of  receiving 
payments  of  premiums  during  the  war,  there  is  no  proof  that  such  assent 
was  given,  either  b}'  the  defendant  or  by  Garland ;  but  that,  on  the 
contrary',  the  proof  is  positive  and  uncontradicted,  that  Garland  declined 
to  act  as  agent. 

Judgment  reversed,  vith  directions  to  award  a  venire  facias  de  novo} 

Mr.  J  ustice  Clifford  dissented. 


DREW  V.  NUNN. 

Court  of  Appeal.     1879. 

[4  Q.  B.  D.  661.] 

This  was  an  action  brought  b3'  a  tradesman  to  recover  the  price  of 
goods  supplied  to  the  defendant's  wife  upon  her  order  whilst  the 
defendant  was  insane.  The  following  facts  were  proved  at  the  trial 
before  Mellor,  J. 

The  wife  of  the  defendant  began  to  deal  with  the  plaintiff  in  1872; 
the  defendant  had  been  present  when  some  of  the  goods  were  ordered 
by  his  wife,  and  also  had  paid  for  some  of  them.  The  defendant  be- 
came ill  in  1873,  and  in  the  month  of  November  he  instructed  his  agent 
to  pay  all  his  income  to  his  wife,  and  empowered  her  to  draw  cheques 
upon  his  bankers.  He  became  insane  in  December,  and  was  confined 
in  an  asylum  until  April,  1877.  Whilst  the  defendant  was  in  the  asylum, 
his  wife  oi-dered  goods  from  the  plaintiff,  who  supplied  them  to  her 
upon  credit.  The  plaintiff  was  ignorant  that  the  defendant  was  insane 
and  had  been  placed  under  restraint  in  an  asylum,  and  he  did  not  know 

1  Ace. :    Howell  v.  Gordon,  40  Ga.  302  (1869). 
Compare  Darling  v.  Lewis,  11  Heisk.  125  (1872).  — Ed. 


968  DREW   V.    NUNN.  [CHAP.  IX. 

that  the  defendant's  income  was  paid  to  his  wife.  In  April,  1877,  the 
defendant  recovered  the  use  of  his  reason,  and  in  tlie  June  following  re- 
voked any  authority  which  he  might  have  given  to  his  wife  either  to  act 
as  his  agent  or  to  pledge  his  credit. 

Mellor,  J.,  refused  to  ask  the  jury  whether  the  income  of  the  de- 
fendant's wife  during  his  confinement  in  the  asylum  was  sufficient  to 
maintain  her,  and  directed  the  jury  that  the  plaintiff  was  entitled  to 
recover,  if  what  the  defendant's  wife  did  was  according  to  the  course 
pursued  whilst  the  defendant  lived  with  her.  The  jury  found  a  verdict 
for  the  plaintiff. 

The  defendant  applied  to  the  Queen's  Bench  Division  for  a  new  trial ; 
but  the  application  was  refused.  Upon  appeal  to  this  Court,  an  order 
7iisi  for  a  new  trial  was  granted  upon  the  ground  of  misdirection. 

Willis,  Q.  C.  (H.  0.  B.  Lane,  with  him),  for  the  plaintiff,  showed 
cause. 

Borne  Payne,  for  the  defendant. 

Cur.  adv.  vult. 

Brett,  L.  J.^  Upon  this  state  of  facts  two  questions  arise.  Does  insan- 
it}'  put  an  end  to  the  authorit}-  of  the  agent?  One  would  expect  to  find 
that  this  question  has  been  long  decided  on  clear  principles  ;  but  on  look- 
ing into  Storj'  on  Agency,  Scotch  authorities,  Pothier,  and  other  French 
authorities,  I  find  that  no  satisfactory  conclusion  has  been  arrived  at.  If 
such  insanity  as  existed  here  did  not  put  an  end  to  the  agent's  authority, 
it  would  be  clear  that  the  plaintiff  is  entitled  to  succeed,  but  in  my  opinion 
insanity  of  this  kind  does  put  an  end  to  the  agent's  authority.  It  can- 
not be  disputed  that  some  cases  of  change  of  status  in  the  principal  put 
an  end  to  the  authority  of  the  agent :  thus,  the  bankruptcy  and  death 
of  the  principal,  the  marriage  of  a  female  principal,  all  put  an  end  to 
the  authority  of  the  agent.  It  may  be  argued  that  this  result  follows 
from  the  circumstance  that  a  different  principal  is  created.  Upon 
bankruptcy  the  trustee  becomes  the  principal ;  upon  death  the  heir  or 
devisee  as  to  realty,  the  executor  or  administrator  as  to  personalty  ; 
and  upon  the  marriage  of  a  female  principal  her  husband  takes  her 
place.  And  it  has  been  argued  that  by  analog}'  the  lunatic  continues 
liable  until  a  fresh  principal,  namely,  his  committee,  is  appointed.  But 
I  cannot  think  that  this  is  the  true  ground,  for  executors  are,  at  least 
in  some  instances,  bound  to  carry  out  the  contracts  entered  into  b}' 
their  testators.  I  think  that  the  satisfactor}-  principle  to  be  adopted  is 
that,  where  such  a  change  occurs  as  to  the  principal  that  he  can  no 
longer  act  for  himself,  the  agent  whom  he  has  appointed  can  no  longer 
act  for  him.  In  the  present  case  a  great  change  had  occurred  in  the 
condition  of  the  principal :  he  was  so  far  afflicted  with  insanit}'  as  to 
be  disabled  from  acting  for  himself;  therefore  his  wife,  who  was  his 
agent,  could  no  longer  act  for  him.  Upon  the  ground  which  I  have 
pointed  out,  I  think  that  her  authority  was  terminated.    It  seems  to  me 

1  After  stating  the  caae.  —  Ed. 


SECT.  I.]  DREW   V.    NUNN.  969 

that  an  agent  is  liable  to  be  sued  by  a  third  person,  if  he  assumes  to 
act  on  his  principal's  behalf  after  he  had  knowledge  of  his  principal's 
incompetency  to  act.  In  a  case  of  that  kind  he  is  acting  wrongfully. 
The  defendant's  wife  must  be  taken  to  have  been  aware  of  her  husband's 
lunacy;  and  if  she  had  assumed  to  act  on  his  behalf  with  any  one  to 
whom  he  himself  had  not  held  her  out  as  his  agent,  she  would  have 
been  acting  wrongfully,  and,  but  for  the  circumstance  that  she  is  mar- 
ried, would  have  been  liable  in  an  action  to  compensate  the  person  with 
whom  she  assumed  to  act  on  her  husband's  behalf.  In  my  o)  linion,  if 
a  person  who  has  not  been  held  out  as  agent  assumes  to  act  en  behalf 
of  a  lunatic,  the  contract  is  void  against  the  supposed  principal,  and 
the  pretended  agent  is  liable  to  an  action  for  misleading  an  innocent 
person. 

The  second  question  then  arises,  what  is  the  consequence  where  a 
principal,  who  has  held  out  another  as  his  agent,  subsequently  becomes 
insane,  and  a  third  person  deals  with  the  agent  without  notice  that  the 
principal  is  a  lunatic?  Authority  may  be  given  to  an  agent  in  two  ways. 
First,  it  may  be  given  by  some  instrument,  which  of  itself  asserts  that 
the  authority  is  thereby  created,  such  as  a  power  of  attorney  ;  it  is  of 
itself  an  assertion  by  the  principal  that  the  agent  may  act  for  him. 
Secondly,  an  authorit}'  may  also  be  created  from  the  principal  holding 
out  the  agent  as  entitled  to  act  generally  for  him.  The  agency  in  the 
present  case  was  created  in  the  manner  last-mentioned.  As  between 
the  defendant  and  his  wife,  the  agency  expired  upon  his  becoming  to 
her  knowledge  insane  ;  but  it  seems  to  me  that  the  person  dealing  with 
the  agent  without  knowledge  of  the  principal's  insanity  has  a  right  to 
enter  into  a  contract  with  him,  and  the  principal,  although  a  lunatic,  is 
bound  so  that  he  cannot  repudiate  the  contract  assumed  to  be  made 
upon  his  behalf  It  is  difficult  to  assign  the  ground  upon  which  this 
doctrine,  which  however,  seems  to  me  to  be  the  true  principle,  exists. 
It  is  said  that  the  right  to  hold  the  insane  principal  liable  depends  upon 
contract.  I  have  a  difficulty  in  assenting  to  this.  It  has  been  said 
also  that  the  right  depends  upon  estoppel.  I  cannot  see  that  an  estop- 
pel is  created.  But  it  has  been  said  also  that  the  right  depends  upon 
representations  made  by  the  principal  and  entitling  third  persons  to  act 
upon  them,  until  they  hear  that  those  representations  are  withdrawn. 
The  authorities  collected  in  Story  on  Agenc}',  ch.  xviii.  §  481,  p.  610 
(7th  ed.),  seem  to  base  the  right  upon  the  ground  of  public  policy  :  it 
is  there  said  in  effect  that  the  existence  of  the  right  goes  in  aid  of 
public  business.  It  is  however  a  better  way  of  stating  the  rule  to  say 
iiijat  the  holding  out  of  another  person  as  agent  is  a  representation 
upon  which,  at  the  time  when  it  was  made,  third  parties  had  a  right  to 
act,  and  if  no  insanity  had  supervened  would  still  have  had  a  right 
to  act.  In  this  case  the  wife  was  held  out  as  agent,  and  the  plaintiff 
acted  upon  the  defendant's  representation  as  to  her  authority  without 
notice  that  it  had  been  withdrawn.  The  defendant  cannot  escape  from 
the  consequences  of  the  representation  which  he  has  made  ;  he  cannot 


970  DREW    V.    NUNN.  [CHAP.  IX. 

withdraw  the  agent's  authority  as  to  third  persons  without  giving  them 
notice  of  the  withdrawal.  The  principal  is  bound,  although  he  retracts 
the  agent's  authority,  if  he  has  not  given  notice  and  the  latter  wrong- 
fuU}'  enters  into  a  contract  upon  his  behalf.  The  defendant  became 
insane  and  was  unable  to  withdraw  the  authority  which  he  had  con- 
ferred upon  his  wife  ;  he  maj'  be  an  innocent  sufferer  by  her  conduct, 
but  the  plaintiff,  who  dealt  with  her  bond  fide.,  is  also  innocent,  and 
where  one  of  two  persons  both  innocent  must  suffer  by  the  wrong- 
ful act  of  a  third  person,  that  person  making  the  representation  which, 
as  between  the  two,  was  the  original  cause  of  the  mischief,  must  be  the 
sufferer  and  must  bear  the  loss.  Here  it  does  not  lie  in  the  defendant's 
mouth  to  sa}'  that  the  plaintiff  shall  be  the  sufferer. 

A  difficult}'  may  arise  in  the  application  of  a  general  principle  such 
as  this  is.  Suppose  that  a  person  makes  a  representation  which  after 
his  death  is  acted  upon  b}'  another  in  ignorance  that  his  death  has 
happened  :  in  my  view  the  estate  of  the  deceased  will  be  bound  to 
make  good  any  loss  which  may  have  occurred  through  acting  upon 
that  representation.  It  is,  however,  unnecessary  to  decide  this  point 
to-day. 

Upon  the  grounds  above  stated  I  am  of  opinion  that,  although  the 
authority  of  the  defendant's  wife  was  put  an  end  to  b}'  his  insanitj',  and 
although  she  had  no  authority  to  deal  with  the  plaintiff,  nevertheless 
the  latter  is  entitled  to  recover,  because  the  defendant  whilst  he  was 
sane  made  representations  to  the  plaintiff,  upon  which  he  was  entitled 
to  act  until  he  had  notice  of  the  defendant's  insanity,  and  he  had  no 
notice  of  the  insanity  until  after  he  had  supplied  the  goods  for  the  price 
of  which  he  now  sues.     The  direction  of  Mellor,  J.,  was  right. 

Bramwell,  L.  J.  I  agree  with  the  judgment  just  delivered  by  Brett, 
L.  J.  It  must  be  taken  that  the  defendant  told  the  plaintiff  that  his 
wife  had  authority  to  bind  him  ;  when  that  authorit}-  had  been  given,  it 
continued  to  exist,  so  far  as  the  plaintiff  was  concerned,  until  it  was 
revoked  and  until  he  received  notice  of  that  revocation.  It  ma}'  be 
urged  that  this  doctrine  does  not  extend  to  insanit}',  which  is  not  an 
intentional  revocation  ;  but  I  think  that  insanity  forms  no  exception  to 
the  general  law  as  to  principal  and  agent.  It  may  be  hard  upon  an 
insane  principal,  if  his  agent  abuses  his  authority  ;  but,  on  the  other 
hand,  it  must  be  recollected  that  insanity  is  not  a  privilege,  it  is  a  mis- 
fortune, which  must  not  be  allowed  to  injure  innocent  persons  :  it  would 
be  productive  of  mischievous  consequences,  if  insanity  annulled  every 
representation  made  by  the  person  afflicted  with  it  without  an}'  notice 
being  given  of  his  malady.  If  the  argument  for  the  defendant  were 
correct,  every  act  done  by  him  or  on  his  behalf  after  he  became  insane 
must  be  treated  as  a  nullity.  The  limits  of  the  doctrine  as  to  the 
liability  of  an  insane  person  may  be  uncertain,  and  it  may  not  be  pos- 
sible to  lay  down  any  broad  rule  ;  but  I  think  that  the  facts  before  us 
resemble  the  case  of  a  guarantee.  Suppose  that  a  promise  is  made  that, 
if  the  promisee  will  supply  goods  to  a  person  named,  the  promisor  will 


SECT.  I.]  DKEW   V.   NUNN.  971 

see  that  they  are  paid  for,  and  suppose  that  the  promisor  intends  to 
put  an  end  to  his  liabilit}-,  but  that  before  he  can  give  notice  to  the 
promisee,  the  latter  supplies  goods  to  the  person  named  ;  surely  the 
promisor  is  liable  for  tlie  price  ;  for  tlie  transaction  between  the  prom- 
isor and  promisee  was  equivalent  to  an  agreement  or  license  which  was 
to  continue  to  exist,  until  it  should  be  revoked  by  the  promisor,  and 
until  notice  of  that  revocation  should  be  received  b}-  the  promisee. 

It  has  been  assumed  by  Brett,  L.  J.,  that  the  insanity  of  the  defend- 
ant was  such  as  to  amount  to  a  revocation  of  his  wife's  autliorit3'.  I 
doubt  whether  partial  mental  derangement  would  have  that  effect. 
I  think  that  in  order  to  annul  the  authoritj'  of  an  agent,  insanity'  must 
amount  to  dementia.  If  a  man  becomes  so  far  insane  as  to  have  no 
mind,  perhaps  he  ought  to  be  deemed  dead  for  the  purpose  of  contract- 
ing.    I  think  that  the  direction  of  Mellor,  J. ,  was  right. 

Brett,  L.  J.  I  am  requested  by  Cottox,  L.  J.,  to  state  that  he  agrees 
with  the  conclusion  at  which  we  have  arrived ;  but  that  he  does  not 
wish  to  decide  whether  the  authority  of  the  defendant's  wife  was  termi- 
nated, or  whether  the  liability  of  a  contractor  lasts  until  a  committee 
has  been  appointed.  He  bases  his  decision  simph'  upon  the  ground 
that  the  defendant,  hy  holding  out  his  wife  as  agent,  entered  into  a 
contract  with  the  plaintiff  that  she  had  anthoritj'  to  act  upon  his  behalf, 
and  that  until  the  plaintiff  had  notice  that  this  authorit}-  was  revoked 
he  was  entitled  to  act  upon  the  defendant's  representations. 

I  wish  to  add  that  if  there  had  been  anv  real  question  as  to  the  extent 
of  the  defendant's  insanity,  it  ought  to  have  been  left  to  the  jury  ;  and 
that  as  no  question  was  asked  of  the  jur},  I  must  assume  that  the 
defendant  was  insane  to  the  extent  which  I  have  mentioned.  I  ma}' 
remark  that  from  the  mere  fact  of  mental  derangement  it  ought  not  to 
be  assumed  that  a  person  is  incompetent  to  contract ;  mere  weakness  of 
mind  or  partial  derangement  is  insufficient  to  exempt  a  person  from 
responsibilit}-  upon  the  engagements  into  which  he  has  entered. 

Appeal  dismissed.^ 

1  See  Da^-is  v.  Lane,  10  N.  H.  156  (1839);  Motley  r.  Head,  43  Vt.  633  (1871); 
Matthiessen  &  Weichers  Refining  Co.  v.  McMahon,  38  N.  J.  L.  536,  546  (1876).  — Ed. 


972  AHEEN   V.    BAKER.  [CHAP.  IX. 


A  HERN    V.   BAKER. 

Supreme  Court  of   Minnesota.     1885. 

[34  Miun.  98.] 

Appeal  by  plaintiff  from  an  order  of  the  District  Court  for  Ramsey 
Count}',  Simons,  J.,  presiding,  overruling  a  demurrer  to  the  answer. 

Linden  d;  Williams,  for  appellant. 

Bej'ryhill  &  Davison,  for  respondent. 

Vanderburgh,  J.  The  defendant,  on  the  ninth  day  of  September, 
1884,  specially  authorized  one  Wheeler,  as  his  agent,  to  sell  the  real 
property'  in  controversy,  and  to  execute  a  contract  for  the  sale  of  the 
same.  He  in  like  manner  on  the  same  day  empowered  one  Fair- 
child  to  sell  the  same  land,  the  authority  of  the  agent  in  each  in- 
stance being  limited  to  the  particular  transaction  named.  On  the 
same  day  Wheeler  etfected  a  sale  of  the  land,  which  was  consum- 
mated by  a  conve\'ance.  Subsequentlj',  on  the  tenth  day  of  Sep- 
tember, Fairchild,  as  agent  for  defendant,  and  having  no  notice  of 
the  previous  sale  made  b}^  Wheeler,  also  contracted  to  sell  the  same 
land  to  this  plaintiff,  who,  upon  defendant's  refusal  to  perform  on  his 
part,  brings  this  action  for  damages  for  breach  of  the  contract. 

Tins  is  a  case  of  special  agency,  and  there  is  nothing  in  the  case 
going  to  show  that  the  defendant  would  be  estopped  from  setting  up 
a  revocation  of  the  agency-  prior  to  the  sale  b}'  Fairchild.  A  revoca- 
tion ma}'  be  shown  b}'  the  death  of  the  principal,  the  destruction  of 
the  subject-matter,  or  the  determination  of  his  estate  by  a  sale,  as 
well  as  b}'  express  notice.  The  defendant  had  a  right  to  emplo}'  sev- 
eral agents,  and  the  act  of  one  in  making  a  sale  would  preclude  the 
others  without  any  notice,  unless  the  nature  of  his  contract  with  them 
required  it.  In  dealing  with  the  agent  the  plaintiff  took  the  risk  of  the 
revocation  of  his  agency.     1  Pars.  Cont.  71.* 

Order  affirmed^  and  case  remanded} 

1  See  Dickinson  v.  Dodds,  2  Ch.  D.  463  (C.  A.  1876). 
Compare  Claflin  v.  Lenheim,  66  N.  Y.  301  (1876).  —£d. 


SECT.  II.]  WALSH   V.    WHITCOMB.  973 


SECTION  II. 

Irrevocahility. 

WALSH   V.   WHITCOMB. 
Nisi  Pkius.      1797. 

[2  Esp.  565.] 

This  was  an  action  of  assumpsit  for  work  and  labor,  goods  sold 
and  delivered,  with  the  conimou  counts. 

Plea  of  non  assumpsit. 

The  action  was  brought  to  recover  a  sura  of  money  for  work  done  by 
the  plaintiff,  who  was  a  tailor. 

The  defence  was  that  Walsh,  the  plaintiff,  in  the  month  of  October, 
1794,  having  become  insolvent,  had  executed  a  power  of  attornej'  to 
one  Barker,  together  with  a  general  assignment  bj"  deed  authorizing 
him  to  receive  the  several  debts  due  to  him  for  the  benefit  of  his 
creditors,  and  to  give  proper  receipts  and  discharges  for  the  same  ; 
and  that  he  had  also  given  Barker  a  power  to  appoint  a  substitute  or 
other  person  to  act  in  his  room  for  the  same  purposes. 

In  October,  1795,  Barker,  in  pursuance  of  the  power  of  substitution 
so  given,  executed  an  authority  to  one  Charles  Hindlej'. 

Hindley  applied  to  the  defendant  Whitcomb  for  the  debt  due  to 
Walsh ;  he  paid  it  and  took  his  receipt. 

Some  time  after  Whitcomb  was  again  applied  to  for  payment  of  the 
same  demand,  by  another  person  claiming  under  a  power  of  attorney 
from  Walsh,  the  plaintiff.  The  defendant,  Whitcomb,  produced  the 
receipt  he  had  received  from  Hindley,  which  the  person  who  applied 
refused  to  allow ;  and  the  present  action  was  brought. 

For  the  plaintiff  it  was  contended,  that  a  power  of  attorney  is  from 
its  nature  revocable,  and  that  the  execution  of  the  subsequent  power  of 
attorne}'  was  a  revocation  of  the  former. 

Per  Lord  Kenyon.  There  is  a  difference  in  cases  of  powers  of  at- 
torney ;  in  general  they  are  revocable  from  their  nature,  but  there  are 
these  exceptions  :  "  where  a  power  of  attorney  is  part  of  a  security-  for 
money,  there  it  is  not  revocable  ;  where  a  power  of  attorney  was  made 
to  levy  fine,  as  part  of  a  security,  it  was  held  not  to  be  revocable  ;  the 
principle  is  applicable  to  every  case  where  a  power  of  attorney  is  neces- 
sary to  effectuate  any  security  ;  such  is  not  revocable."  In  the  present 
ease  Walsh  assigned  all  his  effects,  etc. ,  over  to  Barker,  to  whom 
amongst  others  he  was  indexed  :  the  power  of  attorney  was  made  to 
?>arker  to  call  in  the  debts  for  the  benefit  of  the  creditors  ;  it  was  i)art 


974  HUNT    V.   EOUSMANIEK.  [CHAP.  IX. 

of  the  security  for  the  pa3'ment  of  the  creditors.     It  was  therefore  by 
law  not  revocable,  and  the  payment  by  the  defendant  is  good.^ 

TJiejuru  found  a  verdict  for  the  defendant. 

Ersldne  and  Lmces,  for  the  plaintiff. 

Garrow^  for  the  defendant. 


HUNT  V.  ROUSMANIER'S  ADMINISTRATORS. 

Supreme  Court  of  the  United  States.     1823. 

[8  Wheat.  174.] 

Appeal  from  the  Circuit  Court  of  Rhode  Island. 

The  original  bill,  filed  b}'  the  appellant,  Hunt,  stated,  that  Lewis 
Rousmanier,  the  intestate  of  the  defendants,  applied  to  the  plaintiff,  in 
January,  1820,  for  the  loan  of  $1450,  offering  to  give,  in  addition  to 
his  notes,  a  bill  of  sale,  or  a  mortgage  of  his  interest  in  the  brig 
"  Nereus,'"'  then  at  sea,  as  collateral  security  for  the  repayment  of  the 
money.  The  sum  requested  was  lent;  and,  on  the  11th  of  January, 
the  said  Rousmanier  executed  two  notes  for  the  amount ;  and,  on  the 
15th  of  the  same  month  he  executed  a  power  of  attorne}-,  authorizing 
the  plaintiff  to  make  and  execute  a  bill  of  sale  of  three-fourths  of  the 
said  vessel  to  himself,  or  to  an}'  other  person  ;  and,  in  the  event  of  the 
said  vessel  or  her  freight  being  lost,  to  collect  the  mone}'  which  should 
become  due  on  a  policy  b}'  which  the  vessel  and  freight  were  insured. 
This  instrument  contained,  also,  a  proviso,  reciting,  that  the  power 
was  given  for  collateral  security  for  the  payment  of  the  notes  already 
mentioned,  and  was  to  be  void  on  their  payment ;  on  the  failure  to  do 
which,  the  plaintiff  was  to  pay  the  amount  thereof,  and  all  expenses, 
out  of  the  proceeds  of  the  said  property,  and  to  return  the  residue  to 
the  said  Rousmanier. 

The  bill  farther  stated,  that  on  the  21st  of  March,  1820,  the  plaintiff 
lent  to  the  said  Rousmanier  the  additional  sum  of  $700,  taking  his 
note  for  payment,  and  a  similar  power  to  dispose  of  his  interest  in  the 
schooner  "  Industry,"  then  also  at  sea.  The  bill  then  charged  that  on 
the  6th  of  May,  1820,  the  said  Rousmanier  died  insolvent,  having  paid 
onl}-  $200  on  the  said  notes.  The  plaintiff  gave  notice  of  his  claim ; 
and,  on  the  return  of  the  "Nereus"  and  "Industry,"  took  possession 
of  them,  and  offered  the  intestate's  interest  in  them  for  sale.  The 
defendants  forbade  the  sale  ;  and  this  bill  was  brought  to  compel  them 
to  join  in  it. 

The  defendants  demurred  generalh',  and  the  court  sustained  the 
demurrer ;  but  gave  the  plaintiff  leave  to  amend  his  bill. 

1  Ace. :  Gaussen  v.  Morton,  10  B.  &  C.  731  (1830) ;  Wheeler  v.  Slocomb,  16  PicL 
52  (1834) ;  American  Loan  and  Trust  Co.  v.  Billings,  58  Minn.  187  (1894J. 
See  Smart  v  Sandars,  5  C.  B.  895,  916-918  (1848).  — Ed. 


3KCT.  II.]  HUNT    V.    ROUSMANIER.  975 

The  amended  bill  stated,  that  it  was  express!}'  agreed  between  the 
parties  that  Rousmanier  was  to  give  specific  securit}-  on  the  "  Nereus  " 
and  "  Industr}-;"  and  that  he  offered  to  execute  a  mortgage  on  them  ; 
that  counsel  was  consulted  on  the  subject,  who  advised  that  a  power 
of  attorney,  such  as  was  actually'  executed,  should  be  taken  in  prefer- 
ence to  a  mortgage,  because  it  was  equally  valid  and  effectual  as  a 
security,  and  would  prevent  the  necessity  of  changing  the  papers  of 
the  vessels,  or  of  taking  possession  of  them  on  their  arrival  in  port. 
The  powers  were  accordingly  executed,  with  the  full  belief  that  they 
would,  and  with  the  intention  that  they  should,  give  the  plaintiff  as 
full  and  perfect  security  as  would  be  given  by  a  deed  of  mortgage. 
The  bill  prayed  that  the  defendant  might  be  decreed  to  join  in  a  sale  of 
the  interest  of  their  intestate  in  the  "  Nereus"  and  "  Industry,"  or  to 
sell  the  same  themselves,  and  pay  out  of  the  proceeds  the  debt  due  to 
the  plaintiff.  To  this  amended  bill,  also,  the  defendants  demurred, 
and  on  argument  the  demurrer  was  sustained  and  the  bill  dismissed. 
From  this  decree  the  plaintiff  appealed  to  this  court. 

J//-.  W/teaton,  for  the  appellant. 

J/r.  Hunter^  for  the  respondents. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  counsel  for  the  appellant  objects  to  the  decree  of  the  circuit 
court  on  two  grounds.     He  contends  : 

1.  That  this  power  of  attorney  does,  b}-  its  own  operation,  entitle 
the  plaintiff,  for  the  satisfaction  of  his  debt,  to  the  interest  of  Rous- 
manier in  the  "  Nereus  "  and  the  "  Industrv." 

2.  Or,  if  this  be  not  so,  that  a  Court  of  Chancerv  will,  the  convey- 
ance being  defective,  lend  its  aid  to  earr}-  the  contract  into  execution, 
according  to  the  intention  of  the  parties. 

We  will  consider,  1  :  The  effect  of  the  power  of  attorne}-. 

This  instrument  contains  no  words  of  conveyance  or  of  assignment, 
but  is  a  simple  power  to  .sell  and  conve}'.  As  the  power  of  one  man 
to  act  for  another  depends  on  the  will  and  license  of  that  other,  the 
power  ceases  when  the  will,  or  this  permission,  is  withdrawn.  The 
general  rule,  therefore,  is,  that  a  letter  of  attorney  m.iy,  at  any  time, 
be  revoked  by  the  party  who  makes  it ;  and  is  revoked  bj*  his  death. 
But  this  general  rule,  which  results  from  the  nature  of  the  act,  has 
sustained  some  modification.  Where  a  letter  of  attorney  forms  a  part 
of  a  contract,  and  is  a  securitv  for  money,  or  for  the  performance  of 
an}-  act  which  is  deemed  valuable,  it  is  generally  made  irrcA'Ocable  in 
terms,  or  if  not  so,  is  deemed  irrevocable  in  law.  2  P^sp.  N.  P.  Rep. 
565.  Although  a  letter  of  attorney  depends,  from  its  nature,  on  the 
will  of  the  person  making  it,  and  may,  in  general,  be  recalled  at  his 
will ;  3-et,  if  he  binds  himself  for  a  consideration,  in  terms,  or  bj-  the 
nature  of  his  contract,  not  to  change  his  will,  the  law  will  not  permit 
him  to  change  it.  Rousmanier,  therefore,  could  not,  during  his  life, 
b}'  an}'  act  of  his  own,  have  revoked  this  letter  of  attorney.  But  does 
it  retain  its  eflficacv  after  his  death?     We  think  it  does  not.     We  think 


976  HUNT    V.    ROUSMANIER.  [cHAP.  IX. 

it  well  settled  that  a  power  of  attorney,  though  irrevocable  during  the 
life  of  the  part}',  becomes  extinct  by  his  death. 

This  principle  is  asserted  in  Littleton  (Sect.  66),  by  Lord  Coke,  in 
his  commentary  on  that  section  (52  b.),  and  in  Willes'  Reports  (105, 
note,  and  565).  The  legal  reason  of  the  rule  is  a  plain  one.  It  seems 
founded  on  the  presumption  that  the  substitute  acts  by  virtue  of  the 
authority  of  his  principal,  existing  at  the  time  the  act  is  performed ; 
and  on  the  manner  in  which  he  must  execute  his  autliority,  as  stated 
in  Coombes'  case,  9  Co.  766.  In  that  case  it  was  resolved,  that 
"  when  any  one  has  authority  as  attorney  to  do  any  act,  he  ought  to  do 
it  in  his  name  who  gave  the  authority'. "  The  reason  of  this  resolution 
is  obvious.  The  title  can  regularly  pass  out  of  the  person  in  whom  it 
is  vested  only  b\"  a  conveyance  in  his  own  name  ;  and  this  cannot  be 
executed  b}-  another  for  him,  when  it  could  not  in  law  be  executed  by 
himself.  A  conveyance  in  the  name  of  a  person  who  was  dead  at  the 
time  would  be  manifest  absurdit}-. 

This  general  doctrine,  that  a  power  must  be  executed  in  the  name 
of  a  person  who  gives  it,  a  doctrine  founded  on  the  nature  of  the 
transaction,  is  most  usually  engrafted  in  the  power  itself.  Its  usual 
language  is,  that  the  substitute  shall  do  that  which  he  is  empowered  to 
do  in  the  name  of  his  principal.  He  is  put  in  the  place  and  stead  of 
his  principal,  and  is  to  act  in  his  name.  This  accustomed  form  is 
observed  in  the  instrument  under  consideration.  Hunt  is  constituted 
the  attorne}',  and  is  authorized  to  make  and  execute  a  regular  bill  of 
sale  in  the  name  of  Rousmanier.  Now,  as  an  authority  must  be  pur- 
sued, in  order  to  make  the  act  of  the  substitute  the  act  of  the  principal, 
it  is  necessary  that  this  bill  of  sale  should  be  in  the  name  of  Rous- 
manier ;  and  it  would  be  a  gross  absurdit}',  that  a  deed  should  purport 
to  be  executed  b\'  him,  even  b}^  attorne}',  after  his  death ;  for  the 
attorney  is  in  the  place  of  the  principal,  capable  of  doing  that  alone 
which  the  principal  might  do. 

This  general  rule,  that  a  power  ceases  with  the  life  of  the  person 
giving  it,  admits  of  one  exception.  If  a  power  be  coupled  with  an 
"interest,"  it  survives  the  pei'son  giving  it,  and  ma}'  be  executed  after 
his  death. 

As  this  proposition  is  laid  down  too  positively  in  the  books  to  be 
controverted,  it  becomes  necessary'  to  inquire  what  is  meant  by  the 
expression,  "  a  power  coupled  with  an  interest"?  Is  it  an  interest  in 
the  subject  on  which  the  power  is  to  be  exercised,  or  is  it  an  interest  in 
that  which  is  produced  b}'  the  exercise  of  the  power?  We  hold  it  to 
be  clear  that  the  interest  which  can  protect  a  power  after  the  death  of 
a  person  who  creates  it  must  be  an  interest  in  the  thing  itself.  In 
other  words,  the  power  must  be  engrafted  on  an  estate  in  the  thing. 

The  words  themselves  would  seem  to  import  this  meaning.  "  A 
power  coupled  with  an  interest  "  is  a  power  which  accompanies,  or  is  con- 
nected with,  an  interest.  The  power  and  the  interest  are  united  in  the 
same  person.  But  if  we  are  to  understand  bj' the  word  "  interest,"  an 
interest  in  that  which  is  to  be  produced  b}'  the  exercise  of  the  power. 


6EG1-.  11. J  HUNT   V.   ROUSMANIER.  977 

then  the3'  are  never  united.  The  power,  to  produce  the  interest,  must 
be  exercised,  and  by  its  exercise,  is  extinguished.  The  power  ceases 
when  the  interest  commences,  and,  therefore,  cannot,  in  accurate  law 
language,  be  said  to  be  "  coupled  "  with  it. 

But  the  substantial  basis  of  the  opinion  of  the  court  on  this  point 
is  found  in  the  legal  reason  of  the  principle.  The  interest  or  title  in  the 
thing,  being  vested  in  the  person  who  gives  the  power,  remains  in  him, 
unless  it  be  conveyed  with  the  power,  and  can  pass  out  of  him  onl}-  by 
a  regular  act  in  his  own  name.  The  act  of  the  substitute,  therefore, 
which,  in  such  a  case,  is  the  act  of  the  principal,  to  be  legally  effectual, 
must  be  in  his  name,  must  be  such  an  act  as  the  principal  himself 
would  be  capable  of  performing,  and  which  would  be  valid  if  performed 
by  him.  Such  a  power  necessarily  ceases  with  the  life  of  the  person 
making  it.  But  if  the  interest,  or  estate,  passes  with  the  power,  and 
vests  in  the  person  by  whom  the  power  is  to  be  exercised,  such  person 
acts  in  bis  own  name.  The  estate,  being  in  him,  passes  from  him 
by  a  conveyance  in  liis  own  name.  He  is  no  longer  a  substitute, 
acting  in  the  place  and  name  of  another,  but  is  a  principal  acting  in 
his  own  name,  in  pursuance  of  powers  which  limit  bis  estate.  The 
legal  reason  which  limits  a  power  to  the  life  of  the  person  giving  it 
exists  no  longer,  and  the  rule  ceases  with  the  reason  on  which  it  is 
founded.  The  intention  of  the  instrument  ma\-  be  effected  without 
violating  any  legal  principle. 

This  idea  may  be,  in  some  degree,  illustrated  by  examples  of  cases 
in  which  the  law  is  clear,  and  which  are  incompatible  with  any  other 
exposition  of  the  term  '*  power  coupled  with  an  interest."  If  the  word 
"interest"  thus  used,  indicated  a  title  to  the  proceeds  of  the  sale,  and 
not  a  title  to  the  thing  to  be  sold,  then  a  power  to  A  to  sell  for  his  own 
benefit  would  be  a  power  coupled  with  an  interest ;  but  a  power  to  A 
to  sell  for  the  benefit  of  B,  would  be  a  naked  power,  which  could  be 
executed  only  in  the  life  of  the  person  who  gave  it.  Yet,  for  this  dis- 
tinction, no  legal  reason  can  be  assigned.  Nor  is  there  any  reason  for 
it  in  justice  ;  for  a  power  to  A  to  sell  for  the  benefit  of  B  may  be  as 
much  a  part  of  the  contract  on  which  B  advances  his  money,  as  if  the 
power  had  been  made  to  himself.  If  this  were  the  true  exposition  of 
the  terra,  then  a  power  to  A  to  sell  for  the  use  of  B,  inserted  in  a, 
conveyance  to  A  of  the  thing  to  be  sold,  would  not  be  a  power 
coupled  with  an  interest,  and,  consequently,  could  not  be  exercised 
after  the  death  of  the  person  making  it ;  while  a  power  to  A  to  sell 
and  pay  a  debt  to  himself,  though  not  accompanied  with  any  conve}'- 
ance  which  might  vest  the  title  in  him,  would  enable  him  to  make  the 
conveyance,  and  to  pass  a  title  not  in  him,  even  after  the  vivifying 
principle  of  the  power  had  become  extinct.  But  every  day's  experi- 
ence teaches  us  that  the  law  is  not  as  the  first  case  put  would  suppose. 
We  know  that  a  power  to  A  to  sell  for  the  benefit  of  B,  engrafted  on 
an  estate  conveyed  to  A,  may  be  exercised  at  any  time,  and  is  not 
affected  by  the  death  of  the  person  who  created  it.      It  is,  then,  a 

62 


9.78  HUNT   V.   KOUSMANIER.  [CHAP.  IX. 

power  coupled  with  an  interest,  although  the  person  to  whom  it  is 
given  has  no  interest  in  its  exercise.  His  power  is  coupled  with  an 
interest  in  the  thing  which  enables  him  to  execute  it  in  his  own 
name,  and  is,  therefore,  not  dependent  on  the  life  of  the  person  who 
created  it. 

The  general  rule,  that  a  power  of  attorne}',  though  irrevocable  by 
the  party  during  his  life,  is  extinguished  by  his  death,  is  not  affected 
b}'  the  circumstance,  that  testamentary  powers  are  executed  after  the 
death  of  the  testator.  The  law,  in  allowing  a  testamentary  disposi- 
tion of  propert}',  not  only  permits  a  will  to  be  considered  as  a  convej'- 
ance,  but  gives  it  an  operation  which  is  not  allowed  to  deeds  which 
have  their  effect  during  the  life  of  the  person  who  executes  them.  An 
estate  given  by  will  maj-  take  effect  at  a  future  time  or  on  a  future 
contingency,  and,  in  the  mean  time,  descends  to  the  heir.  The  power 
is,  necessarily,  to  be  executed  after  the  death  of  the  person  who  makes 
it,  and  cannot  exist  during  his  life.  It  is  the  intention  that  it  shall  be 
executed  after  his  death.  The  conveyance  made  by  the  person  to 
whom  it  is  given  takes  effect  by  virtue  of  the  will,  and  the  purchaser 
holds  his  title  under  it.  Every  case  of  a  power  given  in  a  will  is  con- 
sidered in  a  court  of  chancery  as  a  trust  for  the  benefit  of  the  person 
for  whose  use  the  power  is  made,  and  as  a  devise  or  bequest  to  that 
person. 

It  is,  then,  deemed  perfectly  clear,  that  the  power  given  in  this  case, 
is  a  naked  power,  not  coupled  with  an  interest,  which,  though  irrevoca- 
ble by  Rousmanier  himself,  expired  on  his  death. 

It  remains  to  inquire  whether  the  appellant  is  entitled  to  the  aid  of 
this  court,  to  give  effect  to  the  intention  of  the  parties,  to  subject  the 
interest  of  Rousmanier  in  the  "  Nereus  "  and  "Industry"  to  the  pay- 
ment of  the  money  advanced  by  the  plaintiff  on  the  credit  of  those 
vessels,  the  instrument  taken  for  that  purpose  having  totall}'  failed  to 
effect  its  object. 

This  is  the  point  on  which  the  plaintiff  most  relies,  and  is  that  on 
which  the  court  has  felt  most  doubt.  That  the  parties  intended,  the 
one  to  give,  and  the  other  to  receive,  an  effective  security  on  the  two 
vessels  mentioned  in  the  bill,  is  admitted  ;  and  the  question  is,  whether 
the  law  of  this  court  will  enal)le  it  to  carry  this  intent  into  execution, 
when  the  instrument  relied  on  by  both  parties  has  failed  to  accomplish 
its  object.*  .  .  . 

In  this  case,  the  fact  of  mistake  is  placed  beyond  any  controversy. 
It  is  averred  in  the  bill,  and  admitted  by  the  demurrer,  that  "  the 
powers  of  attorney  were  given  by  the  said  Rousmanier,  and  received 
by  the  said  Hunt,  under  the  belief  that  they  were,  and  with  the  inten- 
tion that  they  should  create,  a  specific  lien  and  security  on  the  said 
vessels." 

We  find  no  case  which  we  think  precisely  in  point ;  and  are  unwill- 

^  Passages  discussing  this  question  have  been  omitted.  —  En. 


SECT.  II.j  KNAPP   V.   ALVORD.  979 

ing,  where  the  effect  of  the  instrument  is  acknowledged  to  have  been 
entirely  misunderstood  by  both  parties,  to  say  that  a  court  of  equity  is 
incapable  of  affording  relief. 

The  decree  of  the  Circuit  Court  is  reversed ;  but  as  this  is  a  case  in 
which  creditors  are  concerned,  the  court,  instead  of  giving  a  final 
decree  on  the  demurrer  in  favor  of  the  plaintiff,  directs  the  cause  to  be 
remanded,  that  the  Circuit  Court  may  permit  the  defendants  to  with- 
draw their  demurrer,  and  to  answer  the  bill.^ 


KNAPP    V.  ALVORD. 
Court  of  Chancery  of  New  York.     1843. 

[10  Paige,  205.] 

This  case  came  before  the  court  upon  exceptions  to  the  report  of 
a  master,  to  whom  it  was  referred  to  take  and  state  the  account  of  the 
defendant,  as  the  administratrix  of  W.  Alvord,  deceased,  and  to  re- 
port the  amount  due  to  the  complainant  and  to  the  other  creditors  of 
the  decedent.  And  the  onl}'  question  was  as  to  the  right  of  J.  Meads 
to  retain,  out  of  the  estate  of  the  decedent,  the  amount  of  two  notes 
upon  which  he  was  endorser ;  the  estate  of  the  decedent  being  insuffi- 
cient to  pa}'  all  his  debts.  The  master  decided  in  favor  of  the  right  of 
Meads  to  retain,  and  allowed  to  the  administratrix  the  amount  retained 
by  Meads  out  of  the  proceeds  of  the  property  of  the  decedent,  and 
which  had  been  so  retained  with  her  assent.  Rathbone  and  Smith, 
two  of  the  creditors  who  had  come  in  and  proved  their  debts  under  the 
decree.  Excepted  to  that  part  of  the  report.  The  facts  on  which  the 
question  arose  were  as  follows : 

The  decedent,  W.  Alvord,  for  some  time  previous  to  his  death,  car- 
ried on  the  business  of  a  cabinet  maker  in  the  city  of  Alban}'.  In  the 
fall  of  1837,  Alvord  being  in  bad  health,  Meads,  who  had  formerly  been 
his  copartner,  consented  to  assist  him  gratuitously  in  the  care  and  man- 
agement of  his  business.  In  the  latter  part  of  November  in  that  year, 
the  decedent  having  determined  to  spend  the  winter  at  the  south  on 

1  The  plaintiff  ultimately  failed.     See  Hunt  r.  Rousmanier,  1  Pet.  1  (1828). 

"  If  a  man  maketh  a  deed  of  feoffment  to  another,  and  a  letter  of  attorney  to  one 
to  deliver  to  him  seisin  by  force  of  the  same  deed ;  yet  if  livery  of  seisin  be  not 
executed  in  the  life  of  him  which  made  the  deed,  this  availeth  nothing,  for  that 
the  other  had  nought  to  have  the  tenements  according  to  the  purport  of  the  said 
deed,  before  livery  of  seisin  made ;  and  if  there  be  no  livery  of  seisin,  then  after  the 
decease  of  him  who  niiide  tlie  deed,  the  right  of  these  tenements  is  forthwith  in  his 
heire,  or  in  some  other."     Littleton's  Tenures,  sect.  66. 

In  Watson  v.  King,  4  Camp.  272  (181.5),  Lord  Ellenrorough,  charging  the  jury, 
said:  "A  power  coupled  with  an  interest  cannot  be  revoked  by  the  person  granting 
it  ;  but  it  is  necessarily  revoked  by  his  death.  How  can  a  valid  act  be  done  in  the 
name  of  a  dead  man  ?  "  —  Ed. 


980  KNAl'P   V.    ALVOKD.  [CHAP.  IX 

account  of  his  health,  applied  to  Meads  to  take  the  general  charge  of 
his  business  during  his  absence  ;  to  which  Meads  consented.  At  that 
time  a  note  of  $180U,  drawn  by  Alvord  and  endorsed  b}-  Whitney  and 
Van  Vechten,  as  his  sureties,  was  held  b}-  the  Mechanics  &  Farmers 
Bank,  and  was  payable  on  the  9th  of  December.  Alvord  also  owed 
another  note  to  II.  Rector,  for  $428.34,  endorsed  by  Meads,  and  which 
was  payable  on  the  12th  of  December,  1837.  To  provide  for  the  pa^-- 
ment  of  these  notes,  or  others  wliich  might  be  given  in  renewal  thereof, 
and  to  enable  Meads  the  better  to  manage  his  business  during  his  antic- 
ipated absence,  Alvord  executed  an  instrument,  bearing  date  the  22d 
of  November,  1837,  constituting  Meads  his  agent  and  attorney  to  carry 
on,  conduct,  and  manage  his  business  as  a  cabinet  maker  in  his  absence  ; 
to  purchase  and  procure' stock  and  materials;  to  hire,  pay,  and  dis- 
charge workmen  ;  to  collect  and  receive  moneys,  etc.,  and  to  appl}'  the 
same  in  his  said  business,  or  to  the  support  of  the  decedent's  family,  or 
to  the  payment  or  securit\'  of  his  debts  and  liabilities.  That  instru- 
ment or  power  also  contained  the  following  clause:  "And  I  hereby 
expressly  authorize  and  empower  the  said  Meads  to  sell,  assign,  trans- 
fer and  dispose  of,  at  an}^  time  or  in  an}'  manner  which  he  may  deem 
necessary  or  advisable,  all  or  an}'  furniture,  stock,  property,  notes, 
claims,  or  other  effects  whatsoever,  which  now  are  or  may  at  any  time 
be  in  his  hands,  belonging  to  me,  and  to  apply  the  same  and  the  pro- 
ceeds thereof  to  the  security  or  payment,  in  whole  or  in  part,  of  a 
certain  note  for  about  the  sum  of  $1800  drawn  by  me  and  endorsed  b}' 
S.  Whitney  and  J.  T.  B.  Van  Vechten,  and  discounted  at  the  Mechan- 
ics and  Farmers  Bank  ;  or  any  note  or  notes  which  may  be  given  in 
lieu  or  renewal  thereof  or  of  any  part  thereof;  and  to  the  payment  or 
securit}'  of  an}'  note  or  notes  drawn  by  me,  and  endorsed  or  which  may 
have  been  endorsed  by  the  said  Meads,  or  for  which  he  may  fcecome 
responsible."  The  day  after  the  execution  of  this  instrument  the  de- 
cedent attended  at  his  shop  and  delivered  over  his  account  books,  etc.  to 
Meads,  and  put  him  into  actual  possession  and  charge  of  the  shop  and 
business  and  the  property  therein ;  and  Meads  then  opened  or  caused 
to  be  opened  a  new  cash  book  in  the  presence  of  Alvord.  On  the  same 
day  Alvord  gave  to  Whitney,  one  of  the  endorsers  upon  the  $1800 
note,  a  mortgage  upon  the  furniture,  lumber,  and  stock  in  trade  of  the 
said  cabinet  maker's  business,  to  secure  him  as  the  endorser  of  that 
note  or  of  any  other  note  which  might  be  given  in  lieu  or  renewal  of 
it ;  which  mortgage  was  filed  in  the  clerk's  office  on  the  26th  of  Decem- 
ber thereafter,  Alvord  left  for  the  south  a  day  or  two  after  the  date  of 
these  instruments,  having  left  his  signatures  in  blank  with  Meads  to 
enable  him  to  renew  the  notes  if  necessary  ;  and  he  died  at  Savannah, 
in  Georgia,  on  the  18th  of  December,  1837. 

When  the  $1800  note  became  due,  on  the  9th  of  December,  Meads 
wrote  a  new  note  for  the  same  amount  over  one  of  the  blank  signatures, 
payable  in  ninety  days,  which  was  also  endorsed  by  Whitney  and  Van 
Vechten.  and  given  to  the  bank  in  renewal  of  the  note.     And  as  the 


cECT.  11.]  KNAPP   V.   ALVORD.  981 

bank  required  further  security,  Meads  put  his  name  upon  the  note  as 
a  subsequent  endorser.  On  the  12th  of  December,  when  the  note  of 
Rector  became  due,  Meads  filled  up  another  note  over  one  of  Alvord's 
blank  signatures,  and  endorsed  the  same  himself  and  gave  it  in  renewal 
of  the  old  note  ;  which  note  was  also  made  payable  in  ninety  dajs. 
Both  of  these  renewal  notes  were  dul}'  protested  for  non-payment,  and 
were  afterwards  taken  up  b}-  Meads  as  endorser.  After  the  death  of 
Alvord,  Meads  claimed  a  lien  upon  the  property  and  assets  of  the  cabi- 
net making  business,  in  his  hands,  for  all  responsibilities  which  he  had 
incurred,  as  endorser  upon  these  notes  or  otherwise  ;  and  he  continued 
in  the  possession  and  control  of  the  property,  with  the  assent  of  the 
administratrix,  until  April,  1838,  when  the  property  was  sold  at  auc- 
tion, under  his  direction,  and  with  her  assent.  The  amount  of  the  notes 
was  retained  by  iiim  out  of  the  proceeds  of  the  sale,  and  the  residue  of 
the  proceeds  was  accounted  for  to  the  administratrix. 

Ira  Harris,  for  the  creditors  Kathbone  and  Smith. 

S.  Stevens  and  0.  Mrads,  for  the  administratrix. 

The  Chancellor.  The  personal  mortgage  to  Whitney  not  being 
filed  till  after  the  death  of  Alvord,  and  not  being  accompanied  by  an 
immediate  deliver^'  and  continued  possession  of  the  propert3",  it  maj'  be 
doubted  whether  it  was  sufficient  to  give  Whitney,  who  was  liable  to 
Meads  as  the  last  endorser  of  the  note  of  $1800,  a  preference  in  pay- 
ment over  the  other  creditors  of  Alvord.  This  case,  however,  does 
not  turn  upon  that  question  ;  as  I  am  satisfied  that  an  equitable  lien 
upon  the  property  was  created  b^'  the  special  clause  in  the  power,  in 
reference  to  the  $1800  note  and  to  notes  drawn  b}'  Alvord  and  en- 
dorsed b}'  Meads.  And  as  that  instrument  was  accompanied  by  an 
actual  deliver}-  and  continued  change  of  possession  of  the  property, 
until  it  was  converted  into  mone^'  and  applied  in  payment  of  the  two 
several  notes,  it  was  not  necessar\'  that  the  instrument  which  created 
that  lien  should  be  recorded,  under  the  act  of  1833,  It  is  the  dut}'  of 
the  court  to  give  such  a  construction  to  the  language  of  a  written  in- 
strument as  to  cany  into  effect  the  intention  of  the  parties,  so  far  as 
that  intention  can  be  collected  from  the  whole  instrument  and  the  situa- 
tion of  the  parties  at  the  time  the  writing  was  executed.  And  I  think 
no  one  who  reads  this  special  clause,  in  connection  with  the  evidence, 
or  rather  the  admissions,  of  extrinsic  facts  which  are  proper  to  be  taken 
into  consideration,  can  believe  that  Alvord  did  not  intend  to  give  to 
the  endorsers  of  the  $1800  note,  and  to  Meads,  as  the  endorser  of  the 
Rector  note  and  other  notes  which  he  might  thereafter  endorse,  a  bene- 
ficial interest  in  the  execution  of  this  power,  for  their  securit}-  and 
indemnity.  It  clearly  shows  that  Alvord  anticipated  that  it  would 
probably  be  necessary  for  Meads  to  incur  further  responsibilit}'  as  his 
endorser,  in  the  discharge  of  the  duties  of  his  agency,  and  that  some- 
thing more  than  an  ordinar}'  power  of  attorne}^  was  necessary  to  pro- 
tect him  from  loss.  And  as  the  possession  of  the  property  was  delivered 
V)  Meads,  in  connection  with  this  power  to  dispose  of  it  for  the  se- 


982  KNAPP   V.   ALVORD.  [CHAP.  IX. 

curity  and  protection  of  himself  and  tlie  other  endorsers,  the  property 
must  be  considered  as  pledged  to  him  for  that  purpose.  The  power  to 
sell,  therefore,  was  coupled  with  an  interest  in  the  property  thus  pledged, 
and  survived.  Bergen  v.  Bennet,  1  Caines'  Cas.  in  Err.  1  ;  Raymond 
V.  Squire,  11  John.  Rep.  47.  In  the  case  decided  by  the  Supreme 
Court  of  the  United  States,  Hunt  v.  Rousmanier,  8  Wheat.  Rep.  174, 
there  was  no  actual  pledge  of  the  property.  But  a  mere  power  of 
attorney  was  executed  authorizing  the  plaintiff  to  transfer  it  in  the 
name  of  Rousmanier.  It  was  upon  that  ground,  as  I  understand  the 
case,  that  C.  J.  Marshall  held  that  the  power  was  not  coupled  with 
any  interest  in  the  vessels.  And  I  presume  his  opinion  upon  that  point 
would  have  been  different  if  the  power  had  been  accompanied  by  an 
actual  delivery  of  the  vessels  as  a  pledge  for  the  payment  of  the  debt. 
But  even  in  that  case  the  court  protected  the  rights  of  Hunt  as  an 
equitable  mortgagee  of  the  vessels  ;  though  the  decision  was  placed 
on  the  debatable  ground  that  a  party  may  be  relieved  in  equity  against 
a  mistake  of  law  merely. 

Being  satisfied  that  Meads  had  a  lien  upon  the  property  in  his  hands, 
and  a  right  to  retain  for  the  amount  of  these  notes,  under  the  special 
clause  in  the  written  power  executed  by  Alvord,  it  is  not  necessary  to 
inquire  whether  he  is  not  also  to  be  considered  as  the  factor  of  Alvord  ; 
so  as  to  entitle  him  to  retain  for  his  advances  and  liabilities,  entirely 
independent  of  this  special  provision  in  the  power  of  attorney  to  him. 
If  the  arrangement  between  Alvord  and  Meads  gave  to  the  latter  the 
character  of  a  factor,  there  can  be  no  doubt  as  to  his  lien  upon  the 
property  in  his  hands,  and  his  right  to  retain  for  all  his  advances  and 
responsibilities  in  the  business  with  which  he  was  intrusted  by  his 
principal.  Although  it  was  doubted,  previous  to  the  case  of  Kruger 
V.  Wilcox,  Amb.  Rep.  252,  it  is  now  well  settled  that  a  factor  has  a 
lien  and  may  retain  for  a  general  balance  ;  including  responsibilities 
incurred  in  the  execution  of  his  agenc}".  Whit,  on  Lien,  103  ;  2  Kent's 
Com.  640;  Story  on  Agenc}',  34,  §  34.  And  the  case  of  Foxcraft  v. 
Wood,  4  Russ.  Rep.  487,  was  probably  decided  upon  the  ground  that 
the  arrangement  under  which  the  business  at  Birmingham  was  carried 
on  constituted  Foxcraft  the  factor  of  Lanning,  although  he  received 
a  fixed  salary  instead  of  the  usual  mercantile  commissions  for  his 
services. 

The  decision  of  the  master  was  right  in  allowing  to  the  administra- 
trix the  amount  retained  by  Meads  for  the  two  notes. 

The  exceptions  are  therefore  overruled  with  costs,   and  the 
report  of  the  inaster  is  confirmed. 


SECT.  11.]  BLACKSTONE   V.   BUTTEiiMOEE.  983 


KINDIG   V.   MARCH. 
Supreme  Coukt  of  Indiana.     1860. 

[15  Ind.  248.] 

Appeal  from  the  Elkhart  Common  Pleas. 

Peukins,  J.  Kindig  gave  a  power  of  attorney-  to  Chamberlain,  to 
confess  a  judgment  in  favor  of  March,  for  a  debt  due  to  him. 

The  power  was  duly  executed  and  proved.  We  are  satisfied  of  this 
from  an  examination  of  the  record. 

When  judgment  was  about  to  be  entered  in  execution  of  the  power, 
Kindig  presented  to  the  court  a  revocation  of  it,  on  the  ground  that  it 
was  for  too  large  an  amount.  The  court  disregarded  the  revocation, 
and  di'ected  the  judgment  to  be  entered. 

A  power  of  attorney  to  confess  judgment  is  not  revocable  b}'  act  of 
the  party.  See  Story  on  Agency,  §  477  ;  2  Archbold's  Pr.  p.  21.  But 
if  any  fact  affecting  its  validity  be  alleged,  the  court  will  permit  an 
issue  to  be  formed  and  tried,  and  act  in  the  premises  accordingl}-, 
annulling  the  warrant  or  reducing  the  amount  of  judgment  upon  it,  as 
the  case  proved  may  require.  In  this  case  the  defendant  may  yet 
have  the  judgment  corrected,  on  complaint  filed  and  heard,  as  in  other 
cases.     Archbold,  supra ;  15  Petersdorf,  pp.  3GG,  367,  368. 

Per  Curiam.     The  appeal  is  dismissed,  with  costs. 

R.  Heath,  for  appellant. 

E.  M.  Chamberlain,  for  appellee. 


BLACKSTONE   v.   BUTTERMORE. 
Supreme  Court  of  Pennsylvania.     1867. 

[53  Pa.  266.] 

Error  to  the  Court  of  Common  Pleas  of  Fayette  County. 

This  was  an  action  of  ejectment,  by  Heniy  Blackstone  against  George 
fiuttermore,  for  a  tract  of  land  in  Fayette  Count}'. 

The  foundation  of  Blackstone's  claim  was  as  follows  :  — 

Buttermore,  being  the  owner  of  the  land  in  controvers}',  on  the  15th 
da}'  of  February,  1864,  gave  a  power  of  attorne}'  to  Daniel  R.  David- 
eon  to  sell  it  for  $25,000,  on  terms  mentioned  in  the  power,  which 
concludes,  "  and  I  hereby  ratify  and  confirm  whatever  contract  he  may 
make  in  accordance  with  the  above  authority,  and  hereby  bind  myself 
for  its  execution.  This  authority  is  irrevocable  before  the  1st  day  of 
May  next.' 


984  BLACKSTONE   V.   BUTTERMORE.  [CHAP.  IX. 

Davidson,  as  attorney  of  Buttermore,  on  the  19th  day  of  April, 
1864,  entered  into  an  article  of  agreement  witli  Hlackstone  for  the  sale 
of  the  land,  wliich  Buttermore  refused  to  carry  out.  There  was  evi- 
dence that  Buttermore  had  revoked  the  power  of  attorney  and  Black- 
stone  had  notice  of  the  revocation  before  he  entered  into  the  article 
with  Davidson. 

The  court  (Sterrett,  P.  J.)  charged  :  — 

"  It  is  claimed  by  the  plaintiff's  counsel  that  the  power  of  attorney 
to  D.  R.  Davidson,  being  in  terms  '  irrevocable,'  &c.,  could  not  be  re- 
voked by  the  defendant  Buttermore ;  and  more  especially  so,  when 
taken  in  connection  with  the  testimony  as  to  the  compensation  which 
Davidson  was  to  receive  for  selling  the  land. 

"We  cannot  so  instruct  you.  On  the  contrary  we  are  of  opinion 
that  there  is  nothing  in  the  power  of  attorney  itself,  or  in  the  other  evi- 
dence, or  in  both  considered  together,  that  could  prevent  Buttermore 
from  revoking  the  power  to  sell  the  land.  And,  if  you  find  that  he 
did  revoke  the  power  of  attornej'  and  that  the  plaintiff  Blackstone  had 
notice  of  the  revocation  before  he  entered  into  the  articles  of  agree- 
ment for  the  purchase  of  the  land,  your  verdict  should  be  for  the 
defendant." 

The  verdict  was  for  the  defendant,  and  the  charge  of  the  court  was 
assigned  for  error. 

A.  Patterson,  for  plaintiff  in  error. 

D.  Kaine  and  C.  E.  Boyle,  for  defendant  in  error. 

Agnew,  J.^  a  power  of  attorney  constituting  a  mere  agency  is 
alwavs  revocable.  It  is  only  when  coupled  with  an  interest  in  the 
thing  itself  or  the  estate  which  is  the  subject  of  the  power,  it  is  deemed 
to  be  irrevocable,  as  where  it  is  a  security  for  money  advanced  or  is  to 
be  used  as  a  means  of  effectuating  a  purpose  necessary  to  protect  the 
rights  of  the  agent  or  others.  A  mere  power  like  a  will  is  in  its  very 
nature  revocable  when  it  concerns  the  interest  of  the  principal  alone, 
and  in  such  case  even  an  express  declaration  of  irrevocability  will  not 
prevent  revocation.  An  interest  in  the  proceeds  to  arise  as  mere  com- 
pensation for  the  service  of  executing  the  power  will  not  make  the 
power  irrevocable.  Therefore  it  has  been  held  that  a  mere  employ- 
ment to  transact  the  business  of  the  principal  is  not  irrevocable  without 
an  express  covenant  founded  on  sufficient  consideration,  notwithstand- 
ing the  compensation  of  the  agent  is  to  result  from  the  business  to  be 
performed  and  to  be  measured  I)}-  its  extent:  Coffin  v.  Landis,  10 
Wright,  4  26.  In  order  to  make  an  agreement  for  irrevocability  con- 
tained in  a  power  to  transact  business  for  the  benefit  of  the  principal 
binding  on  him,  there  must  be  a  consideration  for  it  independent  of  the 
compensation  to  be  rendered  for  the  services  to  be  performed.  In  this 
case  the  object  of  the  principal  was  to  make  a  sale  solely  for  his  own 
benefit.     The  agreement  to  give  his  agent  a  certain  sum  and  a  portion 

1  After  citing  Hartley  and  Minor's  Appeal,  53  Pa.  212  (1866).  —  Ed. 


SECT.  II.]  BLACKSTONE    V.    BUTTERMORE.  985 

of  the  proceeds,  was  merely  to  carry  out  his  purpose  to  sell.  But  what 
obligation  was  there  upon  him  to  sell,  or  what  other  interest  beside  his 
own  was  to  be  secured  by  the  sale?  Surely  his  determination  to  sell 
for  his  own  ends  alone  was  revocable.  If  the  reasons  for  making  a 
sale  had  ceased  to  exist,  or  he  should  find  a  sale  injurious  to  his  inter- 
ests, who  had  a  right  to  say  he  should  not  change  his  mind?  The 
interest  of  the  agent  was  only  in  his  compensation  for  selling,  and 
without  a  sale  this  is  not  earned.  A  revocation  could  not  injure  him. 
If  he  had  expended  money,  time,  or  labor,  or  all,  upon  the  business 
intrusted  to  him,  the  power  itself  was  a  request  to  do  so,  and  on  a  revo- 
cation would  leave  the  principal  liable  to  him  on  his  implied  assump- 
sit. But  it  would  be  the  height  of  injustice  if  the  power  should  be  held 
to  be  irrevocable  merely  to  secure  the  agent  for  his  outlay  or  his  ser- 
vices rendered  before  a  sale.  The  following  authorities  are  referred  to : 
Hunt  V.  Rousmanier,  8  Wheat.  174;  Story  on  Agency,  §§  463,  464, 
465,  468,  476,  477;  Paley  on  Agency-,  155;  1  Parsons  on  Contracts, 
59  ;  Irwin  v.  Workman,  3  Watts,  357 ;  Smyth  v.  Craig,  3  W.  &  S.  20. 

The  judgment  is  therefore  affirmed.^ 

1  Ace. :  Walker  v.  Denison,  86   111.  142  (1877) ;  Chambers  v.  Seay,  73  Ala.  372 
(1882).  — Ed. 


986  SERLE  DE  LANLARAZON's  CASE.         [CHAP.  X. 


CHAPTER  X. 

RATIFICATION. 


SECTION    I. 
Early  Authorities. 

SERLE  DE  LANLARAZON'S   CASE. 

Nisi  Prius.     1302. 

[Y.  B.  30  Ed.  I.  {Rolls  Series),  126.] 

The  Dean  and  Chapter  of  Exeter  brought  an  assise  of  novel  disseisin 
against  Serle  de  Lanlarazon,  and  complained  that  they  were  disseised 
of  a  hundred  shillings  of  rent  in  N.  Serle  and  the  others  came  not, 
and  the  assise  was  awarded  by  reason  of  their  default.  The  Assise 
being  sworn,  said  that  Serle  and  the  Dean  had  made  an  exchange  of 
certain  tenements,  and  that  Serle  had  charged  the  tenements  which 
the  Dean  had  put  in  his  view,  with  a  hundred  shillings  j'early,  and  had 
granted  that  whenever  the  rent  should  be  in  arrear  the  Dean  should  be 
at  liberty  to  distrain  ;  that  the  Dean  came  within  the  period  of  sum- 
mons of  the  Eyre  and  distrained  for  the  rent,  and  that  all  those  named 
in  the  writ,  except  Serle  and  two  others,  rescued,  &c.  Brumpton,  [J.]. 
Was  he  assenting  in  any  manner  to  the  rescue  which  the  others  made? 
The  Assise.  The  Dean  and  Chapter  and  Serle  appointed  a  day  for  a 
compromise,  but  could  not  agree  ;  and  so  it  seems  that  he  was  assent- 
ing to  the  rescue.  Brumpton  [J.].  Inasmuch  as  the  rescue  was  made 
in  Serle's  name,  and  he  assented  to  the  act,  we  consider  him  as  a 
principal  disseisor.  (The  reason  is,  as  Brumpton  [J.]  then  said,  quia 
ratihabitio  retro  trahitur  et  mandato  comparatur.)  And  so  the  Court 
adjudges  that  the  Dean  do  recover  his  seisin  and  his  arrears  (amounting 
to  so  much),  and  his  damages  of  a  hundred  shillings  ;  and  that  Serle 
and  the  others  be  taken,  &c.,  and  that  the  Dean,  &c.,  be  in  mercy  for 
their  false  plaint  in  respect  of  the  two  others.* 

^  In  the  Digest,  lib.  4.3,  tit.  16,  ].  1,  §  14,  Ulpian  speaks  of  Sabinus  and  Cassius, 
"  qui  rati  habitiouera  mandato  comparaiit,"  and  says  "  rectius  enim  dicitur.  in  maleficio 


SECT,  l]  anonymous.  987 


ANONYMOUS. 

Nisi  Fuius.     1405-6. 
[Y.B.7H.  IV.  34, pi.  1.] 

An  inquest  was  charged  between  two  parties  on  a  writ  of  trespass 
of  certain  cattle  taken  against  tlie  peace,  in  wliicli  the  defendant  had 
justified  as  bailiff  for  services  arrear  to  his  lord ;  whereas  the  plaintiff 
said  that  he  was  not  bailiff  of  his  lord  at  the  time  of  the  taking.  And 
the  plaintiff  said  in  evidence,  that  the  defendant  took  the  beasts  claim- 
ing heriot  for  himself,  so  that  he  could  not  at  that  time  be  bailiff  to 
another.  And  after  their  charge,  Gascoigne  [C.  J.]  said  to  them,  that 
if  the  defendant  took  them  claiming  property-  in  himself  by  way  of 
heriot,  although  the  lord  afterwards  agreed  to  that  taking  for  the 
services  due  to  him,  still  he  could  not  be  said  to  be  his  bailiff  for  that 
time.  But  if,  without  command,  he  bad  taken  (the  cattle)  for  services 
due  to  the  lord,  and  the  lord  had  afterwards  agreed  to  the  taking,  he 
should  be  adjudged  as  bailiff,  although  he  was  not  his  bailiff  in  any 
place  before  the  taking,  Qftod  nota} 


ANONYMOUS. 

Common  Pleas.     1586. 

[Godbolt,  109,  pi.  129.] 

In  trespass,  the  defendant  did  justify  as  bailiff  unto  another.  The 
plaintiff  replied  that  he  took  his  cattle  of  his  own  wrong,  without  that 

ratihabitionem  mandato  comparari."  Again,  in  lib.  46,  tit.  3, 1.  1 2,  §  4,  Ulpian  says : 
"Rati  enim  habitio  mandato  comparatur."     And  see  Story  on  Agency,  §  239. 

In  Bracton  de  Legibus,  f.  171  b  ,  it  is  said:  "  Ratihabitio  in  hoc  casu  comparatur 
mandato."' 

Among  the  rules  appended  to  the  Sext  are  these:  "IX.  Eatum  quis  habere  noa 
pote.st  quod  ipsius  nomine  nou  est  gestum.  X.  Ratihabitionem  retrotrahi,  et  mandato 
non  est  dubium  comparari.  .  .  .  XXI.  Quod  semel  placuit  amplius  displicere  non 
potest.  .  .  .  XXXIII.  INIutare  consilium  quis  nou  potest  in  alterius  detrimentum.  .  .  . 
XLin.  Qui  tacet,  consentire  videtur.  XLIV.  Is,  qui  tacet,  non  fatetur ;  sed  nee  utique 
negare  videtnr.  .  .  .  LV.  Qui  sentit  onus,  sentire  debet  commodum,  et  e  contra.  .  .  . 
LXXVII.  Rationi  congruit,  ut  succedat  in  onere,  qui  substituitur  in  honore."  Sexti 
Decretalium,  lib.  v.  tit.  xii.,  De  regulis  juris.     See  ante  p.  1,  n.  1. 

In  Co.  Lit.  207  a,  it  is  said:  "Omnis  ratihabitio  retro  trahitur  et  mandato 
aequiparatur."  —  Er>. 

1  Reprinted  from  6  M.  &  G.  239,  note  (a),  where  the  reporters  say:  "  With  respect 
to  the  last  part  of  the  Chief  .lustice's  .statement,  it  is,  however,  observable  that  Lord 
Brooke,  after  abridging  or  rather  transcribing  this  case,  adds,*  Quod  qufetr  inde.  for 
if  he  was  once  a  trespasser  witliout  authority,  tlie  agreement  cannot  help  him,  for 
an  action  was  vested  before.'  Bro.  Trespass,  pi.  86.  In  T.  22  E.  IV.  Fitz.  Bayllye, 
pi.  4,  a  distinction  is  taken  between  a  person  acting  as  bailiff  and  a  person  acting  as 
servant,  a  precedent  authority  being  said  to  be  necessary  for  the  latter,  tiiough  not  for 
the  former.     Vide  Chambers  v.  Donaldson,  11  East,  65."  —  Ed. 


988  LORD    AUDLEY   V.    POLLARD.  [CHAP.  X. 

that  he  was  his  bailiff.  Anderson,  C.  J.  If  one  have  2a'jse  to  distrain 
my  goods,  and  a  slranger  of  his  own  wrong,  without  any  warrant  or 
authority  given  him  by  the  other,  take  my  goods  not  as  bailiff  or  serv- 
ant to  the  other,  and  I  bring  an  action  of  trespass  against  him  ;  can 
he  excuse  himself  by  saying  that  he  did  it  as  my  bailiff  or  servant  ? 
Can  he  so  father  his  misdemeanors  upon  another?  He  cannot;  for 
once  he  was  a  trespasser,  and  his  intent  was  manifest.  But  if  one  dis- 
train as  bailiff,  although  in  truth  he  is  not  bailiff,  if  after,  he  in  whose 
right  he  doth  it  doth  assent  to  it,  he  shall  not  be  punished  as  a  tres- 
passer, for  that  assent  shall  have  relation  unto  the  time  of  the  distress 
taken  ;  and  so  is  the  book  of  7  Hen.  IV,  And  all  that  was  agreed  by 
Pekiam  [J.].  Shuftleicorth.  What  if  he  distrained  generally,  not 
showing  his  intent,  nor  the  cause  wherefore  he  distrained?  &c.  Ad 
hoc  non  fait  responsum.  Rodes  [J.],  came  to  Andekson  [C.  J.],  and 
said  unto  him.  If  I,  having  cause  to  distrain,  come  to  the  land  and  dis- 
train, and  another  ask  the  cause  whj'  I  do  so  ;  if  I  assign  a  cause  not 
true  or  insufficient,  yet  when  an  action  is  brought  against  me,  I  may 
avow  or  justify,  and  assign  any  other  cause.  Anderson  [J.].  That  is 
another  case ;  but  in  the  principal  case  clearly  the  taking  is  not  good ; 
to  which  Rodes  [J.]  agreed. 


LORD  AUDLEY  v.  POLLARD. 
Queen's  Bench.     1597. 

\Cro.  Ellz.  561.] 

Ejectione  Firm^.  —  It  was  held  by  all  the  justices,  that  where  a 
fine  was  levied  with  proclamation,  and  a  friend  of  him  who  had  the 
right  entered  to  his  use,  to  avoid  this  fine  without  his  appointment,  and 
the  conusee  re-entered,  and  the  five  years  passed,  that  this  fine  is  not 
avoided,  but  shall  bind  ;  for  b}'  the  express  words  of  the  4  Hen.  VII. 
c.  24,  a  fine  shall  bind,  unless  it  be  avoided  b^'  entry,  claim,  or  action 
of  him  who  hath  right  thereto,  within  the  five  3'ears ;  and  it  is  not 
sufficient  for  a  stranger  to  enter,  unless  it  be  by  his  command  who  hath 
the  right.  But  Gavtdy  said,  that  the  agreement  peradventure  of  him 
who  had  the  right,  within  the  five  years  after  such  an  entry  made  in 
his  name,  would  serve ;  but  an  agreement  afterwards  would  not  serve. 
Quaere.  —  Note.  Popham  said,  that  he  demanded  the  opinion  of  all  the 
justices  in  Serjeants-Inn  about  the  principal  case,  and  they  were  of  the 
same  opinion. 


S£CT.  IL]  smith   V.   COLOGAN.  989 

SECTION  IL 

The  Requisites  of  Ratification, 

SMITH  AND  OTHERS  V.  COLOGAN  and  others. 

Nisi  Prius.     1787. 

[2  T.R.  188  n.  (a).] 

This  was  an  action  on  the  case  for  neglecting  to  make  an  insurance 
on  goods.  The  question  was,  whether  the  defendants  had  done  their 
duty  properly  in  the  manner  in  wliich  the  insurance  had  been  procured? 
BuLLER,  J.  The  foundation  of  this  action  is  negligence  in  the  defend- 
ants, by  which  the  plaintiffs  have  been  injured.  The  defendants  were 
the  correspondents  of  the  plaintiffs.  As  to  the  orders  for  insurance  hav 
ing  been  received  and  accepted,  there  is  no  doubt.  The  only  question 
is,  whether  the  defendants  have  been  guilt3-  of  negligence  at  any  period 
of  time  which  will  make  them  liable?  The  defendants  received  the 
orders  in  1782,  and  they  sent  Anderson,  their  broker,  to  Llo3-d's  Coffee- 
bouse,  to  get  the  insurance  effected,  but  he  could  not  get  it  done  from 
five  to  six  guineas,  which  was  the  premium  which  he  offered.  This  was 
not  because  the  premium  offered  was  too  low  for  such  a  risk,  but  be- 
cause the  underwriters  would  not  engage  in  the  risk  at  all,  on  account 
of  the  ship's  not  being  registered  at  Lloj-d's.  Now  if  the  defendants, 
who  lived  in  London,  had  gone  no  further,  and  done  nothing  else,  it 
might  have  been  a  considerable  doubt  whether  they  would  have  been 
liable  ;  for  if  a  person  to  whom  such  orders  are  sent  do  what  is  usual  to 
get  the  insurance  made,  that  is  sufficient,  because  he  is  no  insurer,  and 
is  not  obliged  to  get  insurance  at  all  events.  But  whether,  b}'  usage,  it 
were  incumbent  on  the  defendants  in  this  case  to  apph-  to  the  public 
offices,  is  not  material  to  be  considered,  because  they  went  further,  and 
the  plaintiffs  have  adopted  their  acts.  The  next  step  they  took  (as  it  was 
now  a  forlorn  hope)  was  to  write  to  G.  K.  and  Co.  who  were  the  ship- 
owners, living  at  Newcastle,  thinking  them  the  most  likely  persons  to 
be  able  to  get  the  insurance  done  ;  which  the}'  accordinglj-  did  on  the 
5th  of  October,  1 782.  So  far  from  being  to  blame  in  this,  the  defendants 
acted  very  meritoriously.  When  the  loss  was  known,  the}"  endeavored 
to  get  the  policy  out  of  the  hands  of  G.  K.  and  Co.  and  they  applied 
repeatedly,  but  could  not  succeed ;  no  diligence  was  wanting  on  their 
parts  ;  but  the  answer  was,  that  G.  K.  and  Co.  had  other  sums  to  re- 
cover upon  the  same  policy,  and  therefore  could  not  let  it  out  of  their 
hands.  Fresh  application  was  made  in  1782,  to  which  G.  K.  and  Co. 
sent  an  answer,  which  is  indeed  an  evasive  one ;  but  the  defendants 
had  no  means  of  obliging  them  to  give  it  up,  but  by  bringing  an  action, 
and  it  can  hardly  be  said  that  not  doing  so  is  negligence  in  them.  If  the 
defendants  had  made  a  blunder  in  the   insurance  which  would  have 


990  MILLIKEN    V.    COOMBS.  fCHAP.  X. 

avoided  the  policy,  tliat  would  have  been  negligence  ;  but  the  policy  is 
a  good  one ;  and  it  was  only  owing  to  the  knaveiy  and  failure  of  G.  K. 
and  Co.  that  the  plaintilTs  have  lost  the  benefit  of  it,  for  the  under- 
writers have  actually  paid  the  loss  to  G.  K.  and  Co.  In  the  midst  of 
these  transactions,  one  of  the  plaintiffs  came  home  ;  all  the  business 
was  laid  before  him  bj'  the  defendants  ;  he  approved  of  their  conduct ; 
he  took  up  the  affair,  and  considered  Anderson  as  his  agent.  Now  if, 
with  a  knowledge  of  all  the  circumstances,  he  adopted  the  defendant's 
acts  for  a  moment,  he  ought  to  be  bound  by  them.  If  he  had  intended 
to  insist  on  his  right  to  recover  the  money  from  the  defendants,  he 
should  never  have  looked  to  others  at  all.  But  afterwards,  when  G.  K. 
and  Co.  were  likely  to  fail,  then  he  considers  the  defendants  as  his 
debtors.^  Verdict  for'  the  defendants. 


MILLIKEN  AND  OTHERS  V.  COOMBS  and  others. 

Supreme  Court  op  Maine.     1821. 

[1  Me.  343.] 

Debt  on  an  arbitration  bond,  dated  March  1,  1815.  There  were 
several  issues  in  the  case,  among  which  was  that  of  non  est  factum. 

To  prove  this  issue  on  their  part  the  plaintiffs  produced  the  bond 
declared  on,  which  appeared  to  be  executed  by  James  D.  Wheaton  as 
the  agent  and  attorney  of  the  defendants,  and  to  be  made  in  virtue  of 
a  power  given  by  the  defendants  to  the  attorne\',  dated  January  9, 
1815.  To  prove  the  attorney's  authority,  the  plaintiffs  gave  in  evi- 
dence a  written  power  of  attorney  from  the  defendants  to  Wheaton, 
under  seal,  dated  February  1,  1815,  but  which,  it  appeared,  was  exe- 
cuted on  or  about  March  16,  1815. 

It  further  appeared  that  the  arbitrators,  after  having  given  due  no- 
tice, met  and  fully  heard  the  parties,  April  19,  1815,  on  which  day  the}' 
made  and  published  their  award.  Several  of  the  defendants  were 
present  before  the  arbitrators  at  the  trial,  and  they  all  appeared  by 
their  agent,  regularly  constituted,  who  managed  the  cause  on  their 
part,  but  no  objection  was  made  b}'^  an}-  person  to  the  authority  of 
Wheaton  to  enter  into  the  submission  in  behalf  of  the  defendants. 

The  counsel  for  the  defendants  objected  to  this  evidence  as  insuffi- 
cient to  support  the  bond  as  their  deed  ;  and  in  suppoi't  of  this  objec- 
tion, they  gave  in  evidence  a  written  power  of  attornej',  under  seal, 
from  eight  of  the  defendants  to  Wheaton,  dated  January  9,  1815,  in 
which  all  the  defendants'  names  were  recited,  but  four  of  them  never 
executed  it.  This  power  embraced  the  same  subject-matter  as  the 
power  dated  Februar}'  1. 

1  Ace:  Jones  v.  Atkinson,  68  Ala.  167  (1880). — Ed. 


SECT.  II.]  MILLIKEN   V.    COOMBS.  991 

The  judge  overruled  this  objection,  and  thereupon  a  verdict  was  re- 
turned for  the  plaintiffs,  subject  to  the  opinion  of  the  whole  court  upott 
the  facts  above  stated. 

Orr  and  Thayer,  for  the  defendants. 

Greenleaf  andi   Wheeler^  for  the  plaintiffs. 

Weston,  J.  The  only  question  in  this  case  arises  from  the  objec- 
tion made  to  the  sufficienc}'  of  the  power  of  attorney  under  tlie  author- 
ity of  which  the  arbitration  bond  was  executed.  It  is  urged  that  the 
power  recited  in  the  bond  being  described  as  bearing  date  January  9, 
1815,  that  which  was  produced  in  evidence  b3'  the  plaintiffs,  bearing 
date  February  1,  1815,  can  have  no  tendency  to  give  effect  to  the 
bond.^  .  .  . 

It  is  further  contended  that  the  power  relied  upon,  not  having  been 
executed  until  after  the  date  and  delivery  of  the  bond,  can  give  no 
validity  to  that  instrument.  The  power  was  executed  prior  to  the 
meeting  of  the  arbitrators,  and  there  can  be  no  doubt  that  it  was  ante- 
dated that  it  miglit  appear  as  a  subsisting  power  at  the  time  of  the  ex- 
ecution of  tlie  bond,  and  that  the  principals  might  thereby  be  concluded 
from  questioning  the  authority  of  their  attornej-.  In  this  point  of  view 
the  date  becomes  material,  and  must  have  been  so  considered  by  the 
parties.  The  defendants  are  therefore  estopped  by  their  deed  to  aver, 
or  to  prove,  that  it  was  in  fact  executed  at  a  subsequent  period.  In 
the  case  of  Cady  v.  Eggleston  et  al.,  11  Mass.  282,  cited  bj-  the  counsel 
for  the  plaintiffs,  which  was  debt  upon  a  replevin  bond  which  bore  date 
at  the  time  of  the  service  of  the  writ,  but  was  not  in  fact  executed  by 
Eggleston,  the  principal,  until  after  the  entrj'  of  the  replevin  suit, 
Parker,  C.  J.,  in  delivering  the  opinion  of  the  court,  observes,  speak- 
ing of  the  bond  executed  by  Eggleston,  the  principal :  "  He  is  estopped 
to  say  that  it  was  made  on  a  day  different  from  its  date,  and  must  be 
considered  as  having  given  force  and  effect  to  it  on  the  da}-  of  the  ser- 
vice of  the  writ  of  replevin."  The  analogy  in  this  particular  between 
the  case  cited  and  the  case  at  bar  is  very  striking. 

But  if  the  defendants  are  not  estopped  from  showing  the  true  time  of 
the  execution  of  their  power,  it  may  well  be  considered  a  confirmation 
of  the  authority'  assumed  hy  their  attorney,  —  it  being  very  apparent 
that  the  power  was  antedated  that  it  might  have  that  effect.  That  a 
subsequent  assent  is  tantamount  to  a  precedent  authority  is  a  familiar 
and  well  settled  principle  as  to  all  acts  done  for  another  in  which  a 
parol  power  only  is  necessary-.  There  seems  to  be  no  good  reason  why 
the  same  principle  should  not  be  extended  to  cases  in  which  an  author- 
ity, under  seal,  is  essential,  provided  the  subsequent  assent  or  recogni- 
tion be  proved  by  an  instrument  of  equal  solemnity,  and  provided,  as  in 
this  case,  it  be  dated  back  to  a  period  anterior  to  the  execution  of  the 
deed  or  obligation  it  is  intended  to  ratify-. 

The  defendants  having  first  authorized  their  attorney  to  submit  the 

^  Passages  dealing  with  this  contention  have  been  omitted. —  Ei). 


992  STETSON  V.    PATTEN.  [CHAP.  X. 

matters  in  controversy  between  the  parties  to  arbitration,  with  a  full 
knowledge  that  this  had  been  done,  were  present,  either  in  person  or 
by  their  agent,  at  the  hearing  before  the  arbitrators,  managing  and 
conducting  the  business,  and  maliing  no  objection  to  their  authority. 
Had  the  result  been  in  their  favor,  the  plaintiffs  must  have  been  bound 
by  it;  and  we  can  discern  no  reason,  either  in  law  or  equity,  why  the 
defendants  should  not  be  equally  bound. 

Judgment  must  therefore  be  entered  upon  the  verdict. 


STETSON   V.   PATTEN   et  al. 
Supreme  Court  of  Maine.     1823. 

[2  Me.  358.] 

This  was  an  action  of  covenant  upon  an  agreement  under  seal, 
signed  by  the  defendants,  and  by  "  Simeon  Stetson  for  Amasa  Stetson," 
the  plaintiff,  b}'  which  the  defendants  agreed  to  enter  upon  certain 
unimproved  lands  of  the  plaintiff  in  the  plantation  of  Stetson  in  this 
county,  and  make  two  farms  thereof,  and  pay  certain  moneys  to  the 
plaintiff  with  interest  annuallj' ;  in  consideration  whereof  the  plaintiff 
was  to  make,  execute,  and  deliver  to  them  a  sufficient  warranty  deed 
of  the  same  lots.  In  the  instrument  declared  on,  the  said  Simeon  was 
not  named  except  in  the  signature  as  above,  but  the  covenants  were 
wholl}-  in  the  name  of  the  plaintiff. 

In  a  case  stated  by  the  parties,  it  was  agreed  that  said  Simeon  had 
not  any  authorit}'  under  the  hand  and  seal  of  the  plaintiff  to  sign  and 
seal  the  instrument  declared  on,  but  that,  living  in  the  vicinity  of  the 
plaintiff's  lands  in  this  countyj  he  had  been  requested  by  the  plaintiff, 
who  is  his  brother,  to  superintend  and  manage  his  interests  relative  to 
said  estate ;  and  that  pursuant  to  this  request  he  made  and  executed 
the  deed  declared  on,  in  behalf  of  the  plaintiff,  who  resides  in  Massa- 
chusetts, and  which  he  afterwards  delivered  to  the  plaintiff.  It  was 
further  agreed  that  another  deed  of  the  same  tenor  and  date  was  made 
and  delivered  to  the  defendants,  who,  in  pursuance  of  the  agreement, 
entered  and  made  improvements  upon  the  land  ;  and  that  about  three 
years  after  the  date  of  the  agreement  they  settled  an  account  with  the 
plaintiff,  and  applied  a  balance  due  to  them  on  account  towards  pay- 
ment of  the  interest  due  on  said  agreement,  which  the  plaintiff  accord- 
ingly indorsed  thereon. 

Hereupon  the  question  was  whether  the  plaintiff  was  bound  hy  this 
agreement ;  and  if  not,  whether  it  was  obligatory  on  the  defendants. 

McGaw.,  for  the  plaintiff 

W.  D.  Williamson,  on  the  other  side. 

Mellen,  C.  J.  It  is  agreed  that  Simeon  Stetson  had  not  any 
authoritv  under  the  hand  and   seal   of  the   plaintiff,  to   execute   the 


SECT.  II.J  MACLEAN   V.    DUNN.  993 

instrument  declared  on  ;  and  it  therefore  was  not  the  deed  of  Amasa 
Stetson.  No  authorities  need  be  cited  to  show  that  when  an  instru- 
ment under  seal  is  executed  b}'  attorney,  the  attorney  must  be  au- 
thorized by  deed  under  the  hand  and  seal  of  the  principal.  This  is 
admitted  by  the  counsel  for  the  plaintiff,  but  he  contends  that  in  con- 
sequence of  certain  acts  which  have  been  done  by  the  principal  since 
the  execution  of  the  instrument,  it  has  been  sanctioned  and  adopted  by 
him,  and  thereby  has  become  his  deed.  The  circumstances  relied  on 
as  proof  of  such  ratification  are,  his  acceptance  of  the  indenture  from 
the  hands  of  his  brother  after  its  execution,  and  the  indorsement  on 
the  back  of  the  instrument  of  mone}-  received  from  the  defendants  on 
account  of  the  contract.  With  respect  to  these  facts  they  cannot 
amount  to  anything  more  than  a  sanction  and  ratification  made  by 
parol ;  and  such  ratification  could  not  be  more  availing  than  a  parol 
authority  given  before  the  instrument  was  signed,  which,  as  we  have 
seen,  is  of  no  importance.  The  plaintifl^,  tlierefore,  cannot  prevail  on 
this  ground. 

But  it  is  farther  contended  that  though  the  instrument  is  not  the 
deed  of  Amasa  Stetson,  it  is  the  deed  of  the  defendants,  and  the}-  are 
bound  b}-  it,  though  the  plaintiff  is  not.^  .  .  . 

F'or  these  reasons  we  are  of  opinion  that  the  action  cannot  be  main- 
tained, and  a  nonsuit  must  be  entered,  pursuant  to  the  agreement  of 
the  parties.^ 


MACLEAN  V.  DUNN   and  WATKINS,   who  survived  AUSTIN. 
Common  Pleas.     1828. 

[4  Bing.  722.] 

This  was  a  special  action  of  assumpsit  for  not  accepting  and  paying 
for  a  quantity  of  Russian  and  German  wool.  At  the  trial  before 
Best,  C.  J.,  London  sittings  after  Michaelmas  term  1826,  the  fact? 
of  the  case  as  far  as  they  are  material  to  the  questions  here  noticed, 
were  as  follows  :  — 

The  defendants  were  carrying  on  business  in  London  as  druggists 
and  dry-salters,  when  Ebsworth,  a  London  wool-broker,  met  Watkins 

1  Passages  dealing  with  this  contention  are  omitted.  — Ed. 

«  Ace:   Hanford  v.  McXair,  9  Wend.  54  (1832). 

Contra:  Mclntyre  v.  Park,  11  Gray,  102  (1858),  where  Metcalf,  J.,  for  the  court, 
Baid :  "  The  defendant  contends  that  a  sealed  instrument,  executed  without  previous 
authority,  can  be  ratified  only  by  an  instrument  under  seal.  However  this  may  be 
elsewhere,  by  the  law  of  Massachusetts  such  instrument  may  be  ratified  by  parol. 
Cady  V.  Shepherd,  11  Pick.  400;  Swan  v.  Stedman,  4  Met.  548.  .  .  .  The  cases  in 
which  this  doctrine  has  been  adjudged  were  those  in  which  one  partner,  without  pre- 
vious authority  of  his  copartners,  executed  a  deed  in  the  name  of  the  firm.  But  w« 
do  not  perceive  any  reason  for  confining  the  doctrine  to  that  class  of  cases."  —  Ed. 

63 


994  MACLEAN   V.    DUNN.  [CHAP.  X. 

at  Manchester,  near  which  place  ^yatkius  lived,  and  on  the  part  of 
the  plaintiff  agreed  to  sell  the  defendants  165  bags  of  Russian  and 
German  wool,  to  be  paid  foi'  partly  b}'  145  bags  of  Spanish  wool, 
which,  on  the  part  of  the  defendants,  he  agreed  to  sell  to  the  plaintiff, 
and  partly  by  acceptances  or  cash,  on  certain  terms  specified  in  the 
following  bought  and  sold  note,  which  he  delivered  to  the  plaintiffs 

clerk. 

Manchester,  28th  March,  1825. 
D.  Maclean,  Esq. 

Sir,  —  We  liave  sold  for  your  account,  to  Messrs.  Dunn,  Austin, 
Watkins,  and  Co.  166  bags  of  Russian  and  German  wool,  viz.  [here 
followed  a  specification  of  the  wools  as  in  the  note  made  out  for  the 
defendants,  amounting  to  165  bags  only,  the  insertion  of  166  having 
been  admitted  on  the  trial  to  have  arisen  by  mistake  in  the  casting], 
after  deducting  the  amount  of  145  bags  of  Spanish  wool  sold  you,  the 
balance  to  be  paid  for  b}'  an  acceptance  at  four  months,  with  2^  per 
cent  discount,  or  in  cash  with  5  per  cent  discount,  at  your  option.  — 
Commission  for  selling,  1  per  cent. 

Ebsworth  and  Badham. 

Manchester,  28th  March,  1825. 
D.  Maclean,  Esq. 

Sir,  —  We  have  bought  for  your  account,  of  Messrs.  Dunn,  Austin, 
Watkins,  and  Co.,  145  bags  of  Spanish  wool,  viz.  [here  followed  a 
specification  of  145  bags  of  wool],  the  amount  of  145  bags  to  be  de- 
ducted from  the  165  bags  of  Russian  and  German  wool  bought  of  3'ou 
this  day,  and  the  balance  to  be  paid  for  by  an  acceptance  at  four 
months  at  2^  per  cent  discount,  or  in  cash,  with  5  per  cent  discount, 
on  the  1st  July,  at  your  option.  —  Commission  for  purchasing,  ^  per 
cent. 

Ebsworth  and  Badham. 

This  bought  and  sold  note  was  written  on  one  sheet  of  paper. 

Corresponding  bought  and  sold  notes,  mntatis  mutandis,  were 
made  out  by  Ebsworth  for  the  defendants.  In  these  notes  the  1st  of 
July  was  specified  as  the  day  for  cash  with  discount,  at  the  end  of  the 
sold  note  as  well  as  at  the  end  of  the  bought  note.  They  were  never 
delivered  to  either  of  the  defendants.  Ebsworth,  however,  made  out 
a  memorandum  of  the  contract  in  his  broker's  book,  called  a  contract- 
book,  which  was  not  signed  b}'  him,  and  showed  this  memorandum  to 
Watkins,  on  the  day  it  was  entered,  March  28,  1825. 

Watkins  assented  to  the  contract,  provided  Dunn's  consent  could 
be  obtained.  Ebsworth  had  had  no  previous  communication  with 
Dunn,  but  saw  him  about  the  beginning  of  the  next  month,  when,  as 
Ebsworth  swore  at  the  trial,  Dunn  assented  to  the  bargain,  and  said 
he  was  perfecth'  satisfied  with  what  was  done. 

On  the  19th  of  that  month  Dunn  told  Ebsworth  he  would  have 
nothing  to  do  with  the  contract,  which  Ebsworth  communicated  to  the 
plaintiff. 


SECT.  II.]  MACLEAN   V.   DUNN.  995 

Plaintiff,  nevertheless,  in  May  addressed  the  defendants  collectively 
on  the  subject  of  the  deliver^'  of  the  wool,  when  Watkins  wrote 
and  referred  him  to  Ebsworth,  wlio  afterwards,  with  the  assent  of 
Watkins,  and  in  the  name  of  the  defendants  collectively,  sold  and 
delivered  sixty-eight  bags  of  the  German  wool  to  Williamson  and 
Jones. 

In  July  the  plaintiff  transmitted  the  invoice  of  the  165  bags  of  wool 
to  Manchester,  addressed  to  the  defendants,  and  requested  payment 
of  what  was  due  to  him. 

In  September  he  requested  them  to  receive  and  pa}'  for  the  re- 
mainder of  the  wools  undelivered,  and  gave  notice  that  unless  the 
account  between  him  and  the  defendants  were  liquidated  bj-  the  1st 
of  November,  the  wool  remaining  undelivered  would  be  put  up  to 
public  sale  on  that  day,  and  the  defendants  held  responsible  for  any 
loss. 

The  defendants  having  declined  to  receive  them,  they  were  sold  at 
a  loss  ;  whereupon  the  present  action  was  commenced. 

It  was  objected  at  the  trial,  on  behalf  of  the  defendants,  that  there 
was  no  valid  contract  between  the  parties,  the  broker's  book  not 
having  been  signed,  and  the  bought  and  sold  notes  not  having  been 
delivered  to  each  party ;  that  Ebsworth,  having  no  authority  from 
Dunn  at  the  time  of  the  bargain,  was  not  an  agent  authorized  within 
the  meaning  of  the  statute  of  frauds  ;  that  the  bought  and  sold  note 
given  to  the  plaintiff  varied  from  that  made  out  for  the  defendants, 
the  latter  specifying  the  1st  of  July  as  the  day  for  cash  with  discount, 
at  the  end  of  the  sold  as  well  as  of  the  bought  note ;  the  former 
specifying  that  day  only  at  the  end  of  the  bought  note  ;  and  that  the 
plaintiff  had  rescinded  the  contract,  by  the  deliver}'  of  part  of  the  wool 
to  Ebsworth,  and  the  sale  of  the  remainder. 

A  verdict  was  taken  for  the  plaintiff,  with  leave  for  the  defendants 
to  move  the  Court  upon  these  points. 

Taddi/,  Serjt.  accordingly  obtained  a  rule  nisi  to  enter  a  nonsuit  or 
have  a  new  trial,  on  these  and  sundry  other  questions  of  law  and  fact. 

With  respect  to  the  alleged  variance,  the  Court  held  that,  as  the 
plaintiff's  bought  and  sold  note  was  all  written  on  the  same  sheet  of 
paper,  the  1st  of  July,  specified  at  the  end  of  the  bought  note,  must 
be  taken  to  apply  equally  to  the  contract  in  the  sold  note,  and  that 
therefore  the  instrument  corresponded  sufficiently  with  the  bought  and 
sold  note  made  out  for  the  defendants. 

If  the  subsequent  ratification  by  Dunn  constituted  Ebsworth,  by 
relation,  an  agent  duly  authorized  within  the  meaning  of  the  statute 
of  frauds,  at  the  time  of  the  contract,  a  bought  and  sold  note  having 
been  made  out  and  signed  by  him  on  the  part  of  the  defendants,  his 
delivering  it  to  them  and  his  signing  the  contract-book  would  not  be 
essential  to  the  validity  of  the  contract. 

It  is  only  necessary,  therefore,  to  report  what  was  said  on  the 
points,  Whether  a  person  who  makes  a  contract  for  another,  without 


996  MACLEAN   V.   DUNN.  [CHAP.  X. 

due  authorit}',  becomes,  on  the  ratiflcation  of  the  contract  by  the  part}' 
to  be  charged,  a  sufficient  agent  to  bind  him,  within  the  meaning  of 
the  statute  of  frauds,  and  Whether  the  disposal  by  the  vendor,  of 
goods  sold,  with  a  view  to  prevent  further  loss  upon  the  vendee's 
refusing  to  receive  them,  be  a  rescinding  of  the  contract.^ 

Wilde  and  Russell.,  Serjts.,  for  the  plaintiff. 

Tadcly  and  Spankie,  Serjts,  contra.     > 

Best,  C.  J.  It  has  been  argued,  that  the  subsequent  adoption  of 
the  contract  by  Dunn  will  not  take  this  case  out  of  the  operation  of 
the  statute  of  frauds  ;  and  it  has  been  insisted,  that  the  agent  should 
have  his  authority  at  the  time  the  contract  is  entered  into.  If  such 
had  been  the  intention  of  the  legislature,  it  would  have  been  expressed 
more  clearl}' ;  but  the  statute  onh'  requires  some  note  or  memorandum 
in  writing,  to  be  signed  hy  the  party  to  be  charged,  or  his  agent  there- 
unto lawfully  authorized  ;  leaving  us  to  the  rules  of  common  law,  as 
to  the  mode  in  which  the  agent  is  to  receive  his  authority.  Now,  in 
all  other  cases,  a  subsequent  sanction  is  considered  the  same  tiling 
in  effect  as  assent  at  the  time.  Omnis  ratihabitio  retrotrahitur  et 
mandato  mquiparatur :  and  in  my  opinion,  the  subsequent  sanction 
of  a  contract  signed  b\'  an  agent,  takes  it  out  of  the  operation  of  the 
statute  more  satisfactorily  than  an  authorit}'  given  beforehand.  Where 
the  authorit}'  is  given  beforehand,  the  part}'  must  trust  to  his  agent; 
if  it  be  subsequently  to  the  contract,  the  party  knows  that  all  has  been 
done  according  to  his  wishes.  But  in  Kinnitz  v.  Surry,  where  the 
broker,  who  signed  the  broker's  note  upon  a  sale  of  corn,  was  the 
seller's  agent.  Lord  Ellenborough  held  that,  if  the  buyer  acted  upon 
the  note,  that  was  such  an  adoption  of  his  agency  as  made  his  note 
sufficient  within  the  statute  of  frauds  ;  and  in  Soames  v.  Spencer,  1  D. 
&  R.  32,  where  A.  and  B.,  being  jointly  interested  in  a  quantity  of  oil, 
A.  entered  into  a  contract  for  the  sale  of  it,  without  the  authority  or 
knowledge  of  B. ,  who,  upon  receiving  information  of  the  circumstance, 
refused  to  be  bound,  but  afterwards  assented  by  parol,  and  samples 
were  delivered  to  the  vendees  ;  it  was  held,  in  an  action  against  the 
vendees,  that  B.'s  subsequent  ratification  of  the  contract  rendered  it 
binding,  arvd  that  it  was  to  be  considered  as  a  contract  in  writing 
within  the  statute  of  frauds.  That  is  an  express  decision  on  the  point, 
that  under  the  statute  of  frauds  the  ratification  of  the  principal  relates 
back  io  the  time  when  the  agent  made  the  contract.  .  .  . 

Rule  discharged.* 

^  The  opinion  has  been  shortened  by  omittina:  the  discussion  as  to  the  resale.  — Ed 
*  See  McDowell  v.  Simpson,  3  Watts,  129  (1834).  — Ed. 


SECT.  11.]  WILSON   V.   TUMMAN.  997 


WILSON  AND  ANOTHER  V.  TUMMAN  AND  FRETSON. 

Common  Pleas.     1843. 

[6  M.  i-   G.  236.] 

Trespass,  de  bonis  asportatis.  Plea,  by  each  defendant  separatel}', 
not  guilt}-. 

At  the  trial  before  Parke,  B.,  at  the  last  assizes  for  the  count}'  of 
York,  the  following  facts  appeared. 

In  November,  1842,  the  plaintiffs  took  possession  of  the  goods  in 
question,  under  a  deed  of  assignment  from  Jeremiah  New,  to  whom 
the  goods  had  previously  belonged,  and  in  whose  house  they  still 
were. 

On  the  3d  of  December,  1842,  these  goods  were  seized  and  taken 
awa}'  under  some  process  directed  to  the  sheriff  in  respect  of  a  debt 
due  from  New  to  Tummau.  Neither  of  the  defendants  authorized  this 
seizure  before,  or  at  the  time,  it  was  made.  Both  the  defendants  were, 
on  the  same  day,  served  with  notice  that  the  plaintiffs  claimed  the 
goods. 

On  the  3d  of  December,  the  defendant  Fretson,  who  was  Tumman's 
attorney,  gave  a  notice  in  writing  to  Mrs.  Fearn,  —  to  whose  house  the 
goods  had  been  removed  the  day  before,  —  in  which  he  said,  "  I  am 
coming  about  the  goods  which  were  seized,"  and  desired  her  not  to 
part  with  the  goods  to  any  person  except  Tumman.  On  the  5th  of 
December  Fretson  sent  her  a  written  indemnity  for  retaining  them. 

On  the  19th  of  Januar}-,  1843,  notice  was  given  to  the  defendants 
that  an  action  would  be  brought  against  them  and  the  sheriff  and  his 
officers  for  the  seizure.  The  person  who  served  Tumman  with  the 
notice  asked  if  he  had  any  claim  on  the  goods ;  to  which  he  answered, 
"  Yes,  I  have  ;  and  a  just  claim,  I  consider." 

Upon  this  evidence  the  learned  judge  directed  the  jury,  that  as  the 
order  given  by  Fretson  had  not  been  acted  upon  by  any  refusal  on  the 
part  of  Mrs.  Fearn  to  deliver  the  goods  to  the  plaintiffs,  the  onl}' 
question  for  their  consideration  was,  whether  the  seizure  on  the  3d  of 
December  was  made  by  order  of  the  defendants  or  either  of  them. 
That  an  order  to  seize  the  goods  was  in  this  case  necessary,  to  charge 
the  defendants  with  the  trespass ;  that  although  the  subsequent  assent 
and  ratification  by  B  of  an  act  done  by  A,  professing  to  act  for  and  on 
account  of  B  is  sufficient  to  make  that  act  the  act  of  B,  by  relation, 
here,  the  sheriff's  officers  acted  as  ministers  of  the  law,  without  any 
intention  to  act  as  agents  of  the  party  suing  out  the  process  ;  that  as 
to  Fretson,  the  question  of  ratification  did  not  arise,  inasmuch  as  the 
seizure  could  not  be  for  his  benefit.  The  learned  judge  therefore 
asked  the  jury  to  find,  whether  the  defendants,  or  either  of  them,  gave 
any  previous  authority  for  making  the  seizure,  and  whether  the  de- 
fendant Tumman  had  authorized  or  had  merely  given  a  subsequent 


998  WILSON    V,   TUMMAN.  [CHAP.  X. 

assent  to  a  seizure.  The  jury  found  Ihat  neither  of  the  defendants  had 
originally  authorized  tlie  seizure,  but  that  Tumman  had  subsequently 
sanctioned  and  authorized  such  seizure.  'I"he  learned  judge  directed 
the  verdict  to  be  entered  for  both  of  the  defendants,  reserving  leave  to 
the  plaintiffs  to  move  to  enter  a  verdict  for  £2  IG.v.  against  Tumman,  if 
the  court  should  be  of  opinion  that  his  ratification  made  him  liable  as  a 
trespasser. 

JiomjX(s,  Serjt,  in  the  following  term  moved  to  enter  a  verdict 
for  £2  16s  against  Tumman,  or  for  a  new  trial  on  the  ground  of 
misdirection. 

TiNDAL,  C.  J.  You  may  take  a  rule  for  entering  a  verdict  against 
Tumman  ;  there  is  no  pretence  for  making  Fretson  a  trespasser. 

J^t/les,  Serjt.,  now  showed  cause. 

Bompas,  Serjt.  (with  whom  was  Cleasby)^  in  support  of  the  rule. 

Cur.  adv.  vult, 

TiNDAL,  C.  J.,  now  delivered  the  judgment  of  the  court.  This 
case  comes  before  us  on  a  rule  obtained  bv  the  plaintiffs,  by  leave  of 
the  learned  judge  at  the  trial,  to  enter  a  verdict  for  them  against  the 
defendant  Tumman,  for  £2  16s.,  if  the  court  should  think  that  his  sub- 
sequent ratification  made  him  liable,  as  a  trespasser,  for  the  original 
seizure. 

The  seizure  of  the  plaintiffs'  goods  was  made  by  some  officers  of  the 
sheriff,  without  any  precedent  authority  from  Tumman,  who  appeared 
upon  the  evidence  at  the  trial  to  be  a  plaintiff  in  some  suit,  the  nature 
of  which  did  not  transpire,  but  who  is  found  by  the  jury  not  to  have 
given  an}'  precedent  authority  to  take  the  goods  of  the  plaintiffs,  but 
to  have  ratified  the  taking  after  it  was  made.  The  question,  therefore, 
is  a  dry  question  of  law,  whether  the  subsequent  ratification  by  this 
defendant,  of  a  taking  under  such  circumstances,  is  the  same,  in  its 
consequences,  as  a  precedent  command  of  the  defendant.  And  we 
think,  under  the  authorities,  and  upon  the  reason  of  the  thing  itself, 
that  it  is  not. 

That  an  act  done,  for  another,  b^^  a  person  not  assuming  to  act  for 
himself,  but  for  such  other  person,  though  without  any  precedent 
authorit}'  whatever,  becomes  the  act  of  the  principal,  if  subsequent!}^ 
ratified  b_y  him,  is  the  known  and  well-established  rule  of  law.  In  that 
case  the  principal  is  bound  by  the  act,  whether  it  be  for  his  detriment 
or  his  advantage,  and  whether  it  be  founded  on  a  tort  or  a  contract,  to 
the  same  extent  as  b}',  and  with  all  the  consequences  which  follow  from, 
the  same  act.  done  b}'  his  previous  authoritj'.  Such  was  the  precise 
distinction  taken  in  the  Year-Book,  7  Hen.  4,  fo.  35,*  that  if  the 
bailiff  took  the  heriot,  claiming  property  in  it  himself,  the  subsequent 
agreement  of  the  lord  would  not  amount  to  a  ratification  of  his  au- 
thorit}',  as  bailiff  at  the  time  ;  but  if  he  took  it,  at  the  time,  as  bailiff 
of  the  lord,  the  subsequent  ratification  by  the  lord  made  him  bailiff  at 
1  I.  e.,  H.  7,  H.  4,  fo.  34,  pi.  1.  —  Rep. 


SECT.  II.]  WILSON    V.    TUMMAN.  999 

the  time.  Tlie  same  distinction  is  also  laid  down  by  Anderson,  C.  J., 
in  Godbolt's  Reports,  109  :  '•  If  one  have  cause  to  distrain  my  goods, 
and  a  stranger,  of  his  own  wrong,  without  any  warrant  or  authority 
given  him  by  the  other,  takes  my  goods,  not  as  bailiff  or  servant 
to  the  other,  and  I  bring  an  action  of  trespass  against  him,  can 
he  excuse  himself  by  saying  that  he  did  it  as  his  bailiff  or  servant? 
Can  he  also  father  his  misdemeanor  upon  another?  He  cannot;  for 
once  he  was  a  trespasser,  and  his  intent  was  manifest." 

In  the  present  case  the  sheriff's  officers,  who  were  the  original  tres- 
passers by  taking  the  goods  of  the  plaintiffs,  were  not  servants  or 
agents  of  the  defendant  Tumman,  but  the  agents  of  a  public  officer  or 
minister,  obeying  the  mandate  of  a  court  of  justice.  They  did  not 
assume  to  act,  at  the  time,  as  agents  or  bailiffs  of  the  then  plaintiff 
Tumman,  but  they  acted  as  the  servants  of  another,  viz.,  the  sheriff, 
by  virtue  of  the  process  directed  to  him  by  the  court.  And  this  forms 
the  distinction  between  the  present  case  and  that  of  Parsons  i-.  Llovd 
relied  upon  in  the  argument.  In  the  present  case  the  sheriff,  or  the 
sheriff's  officers,  seized  under  process,  which  is  not  suggested  to  have 
been  void  or  irregular,  but  must  be  taken  to  be  valid  process.  In  the 
case  in  Wilson,  the  writ  had  been  set  aside  as  irregular ;  and,  conse- 
quently, the  arrest  had  been  made  without  any  autliorit}-.  In  that  case, 
therefore,  the  sheriff  had  acted,  not  under  an^-  authority  of  the  court, 
but  under  the  direction  of  the  plaintiff  in  the  original  action,  who,  by 
suing  out  void  process,  was  in  the  same  situation  as  if  he  had  orally 
desired  the  sheriff  or  his  otHcer  to  make  the  arrest.  And  on  the  latter 
supposition,  where  a  ca.  sa.  or  fi.f<i.  has  been  set  aside  for  irregularitv, 
it  becomes  a  nullit}-,  and  no  doubt  the  sheriff  acts  as  the  servant,  and 
b}'  the  command  of  the  plaintiff  who  sued  it  out,  and  who  is  conse- 
quently liable,  as  a  principal,  for  the  act  of  his  agent. 

If  the  defendant  Tumman  had  directed  the  sheriff  to  take  the  goods 
of  the  present  plaintiffs,  under  a  valid  writ,  requiring  him  to  take  the 
goods  of  another  person  than  the  defendant  in  the  original  action,  such 
previous  direction  would  undoubtedh'  have  made  him  a  trespasser,  on 
the  principle  that  all  who  procure  a  trespass  to  be  done  are  trespassers 
themselves,  and  the  slieriff  would  be  supposed  not  to  have  taken  the 
goods  merel\-  under  the  authoritj'  of  the  writ,  but  as  the  servant  of  the 
plaintiff.  But  where  the  sheriff,  acting  under  a  valid  writ  by  the  com- 
mand of  the  court  and  as  the  servant  of  the  court,  seizes  the  wrong 
person's  goods,  a  subsequent  declaration  b}-  the  plaintiff  in  the  original 
action,  ratifying  and  approving  the  taking,  cannot,  ui)on  the  distinction 
above  taken,  alter  the  character  of  the  original  taking,  and  make  it  a 
wrongful  taking  by  the  plaintiff  in  the  original  action. 

On  the  ground  of  this  distinction,  we  think  the  defendant  Tumman 
is  not  shown  to  be  a  trespasser,  and  that  the  rule  must  be  discharged. 

Rule  disdiiirged. ' 

1  See  Saunderson  v.  GriflRths,  .5  B.  &  C.  909  (1826) ;  Western  rublishing  House  v. 
District  Township  of  Rock,  84  Iowa,  101  (189i;.  — Ed. 


1000  FOSTER   V.    BATES.  l^CHAP.  X. 


FOSTER,  Administrator,  v.  BATES  and  others. 
Exchequer.      1843. 

[1:2  M.  ^-    [y\  226] 

Assumpsit  by  the  plaintiff,  as  administrator  of  E.  Pollard,  deceased, 
for  goods  sold  and  delivered  b}'  the  intestate,  and  also  for  goods  sold 
and  delivered  by  the  plaintiff  after  his  death,  and  before  administration 
granted,  and  on  an  account  stated  with  tlie  plaintiff. 

Plea,  tion  assumpsit. 

At  the  trial  before  Rolfe,  B.,  at  the  London  Sittings  after  last  Trinity 
Term,  it  appeared  that  the  defendants  were  partners  in  a  company' 
called  the  West  African  Company,  trading  to  the  coast  of  Africa,  and 
that  one  Old  field  was  their  agent  at  Fernando  Po,  The  goods  in  ques- 
tion had  been  sent  b}'  Pollard  from  this  country'  to  Africa  for  sale  ;  he 
afterwards  died  intestate  ;  and  after  his  death,  Oldfield,  the  defendants' 
agent,  purchased  the  goods  from  the  agent  of  the  intestate  there,  who 
sold  them  for  the  benefit  of  the  intestate's  estate.  Subsequently  to  the 
sale,  the  plaintiff  took  out  letters  of  administration  to  Pollard,  and 
brought  this  action  for  the  price  of  the  goods.  It  was  objected  at  the 
trial,  that  the  plaintiff  was  not  entitled  to  recover,  as  the  letters  of 
administration  did  not  relate  back  to  the  time  of  the  death  of  the  intes- 
tate, so  as  to  vest  in  the  administrator  the  right  to  sue  on  a  contract 
made  after  his  death.  The  learned  judge,  however,  left  the  case  to 
the  jury,  who  found  a  verdict  for  the  plaintiff,  leave  having  been  reserved 
to  the  defendants  to  move  to  enter  a  nonsuit. 

Kelly  having  in  the  early  part  of  this  term  obtained  a  rule  accordingly, 

W.  H.   Watson  and  Greenwood  showed  cause. 

Hoggins  (Kellg  with  him),  in  support  of  the  rule. 

Cur.  adv.  vult. 

Parke,  B.  In  this  case,  which  was  argued  a  day  or  two  ago,  we 
delayed  giving  our  judgment,  not  on  account  of  any  doubt  we  enter- 
tained at  the  time,  but  in  order  that  we  might  refer  to  the  several 
authorities  cited  at  the  bar.  We  are  of  opinion  that  the  rule  to  enter  a 
nonsuit  must  be  discharged.  The  onl}'  question  is,  whether  the  plaintiff 
could  sue  for  goods  sold  and  delivered  b}-  him  as  administrator  of  one 
Pollard,  upon  the  facts  which  were  in  evidence  on  the  trial.  It  appeared 
that  the  goods  were  sold  after  the  death  of  the  intestate,  and  before  the 
grant  of  letters  of  administration,  bj-  one  who  had  been  the  agent  of 
the  deceased  on  the  coast  of  Africa ;  and  that  they  were  there  sold 
avowedl}'  on  account  of  the  estate  of  the  intestate. 

It  is  clear  that  the  title  of  an  administrator,  though  it  does  not  exist 
until  the  grant  of  administration,  relates  back  to  the  time  of  the  death 
of  the  intestate  ;  and  that  he  may  recover  against  a  wrong  doer  who 
has  seized  or  converted  the  goods  of  the  intestate  after  his  death, 


SECT.  II  ]  LEWIS   V.    READ.  1001 

in  an  action  of  trespass  or  trover.  All  the  authorities  on  this  subject 
were  considered  by  the  Court  of  Common  Pleas,  in  the  case  of  Tliarpe 
V.  Stallwood,^  where  an  action  of  trespass  was  held  to  be  maintainable. 
The  reason  for  this  relation  given  by  RoUe,  C.  J.,  in  Long  v.  Hebb, 
Styles,  341,  is  that  otherwise  there  would  be  no  remedy  for  the  wrong 
done.  The  relation  being  established  for  the  benefit  of  the  intestate's 
estate,  against  a  wrongdoer,  we  do  not  see  why  it  should  not  be  equally 
available  to  enable  the  administrator  to  obtain  the  benefit  of  a  contract 
intermediately  made  by  suing  the  contracting  party ;  and  cases  might 
be  put  in  which  the  right  to  sue  on  the  contract  would  be  more  beneficial 
to  the  estate  than  the  right  to  recover  the  value  of  the  goods  themselves. 
In  the  present  case  there  is  no  occasion  to  have  recourse  to  the  doctrine 
that  one  maj^  waive  a  tort  and  recover  on  a  contract ;  for  here  the  sale 
was  made  by  a  person  who  intended  to  act  as  agent  for  the  person, 
whoever  he  might  happen  to  be,  who  legall}'  represented  the  intestate's 
estate  ;  and  it  was  ratified  by  the  plaintiff,  after  he  became  administrator : 
and,  when  one  means  to  act  as  agent  for  another,  a  subsequent  ratifica- 
tion by  the  other  is  always  equivalent  to  a  prior  command  ;  nor  is  it 
any  objection  that  the  intended  principal  was  unknown,  at  the  time,  to 
the  person  who  intended  to  be  the  agent,  the  case  of  Hull  v.  Pickersgill, 
1  Bro.  &  B.  282,  cited  by  Mr.  Greenwood,  being  an  authority  for  that 
position.  We  are,  therefore,  of  opinion  that  the  plaintiff  is  entitled  to 
recover.  Mule  discliarged? 


LEWIS   V.   READ   and  others. 

Exchequer.     1845. 

[13  M.  ^'  W.  834.] 

Case.  The  first  count  was  for  illegally  distraining  and  selling  the 
cattle  of  the  plaintiff  for  rent  due  to  the  defendant  Read  from  one  John 
Lewis,  without  duly  appraising  the  same  ;  the  second  count  was  in 
trover ;  the  third  was  for  selling  them  for  less  than  the  best  price. 
Plea,  not  guilty,  by  statute.  At  the  trial,  before  Coleridge,  J.,  at 
the  last  assizes  for  Montgomeryshire,  it  appeared  that  the  plaintiffs 
brother,  John  Lewis,  was  tenant  from  year  to  year  to  the  defendant 
Mr.  Crewe  Read,  of  a  mill  and  farm  called  Aberborthen,  and  a  moun- 
tain sheep-walk  called  Penybryn  ;  and  that,  being  in  arrear  with  his 
rent,  the  other  defendants,  by  the  verbal  direction  of  a  Mr.  Owens, 
who  was  Mr.  Read's  general  agent  for  the  management  of  his  estate, 
on  the  11th  May,  1844,  distrained  about  forty  sheep  belonging  to  the 
plaintiff  to  satisfy  the  rent,  which  were  sold,  under  Mr.  Owens's  direc- 
tions, for  £14  los.  Mr.  Owens  had  expressly  directed  the  defendants 
not  to  take  anytliing  but  what  they  should  find  on  Aberborthen  or  on 

^  12  Law  J.  N.  8.  241.     See  also  Brooke's  Alir.,  delation,  15,  —  Rep. 
2  See  Ljell  v  Kennedy,  14  App.  Cas.  437  (1889).  — Ed. 


1002  LEWIS   V.   READ.  [CHAP.  X. 

Fenybryn.  The  main  questions  in  the  cause  were,  first,  whether  the 
sheep  (which  were  clearly  shown  to  be  the  property  of  the  plaintiff, 
and  not  of  John  Lewis)  were  or  were  not  distrained  upon  the  sheep- 
walk  of  Peuybryn,  or  beyond  its  boundary  ;  and,  secondly,  whether,  at 
the  time  of  the  distress,  John  Lewis's  tenancy  in,  or  possession  of  the 
farm  and  sheep-walk  continued  :  on  both  which  points  there  was  con- 
flicting evidence.  It  appeared  that  the  defendants  had  in  the  first 
instance  seized  about  a  dozen  sheep,  which  they  found  on  the  Peny- 
br3n  mountain,  and  that,  while  the}-  were  driving  them  down,  and 
somewhere  ver}'  near  the  boundary-  of  the  Penybryn  sheep-walk,  these 
were  joined  b}'  the  other  sheep,  which  had  been  straying  upon  an  ad- 
joining sheep-walk  belonging  to  another  farm.  Mr.  Owens  received 
the  proceeds  of  the  sale  of  the  sheep,  and  accounted  for  the  money  to 
Mr.  Read  ;  but  there  was  no  direct  evidence  that  either  Mr.  Owens  or 
Mr.  Read  was  informed  where  the  sheep  were  taken,  or  had  any  dis- 
tinct knowledge  that  the  distress  was  not  made  on  the  Penybryn  sheep- 
walk.  The  learned  judge,  in  summing  up,  told  the  jury,  that,  if  the 
sheep  were  distrained  off  the  Penybryn  sheep-walk,  although  it  might 
be  so  near  the  boundarv  as  to  amount  to  a  mere  irregularity  in  the 
bailiffs  ;  or  if,  at  the  time  of  the  distress,  the  tenanc}'  of  John  Lewis  in 
Penybryn  had  determined,  and  he  did  not  continue  in  possession  of  it, 
the  defendants  were  all  liable  on  the  count  in  trover.  The  jury  found 
that  the  first  lot  of  sheep  were  taken  on  Penybryn,  but  that  there  was 
no  evidence  to  satisfy  them  where  the  others  were  taken  ;  and  that,  at 
the  time  of  the  distress,  John  Lewis  had  ceased  to  be  the  tenant,  and 
did  not  continue  in  possession  of  Penybryn  ;  and  thereupon,  under  the 
direction  of  the  learned  judge,  a  verdict  was  entered  for  the  plaintiff 
against  all  the  defendants  on  the  count  in  trover,  damages  £14  15s. 

Welsby,  in  Michaelmas  Term  last,  obtained  a  rule  nisi  for  a  new 
trial,  on  the  ground  of  misdirection  ;  contending  that,  without  evidence 
of  the  ratification  by  the  defendant  Read  of  the  irregularity  in  the 
execution  of  the  distress,  with  knowledge  of  such  irregularity',  he  could 
not  be  liable  in  trover ;  that  there  was  no  evidence  of  such  ratification, 
or,  if  there  were,  that  the  question  had  not  been  left  to  the  jury. 

W.  Yardley  and  E.  Beavan  (with  whom  were  Jervis  and  'Wilkin) 
now  showed  cause. 

Welshy  (with  whom  was  Tovmsend)^  in  support  of  the  rule. 

Parke,  B.  I  am  afraid  the  rule  must  be  absolute.  There  is  no 
doubt  that  the  acts  of  the  defendant  Read,  in  directing,  through  his 
agent  Owens,  the  sale  of  the  sheep,  and  receiving  the  proceeds,  were  a 
sufficient  ratification  of  the  act  of  the  bailiffs  in  making  the  distress,  as 
to  such  of  the  sheep  as  were  taken  on  the  Penybryn  sheep-walk,  be- 
cause the  taking  of  them  was  within  the  original  authority  given  to  the 
bailiffs  b}-  Owens  as  the  agent  of  Read.  But  as  to  the  others,  which 
were  not  proved  to  have  been  taken  on  Penybryn,  and  as  to  which, 
therefore,  the  authorit}-  was  not  followed,  Mr.  Read  could  not  be  liable 
in  trover,  unless  he  ratified  the  act  of  the  bailifl!s,  with  knowledge  that 


I 
i 


SECT.  II.J  WHITE   V.   SANDERS.  1003 

they  took  the  sheep  elsewhere  thau  on  Penvbnn  ;  or  unless  he  meant 
to  take  upon  himself,  without  inquiry,  the  risk  of  any  irregularity  which 
they  might  have  committed,  and  to  adopt  all  their  acts.  There  appears 
to  have  been  evidence  quite  sufficient  to  warrant  the  jury  in  coming  to 
the  conclusion  that  he  did,  in  this  sense,  ratify  the  acts  of  the  other 
defendants;  but,  as  this  question  was  not  left  to  the  jury,  the  defend- 
ant is  entitled  to  a  new  trial. 

Alderson,  B.,  Rolfk,  B.,  and  Platt,  B.,  concurred. 

Hule  absolute.^ 


WHITE  ET  AL  V.  SANDERS  et  al. 
Sl'pkeme  Court  of  Maine.     1850. 

[32  Me.  188.] 

Exceptions.     Trover  for  a  lot  of  goods. 

In  18-48  the  plaintiffs  consigned  the  goods  to  one  James  Getchell, 
with  private  verbal  orders  to  sell  at  retail  and  for  cash  only.  Before 
the  delivery  of  the  goods  to  him,  Getchell  paid  the  plaintiffs  $35  toward 
them,  and  promised  $15  more,  but  did  not  pa}'  it.  He  gave  what  was 
intended  for  securit}-,  b}-  an  absolute  deed  of  a  store.  After  retailing 
fifteen  dollars  worth  of  the  goods,  he  sold  all  the  residue  to  the  defend- 
ants, at  the  invoice  prices,  taking  in  payment  fiftj'  dollars  in  cash,  a 
horse,  wagon,  and  harness,  and  the  defendants'  notes  at  six  and  nine 
months  for  the  balance.  He  exhibited  the  plaintiffs'  invoice  to  the  de- 
fendants, and  receipted  his  bill  of  sale  to  defendants,  as  agent  for  plain- 
tiffs. After  plaintiffs  knew  of  the  sale,  they  received  of  Getchell  some 
store  furniture,  which  the}'  immediatel}'  sold,  and  also  $13.55  in  mone}', 
but  whether  it  was  a  part  of  the  $50  received  of  defendant  was  not 
shown.  The  plaintiffs  also  received  about  $25  for  the  rent  of  the 
store. 

1  In  Freeman  r.  Kosher,  13  Q.  B.  780,  789  (1849),  Pattesox,  J.,  for  the  court, 
said :  "  The  intention  to  adopt  the  act  at  all  events  is  the  same  as  adopting  with 
knowledge." 

In  Phosphate  of  Lime  Co.  v.  Green,  L.  P.  7  C.  P.  43,  58  (1871),  Willes,  J.,  said: 
"  With  respect  to  those  who  did  not  think  proper  to  seek  information,  the  fact  that 
they  (lid  not  choose  to  inquire  is  strong  evidence  that  they  were  satisfied  to  adopt  the 
acts  of  the  directors  at  all  events  and  under  whatever  circumstances." 

In  Meehan  v.  Forre.ster,  .52  N.  Y.  277,  279-280  (1873),  Rapallo,  J.,  for  the  court, 
said :  "  The  agency  of  Pinkney  was  to  collect  the  debt,  not  to  purchase  lands.  When, 
under  those  circumstances,  Pinkney  delivered  to  Bertine  the  deed  obtained  from  the 
plaintiff,  it  was  the  duty  of  Bertine  to  inquire  and  of  Pinkney  to  communicate  under 
what  arrangement  the  deed  had  been  obtained.  In  the  absence  of  any  evidence  to 
the  contrary,  the  presumption  is  that  these  duties  were  performed.  (2  Hill,  464.)  If 
not,  and  Bertine  received  the  deed  Idiiidly  without  receiving  or  making  any  inquiry, 
he  must  be  deemed  to  have  confided  the  whole  matter  to  his  attorney,  and  adopted 
whatever  arrangements  the  latter  may  have  made  to  obtain  the  deed." 

And  see  Fitzmaurice  v.  Bayley,  6  E.  &  B.  868  (1856).  —  Ed. 


1004  DORD   V.   BONNAFF^E.  [CHAP.  X. 

At  the  time  of  purchasing,  tlie  defendants  knew  of  the  private  in- 
structions to  Getchell  to  sell  for  cash  onl}-.  This  action  was  brought 
after  a  demand  upon  the  defendants  of  "the  goods  which  they  pur- 
chased of  James  Getchell." 

Shepley,  C.  J.,  presiding,  instructed  the  jury  that  the  demand  was 
sufficient,  if  they  were  satisfied  that  defendants  purchased  the  goods  of 
Getchell,  and  took  a  bill  of  them. 

The  counsel  for  the  defendants  requested  the  judge  to  instruct  the 
jur\',  that  if  the}'  believed  that  plaintiffs,  since  their  knowledge  of  the 
sale  to  defendants,  had  accepted  money,  property,  or  security  from 
the  agent  on  account  of  the  goods  sold,  this  might  be  regarded  as  a 
ratification  of  the  sale  to  defendants,  notwithstanding  the  agent  ex- 
ceeded his  authority  in  making  it. 

The  judge  declined  giving  said  instructions,  but  did  instruct  the  jur}' 
that,  if  the  plaintiffs  received  of  Getchell,  after  he  sold  the  goods  to 
the  defendant,  money,  or  other  propert}',  which  they  would  not  be  en- 
titled to  receive  unless  the  sale  was  regarded  as  valid,  the  sale  would 
thereb}-  be  ratified  ;  but  if  they  would  be  entitled  to  receive  tlie  same 
from  Getchell,  if  the  sale  were  regarded  as  unauthorized,  the  sale  would 
nof  thereby'  be  ratified. 

To  the  instructions  and  rulings  the  defendants  except,  after  verdict 
against  them. 

Tenxey,  J.,  oralh' :     The  instruction  as  to  the  demand  was  correct. 

The  defendants'  counsel  requested  certain  instructions.  But  the 
mere  knowledge  b}'  the  plaintiffs  of  the  sale  to  the  defendants,  and 
their  receipt  from  Getchell  of  mone}-  on  account  of  the  goods,  would 
not  necessarily  be  a  ratification.  The  modification  of  requested  instruc- 
tion was  rightfully  made  by  the  judge.  Exceptions  overruled} 


DORD   V.   BONNAFF^E   &   CO. 
Supreme  CodPvT  of  Louisiana.     1851. 

[6  La.  Ann.  563.] 

Appeal  from  the  Fourth  District  Court  of  New  Orleans,  Straw- 
bridge,  J. 

A.  IT.  Ogden,  for  plaintiff. 

W.  C.  Hanmer^  for  defendants. 

EusTis,  C.  J.  This  suit  was  commenced  by  attachment.  The 
appeal  is  taken  by  the  plaintiff,  from  a  judgment  of  the  court  of  the 
fourth  district  of  New  Orleans,  dismissing  his  petition,  on  the  ground 
that  no  property  of  the  defendants  was  attached.  The  plaintiff 
attached  certain  assets  in  the  hands  of  Eugene  Rousseau,  under  pro- 

^  See  Tbacher  v.  Pray,  118  Mass.  291  (1873).  — Ed. 


SECT.  II.]  DORD    V.    BONNAFFEE.  1005 

cess  of  garnishment.  The  garnishee  claims  to  hold  the  assets,  as 
assignee  of  the  defendants,  for  the  use  of  their  creditors.  The  plain- 
tiff traversed  the  answers  of  the  garnishee,  and  alleged  that  the  assign- 
ments under  which  he  claims  to  hold  are,  on  their  face,  fraudulent, 
null,  and  void  as  to  creditors ;  and  that  no  title  to  the  property  was 
thereby  vested  in  the  assignee,  which  can  prevail  against  his  attach- 
ment. The  argument  before  us  is  on  the  validit}'  and  effect  of  the 
assignments. 

Edward  Bonnaffee  and  Charles  Bonnaffee  were  merchants,  residing 
in  Havre,  France,  and  there  trading  under  the  name  of  Bonnaffee  & 
Co.  The  assignment  purports  to  be  made  b}-  them  in  favor  of  Eugene 
Rousseau,  by  their  attorney  in  fact,  Charles  Bonnaffee,  in  the  city  of 
New  York,  on  the  11th  of  December,  1847.  It  purports  to  transfer  to 
the  assignee  all  the  property  of  the  firm  of  Bonnaffee  &  Co.,  all  the 
assets,  etc.,  originating  from  or  connected  with  a  bankrupt  banking 
concern  in  the  State  of  Mississippi ;  and  to  be  in  furtherance  of  a  cer- 
tain other  assignment,  bearing  the  same  date,  made  bj-  the  said  Bon- 
naffee &  Co.,  to  Victor  Delannay  &  Charles  Sagon}',  of  the  cit}'  of 
New  York.  This  assignment  is  also  signed  by  Charles  Bonnafiee,  as 
attorney  in  fact  of  Bonnaffee  &  Co.,  of  PMward  and  Charles  Bonnaffee. 
Both  of  these  assignments  were  afterwards  formally  ratified  bj-  the 
principals  in  France. 

The  plaintiff  is  the  holder  of  several  bills  of  ex(;hange,  drawn  by  the 
agent  in  New  York,  in  the  name  of  the  firm,  on  the  house  in  Havre, 
protested  for  non-acceptance  and  non-payment.  His  residence  is  in 
the  cit}'  of  New  York.  In  considering  b}-  virtue  of  what  system  of 
laws  the  rights  of  the  respective  parties,  in  relation  to  the  assignment, 
are  to  be  determined,  the  first  question  among  those  raised  in  argu- 
ment, to  be  determined,  is,  as  to  the  place  in  which  the  contracts  were 
made  in  a  legal  sense.  They  were  both  signed  in  the  cit}'  of  New 
York,  b}-  Charles  Bonnaffee,  as  agent.  That  in  favor  of  Delanna}' 
and  Sagony,  so  far  as  thej-  are  concerned,  may  be  considered  as  having 
been  executed  in  that  city,  as  they  both  resided  there  and  signed  the 
assignment.  That  in  fa\"or  of  Eousseau,  he  at  the  time  being  a  resi- 
dent of  Jackson,  in  the  State  of  Mississippi,  may  be  considered,  so 
far  as  he  is  concerned,  as  executed  in  that  State  ;  as  the  last  consent 
ma}-  be  held  to  be  given  by  his  acceptance  of  the  assignment.  But 
whether  to  be  considered  as  executed  there  or  in  New  York,  as  the 
laws  in  relation  to  instruments  of  this  class  are  not  supposed  to  be 
different,  it  is  not  material  to  inquire.  The  difficulty  appears  to  be, 
the  place  in  which  the  contracts  were  made  by  Edward  Bonnaffee  and 
Charles  Bonnaffee,  the  parties  of  the  first  part  to  the  assignments. 

It  is  not  insisted  that  the  assignments,  as  made  b}'  the  agent  in  New 
York,  derive  any  validit}'  from  his  signing  them,  as  his  authorit}-  to 
make  them  has  not  been  shown.  But  the  formal  ratification  of  both 
instruments  b}-  the  parties  in  Havre,  is  urged  as  supplying  this  original 
want  of  authority  on  the  part  of  the  agent.     It  is  held  that  in  cases  of 


1006  DOKD    V.    BONNAFFEE.  [CHAP.  X. 

contracts,  made  between  persons  who  are  separated  from  each  other 
in  different  countries,  by  written  communication,  the  contracts  are 
considered  as  made  in  the  country-,  and  subject  to  its  laws,  where  the 
final  assent  has  been  given.  This  rule  is  laid  down  bj'  Casaregis,  in 
his  one  hundred  and  seventN'-ninth  discourse,  and  was  recognized  by 
the  Supreme  Court  in  the  case- of  Whiston  v.  Stodder,  8  Mart.  95  [13 
Am.  Dec.  281].  In  case  of  a  contract  made  in  a  foreign  country,  by  an 
agent  without  authorit}-,  which  the  principal  at  home  afterwards  ratifies, 
the  contract  is  considered  as  made  in  that  foreign  countr}',  because  the 
ratification  relates  back  tempore  et  loco,  and  is  equivalent  to  an  original 
authority:  2  Casaregis,  p.  310,  discourse  179,  sec.  20.  The  property 
upon  which  the  assignments  were  to  operate,  so  far  as  this  case  is  con- 
cerned, must  be  considered  at  the  time  as  being  in  the  State  of  Missis- 
sippi or  of  New  York  ;  therefore,  there  can  be  no  question  as  to  the 
laws  by  which  the  eflTect  of  the  assignments,  in  relation  to  the  attaching 
creditor,  is  to  be  tested. 

Neither  of  the  assignments  purports  to  have  any  other  object  than 
an  equal  distribution  of  the  property  of  the  firm  in  the  United  States 
among  their  creditors,  without  discrimination,  or  to  make  an}'  appro- 
priation of  it,  except  that  which  the  law  of  France  and  of  Louisiana 
would  itself  make.  Their  pui'pose  was  laudable  in  every  point  of  view, 
and  one  which  the  laws  of  every  State  must  approve  and  encourage. 
We  think,  from  the  authorities  adduced,  that  the  assignments  are 
unquestionably  valid  under  the  laws  of  New  York.  We  are  bound  to 
consider  the  decisions  of  the  courts  of  the  last  resort  of  that  State  as 
evidence  of  what  the  law  is. 

The  .case  of  Cunningham  y.  Freeborn,  11  Wend,  241,  appears  to 
afford  a  complete  answer  to  the  objections  taken  by  the  counsel  of  the 
plaintiff,  to  the  validity  of  the  assignments.  The  district  judge,  in  his 
written  opinion,  has  given  his  conclusions  on  the  law  of  the  case,  in 
which  we  fully  concur.  The  several  grounds  of  objection  to  the  assign- 
ments have  been  examined  in  detail,  in  the  written  argument  of  the 
counsel  for  the  assignee.  As  the  questions  raised  involve  points  in  a 
jurisprudence  which  is  not  our  own,  we  do  not  feel  ourselves  called  upon 
to  do  more  than  give  the  result  of  our  investigations,  which  is  in  favor 
of  the  validity  of  the  assignments  under  the  law  by  which  they  are  to  be 
tested  ;  and  that  they  vest  the  propert}'^  conve^'ed  in  the  assignee,  sub- 
ject to  the  trusts,  for  the  benefit  of  all  the  creditors.  The  interest  thus 
created  can  not  be  defeated  by  the  attaching  creditor,  in  the  case  pre- 
sented to  us. 

The  judgment  of  the  District  Court  t's  therefore  affirmed,  unth  costs} 

1  Contra:  Shuenfeldt  v.  Junkermann,  20  Fed.  R.  357  (U.  S.  C.  C,  N.  D.  Iowa, 
1884.)  — Ed. 


SECT.  II.]       KUTLAND   AND   BURLINGTON    RAILROAD  V.  LINCOLN.      1007 


THE   RUTLAND   AND   BURLINGTON   RAILROAD   CO.   v. 
THE   Estate   of   WILLIAM   LINCOLN,   Appellant. 

Supreme  Court  of  Vermont.      1857. 

[29  Vt.  206.] 

Assumpsit  to  recover  assessments  upon  the  alleged  subscr||tion  of 
the  intestate  for  ten  shares  of  the  capital  stock  of  the  Rutland  and 
Burlington  Railroad  Company'.  The  case  came  to  the  count}-  court  by 
appeal  from  the  allowance  of  commissioners,  and  was  tried  by  jury 
upon  the  general  issue,  with  notice  that  said  subscription  was  not  made 
b}'  the  intestate  nor  by  his  authority,  at  the  March  Term,  1856. — 
PiERPOiNT,  J.,  presiding.  The  plaintiffs  introduced  the  subscription 
book  of  the  Rutland  and  Burlington  Railroad  Company,  which  was 
according  to  the  onh'  form  of  subscriptions  for  stock  ever  circulated  by 
said  company',  whereon  was  written  at  the  foot  of  the  contract  for  the 
taking  of  stock  the  name  of  the  intestate,  as  follows  :  "  1845,  July  3, 
William  Lincoln — Ten  Shares,"  and  it  appeared  that  the  same  was  so 
written  by  one  John  Buckmaster.  The  plaintiffs  claimed  that  the  in- 
testate had  ratified  the  act  of  Buckmaster  in  so  signing  his  name,  and 
to  prove  this  offered  the  testimony  of  sundry  witnesses,  not  officers  or 
agents  of  said  railroad  company,  that  the  intestate,  after  such  signature 
by  Buckmaster,  had  said  to  them,  but  not  to  or  in  the  presence  of 
Buckmaster,  or  of  any  officer  or  agent  of  the  company,  that  he,  the 
intestate,  had  taken  one  thousand  dollars  of  stock  in  said  railroad  com- 
pany, with  other  evidence  that  the  name  of  the  intestate  appeared  in 
no  other  place  on  their  subscription  books.  The  defendant  objected  to 
the  admission  of  this  testimon}-,  but  the  court  admitted  it.  The  de- 
fendant thereupon  requested  the  court  to  charge  the  jury  that  if  they 
should  find  that  Buckmaster  had  no  authority  to  sign  the  name  of  the 
intestate  at  the  time  of  signing,  the  mere  declaration  of  the  intestate  as 
alcove,  made  subsequently,  did  not  amount  to  a  ratification  or  confirma- 
tion of  the  act  of  Buckmaster  in  making  such  signature.  The  court 
declined  so  to  charge  the  jury,  but  charged  them  that  although  they 
should  find  that  Buckmaster  had  no  authority  to  sign  the  name  of  the 
intestate  at  the  time  it  was  signed,  yet  the  intestate  could  afterwards 
confirm  and  ratify  the  act  of  Buckmaster  so  as  to  make  him,  the  intes- 
tate, liable  as  a  subscriber ;  and  that  if  the  jury  should  find  from  the 
evidence  that  the  intestate,  after  such  signing,  spoke  of  the  stock  as 
his  own  and  claimed  it  as  his,  it  was  a  sufficient  ratification  and  con- 
firmation of  the  act  of  Buckmaster  in  making  the  subscription  to  entitle 
the  plaintiffs  to  recover  in  this  action.  The  defendant  offered  as  a 
witness  in  his  behalf  Mrs.  Anna  Bucklin,  wife  of  William  Bucklin.  It 
appeared  that  Mrs.  Bucklin  was  an  lieir  at  law  of  the  estate  of  the  in- 
testate, and  interested  in  the  suit,  and  that  William  Bucklin,  her  hus- 
band, had  signed  the  bond  with  the  administrator  to  tlic  probate  court 


1008  PHILADELPHIA,    ETC.    RAILROAD    CO.    V.    COWELL.  [CHAP.  X. 

which  was  given  on  the  appeal  to  this  court,  and  that  tlie  administrator 
had  abandoned  the  defence  of  the  suit  and  that  it  was  defended  by  the 
heirs,  and  that  the  said  William  Bucklin  had  given  a  bond  to  the  ad- 
ministrator to  indemnify  him  against  any  liability  on  account  of  the 
suit.  The  plaintiffs  objected  to  the  admission  of  the  witness  and  she 
was  excluded  by  the  court.  Verdict  for  the  plaintiffs.  Exceptions  by 
the  defendants. 

Mober^  &  Chittenden,  for  the  defendants. 

S.  II.  Hodges,  for  the  plaintiffs. 

The  opinion  of  the  court  was  delivered  by 

Redfield,  C.  J.  This  case  seems  to  have  been  tried  in  such  a  man- 
ner as  to  be  practically  about  as  advantageous  to  the  defendant,  per- 
haps, as  if  the  charge  had  been  strictly  and  technically  correct.  The 
testimon}'  no  doubt  tended  very  strongl}'  to  show  either  an  original 
authority  in  Buckmaster  to  make  the  subscription  in  the  defendant's 
name,  or  that  he  had  consented  to  assume  it.  But  the  specific  question 
raised,  and  upon  which  the  court  were  requested  to  charge  was,  whether 
Lincoln's  declaration  to  mere  strangers  that  he  had  such  an  amount  of 
stock  in  the  defendant's  company  amounted  to  such  a  ratification  of  the 
subscription.  And  it  is  not  claimed  in  argument  that  it  did.  We  think 
it  impossible,  therefore,  to  affirm  the  charge  without  making  presump- 
tions so  remote  that  they  seem  to  us  somewhat  unnatural. 

And  treating  the  trial  as  coming  under  the  present  statute,  as  we 
must,  the  testimony  of  Mrs.  Bucklin  is  not  objectionable  on  the  ground 
either  of  her  interest  or  that  of  her  husband.  And  there  is  nothing  in 
the  case  to  show  that  her  testimony'  tended  to  violate  any  confidence 
between  husband  and  wife.  We  see  no  reason,  therefore,  why  she  was 
not  a  competent  witness. 

Judgment  reversed  and  case  remanded. 


THE  PHILADELPHIA,   WILMINGTON,   AND   BALTIMORE 
RAILROAD  CO.    v.    COWELL. 

Supreme  Court  of  Pennsylvania.  1857. 

[28  Pa.  329.] 

Error  to  the  District  Court  of  Philadelphia. 

This  was  an  action  brought  on  the  17th  December,  1855,  by  John 
W.  Cowell,  to  recover  from  The  Philadelphia,  Wilmington,  and  Balti- 
more Railroad  Company  the  sum  of  $1700,  being  the  dividends  declared 
b}'  the  defendants  on  four  hundred  shares  of  stock  in  the  company  held 
by  the  plaintiff.  The  plaintiff  resided  in  England,  and  on  the  stock 
owned  by  him  the  company  declared  dividends,  which  were  payable  as 
follows  :    1st  October,  1849,  $600  ;  Ist  April,  1850,  $300  ;  1st  October, 


SECT.  II.]         PHILADELPHIA,    ETC.    KAILItOAD    CO.    V.    COWELL.  1009 

1850,  $400  ;  1st  Ai)iil,  1851,  $400.  The  dividends  thus  declared  were 
a[)plied  to  the  payment  of  a  subscription  to  forty  shares  of  stock,  made 
by  (/.  H.  Pusher  for  and  on  account  of  the  plaintiff  Covvell. 

The  authority-,  under  which  the  subscription  was  made,  and  the  divi- 
dends appropriated  to  the  payment  of  the  stock  subscrii)tion,  is  set 
forth  in  tlie  following  offer  of  testimony  :  — 

"  1.  That  C.  H.  Fisher,  Esq.,  had  before  the  year  1848,  through 
Horace  Binney,  Esq.,  an  acquaintance  of  the  plaintiff,  and  with  whom 
he  consulted  as  to  his  affairs  and  investments,  communicated  with  the 
plaintifl^then  a  stockholder  to  the  amount  of  four  hundred  shares,  in 
respect  to  the  condition  and  affairs  of  the  company  ;  and,  that  in  his 
replies,  the  plaintiff  had  expressed  his  thanks  for  the  information  so 
received. 

"  2.  That  the  condition  and  prosperity  of  the  defendants  made  it 
imperatively  necessary  for  the  protection  of  the  interests  of  the  stock- 
holders and  the  preservation  of  the  property  of  the  company,  that  the 
plaintiff  should,  with  the  other  stockholders,  subscribe  for  new  stock  of 
the  company-,  authorized  to  be  issued  to  the  extent  of  ten  per  cent  upon 
the  amount  then  held  b}-  each  stockholder,  and  thus  to  raise  a  sum 
necessary  to  meet  impending  liabilities. 

"3.  That  C.  H.  Fisher,  Esq.,  acting  in  good  faith  for  the  plaintiff, 
and  after  consultation  with  Horace  Binne}'  and  Clement  C.  Biddle, 
Esqrs.,  acquaintances  and  friends  of  the  plaintiff,  did  subscribe  for 
him  to  forty  shares  of  the  new  stock  so  to  be  issued,  and  by  reason 
thereof,  together  with  the  subscription  of  other  stockholders,  the  affairs 
of  the  compan}-  were  retrieved,  and  the  earnings  of  the  road  were  ren- 
dered applicable  to  the  dividends  sued  for.  That  having  so  subscribed, 
he  did,  upon  the  16th  day  of  December,  1848,  address  the  plaintiff, 
advising  him  of  what  had  been  done,  and  in  the  manner  as  b}-  said 
letters  will  appear. 

"4.  That  the  said  letters  were  received  in  due  course  of  mail  by 
the  plaintiff,  on  or  about  the  29th  daj-  of  December,  1848.  That  the 
plaintiff  made  no  repl}-  thereto,  and  took  no  step  and  gave  no  notice  of 
an}-  kind  whatever,  in  disaffirmance  of  the  act  of  said  Fisher  until  on 
or  about  the  17th  da}-  of  November,  1855. 

"5,  That  the  dividends  sued  for  in  this  action,  were  applied  in  pur- 
suance of  said  subscription  to  the  payment  thereof,  and  the  cash  balance 
due  was  paid  by  the  said  Fisher,  and  the  certificate  for  said  forty  shares 
was  thereupon  delivered  to  said  Fisher  on  behalf  of  John  W.  Cowell, 
the  plaintiff." 

The  court  rejected  the  evidence  so  offered. 

The  defendants,  having  pleaded  the  Statute  of  Limitations,  asked 
the  Court  to  charge  the  jury  that  — 

The  dividend  of  October  1st,  1849,  having  been  declared  and  made 
payable  more  than  six  years  before  the  institution  of  this  suit,  the 
Statute  of  Limitations  was  a  bar  to  [)laintiff's  recovery  of  the  dividend 
of  that  date. 

64 


1010  PHILADELPHIA,   ETC.    RAILROAD    CO.    V.    CO  WELL.         [CHAP.  X. 

Tliis  the  Court  declined  doing,  but  charged  that  the  Statute  of  Limi- 
tations did  not  appl}'  to  the  dividend  declared  by  defendants  so  due  on 
the  1st  October,  1849  ;  but  that  the  plaintiff  was  entitled  to  receive  the 
same,  though  more  than  six  3-ears  had  elapsed  between  the  declaring  of 
the  said  dividend  and  the  institution  of  this  suit. 

The  jury  found  for  the  plaintiff  $1726.07.  A  rule  for  a  new  trial 
was  refused,  and  judgment  entered  upon  the  verdict. 

The  defendants  thereupon  removed  the  cause  to  this  court,  and  as- 
signed for  error  — 

1.  That  the  court  erred  in  rejecting  the  evidence  submitted^ by  the 
defendants  as  contained  in  their  offer. 

2.  That  the  court  erred  in  refusing  the  instruction  praj-ed  for,  that 
the  Statute  of  Limitations  was  a  bar  to  the  recovery  of  the  amount  of 
the  dividend  declared  on  the  1st  October,  1849,  being  more  than  six 
years,  before  suit  brought. 

St.  G.  T.  CampheU,  for  plaintiff  in  error. 

H.  J.  Williams,  for  defendant  in  error. 

Woodward,  J.  The  question  presented  by  the  first  error  assigned, 
is  not  whether  the  evidence  offered  and  rejected  proved  the  plaintifTs 
ratification  of  Fisher's  subscription  ;  but  whether  it  tended  to  prove  it. 

Suppose  the  court  had  admitted  the  evidence  and  the  jur}'  had  found 
the  plaintiff's  assent  and  ratification,  could  he  have  expected  us  to  re- 
verse the  judgment  on  the  ground  that  a  question  of  fact  had  been 
submitted  and  found  without  any  evidence? 

Could  it  have  been  said  that  the  facts  set  down  in  the  bill  of  excep- 
tion, full}'  proved,  were  no  evidence  of  ratification ;  that  thej'  were  so 
entirely  irrelevant  as  to  be  unworthy  of  consideration  by  rational  minds 
in  connection  witli  such  a  question  ;  that  that  question  stood  just  as  far 
from  demonstration  after  such  evidence  as  before? 

Unless  this  could  have  been  said,  and  must  have  been  said  in  the 
event  supposed,  the  judgment  now  before  us  must  be  reversed  ;  for 
the  question  here  is,  in  essence  and  substance,  exactly  the  same  as  it 
would  have  been  then. 

If  this  evidence  might  have  satisfied  the  jurv  ;  that  is,  if  it  were  of 
a  qualit}'  to  persuade  reasonable  men  that  Cowell  did  assent  to  Fisher's 
assumed  agency  after  he  had  full  knowledge  of  what  had  been  done,  it 
should  have  been  admitted.  The  question  in  the  cause  was  for  the  jury, 
and  not  the  court.  But  the  fact  to  be  inquired  for,  like  all  mental  con- 
ditions and  operations,  could  be  established  only  inferential!}'.  We 
judge  of  the  mind  and  will  of  a  party  only  from  his  conduct,  and  if  he 
have  done  or  omitted  nothing  which  may  fairly  be  interpreted  as  indica- 
tive of  the  mental  purpose,  there  is  indeed  no  evidence  of  it  for  either 
court  or  jury  ;  but  if  his  conduct,  in  given  circumstances,  affords  any 
ground  for  a  presumption  in  respect  to  the  mental  purpose,  It  is  for  a 
jury  to  define,  limit,  and  apply  the  presumption. 

The  most  material  circumstance  in  the  offer  was  the  silence  of  Mr. 
Cowell.    Fully  informed  about  the  last  of  the  3'ear  1848  as  to  what  had 


SECT.  II.]         PHILADELPHIA,   ETC.    RAILROAD    CO.    V.    COWELL.  10  U 

been  done  iu  bis  name,  and  the  motives  and  reasons  for  doing  it,  he  did 
not  condescend  to  repl}-  for  nearly  seven  j-ears.  It  is  insisted  that  this 
fact,  even  when  taken  in  connection  with  the  other  circumstances  in  the 
offer,  was  no  evidence  of  liis  intention  to  assent  to  the  new  subscription. 

The  argument  admits  that  where  the  relation  of  principal  and  agent 
has  once  existed,  or  where  the  property  of  a  principal  has  with  his 
consent  come  into  the  hands  and  possession  of  a  third  party,  the  prin- 
cipal is  bound  to  give  notice  that  he  will  not  sanction  the  unauthorized 
acts  of  the  agent,  performed  in  good  faith  and  for  his  benefit ;  but  it  is 
said,  and  truly,  that  Mr.  Plsher  had  never  been  an  authorized  agent  of 
the  plaintiff  for  an}'  purpose,  and  that  the  plaintiff's  propert}-  had 
never  been  entrusted  to  him.  It  is  on  this  distinction  that  the  learned 
counsel  sets  aside  the  case  of  The  Kentucky  Bank  v.  Combs,  7  Barr, 
546,  and  indeed  all  of  the  authorities  relied  on  b}'  the  defendants. 

I  do  not  understand  counsel  to  mean  that  there  can  be  no  valid  rati- 
fication unless  one  of  the  conditions  specified  —  either  prior  agency-  or 
possession  of  principal's  property  —  has  existed,  but  that  silence  after 
knowledge  of  the  act  done,  is  evidence  of  ratification  only  in  such  cases. 
It  must  be  admitted  that  the  act  of  a  mere  stranger  or  volunteer  is 
capable  of  ratification,  for  all  the  authorities  are  so  ;  but  the  argument 
is  that  the  silence  of  the  part}'  to  be  affected,  whatever  the  attending 
circumstances,  cannot  amount  to  ratification  of  the  act  of  a  stranger. 

In  Wilson  v.  Tumraan,  6  M.  &  G.  242,  C.  J.  Tindal,  on  the  authority 
of  several  old  cases,  considered  that  the  effect  of  a  ratification  was  de- 
pendent on  the  question  whether  the  person  assuming  to  act,  had  acted 
for  another  and  not  for  himself.  The  act,  it  would  seem,  cannot  be 
ratified  unless  it  was  done  in  the  name  of  the  person  ratifying.  Ratuin 
quis  habere  non  potest,,  quod  ijjshfs  nomine  non  est  gestmn.  And  the 
general  rule  is  thus  expressed  in  the  Digest,  50  —  Si  quis  ratura  habue- 
rit  quod  gestum  est,  obstringitur  mandati  actione. 

If,  then,  the  principle  of  law  be  that  I  can  ratify  that  only  which  is 
done  in  vas  name,  but  when  I  have  ratified  whatever  is  done  in  my 
name,  I  am  bound  for  it  as  In'  the  act  of  an  authorized  agent,  it  is 
apparent  that  m}'  silence  in  view  of  what  has  been  done  is  to  be  re- 
garded simply  as  evidence  of  ratification,  more  or  less  expressive, 
according  to  the  circumstances  in  which  it  occurs.  It  is  not  ratification 
of  itself,  but  only  evidence  of  it  to  go  to  the  jury  along  with  all  the 
circumstances  that  stand  in  immediate  connection  with  it.  Among 
these,  the  prior  relations  of  the  parties  are  very  important.  If  the 
part}'  to  be  charged  had  been  accustomed  to  contract  through  the 
agency  of  the  individual  assuming  to  act  for  him,  — or  had  intrusted 
property  to  his  keeping, —  or  if  he  were  a  child  or  servant,  partner  or 
factor,  the  relation,  conjnnctionis  favor,  would  make  silence  strong  evi- 
dence of  assent. 

On  the  other  hand,  if  there  had  been  no  former  agency,  and  no 
peculiarity  whatever  in  the  prior  relations  of  the  parties,  silence  —  a 
refusal  to  respond  to  a  mere  impertinent  interference  —  would  be  a 


1012  PHILADELPHIA.    ETC.    KAILROAD    CO.    V.    CDWELL.  [CHAP.  X 

veiy  inconclusive,  but  not  an  absolutely  irrelevant  circumstance.  The 
man  who  will  not  speak  when  he  sees  his  interests  atfected  by  another, 
must  be  content  to  let  a  jury  interpret  his  silence. 

It  is  a  clear  principle  of  equity  that  where  a  man  stands  by  knowingly, 
and  suffers  another  person  to  do  acts  in  his  own  name  without  any  op- 
position or  objection,  he  is  presumed  to  have  given  authority'  to  do  those 
acts.  Semper,  qui  non  prohibet pro  se  i/itervenire,  raandare  credit ur : 
Story's  Agency,  §  89. 

We  do  not  apply  the  full  strength  of  this  principle  when  we  rule  that 
the  plaintiff's  silence,  in  connection  with  the  circumstances  offered,  was 
evidence  fit  for  the  consideration  of  a  jurj'  on  the  question  of  ratifica- 
tion. If  mental  assent  ma}'  be  inferred  from  circumstances,  silence 
may  indicate  it  as  well  as  words  or  deeds.  To  say  tliat  silence  is  no 
evidence  of  it,  is  to  sa}'  there  can  be  no  implied  ratification  of  an  un- 
autliorized  act  — ■  or  at  the  least  to  tie  up  the  possibilit}'  of  ratification  to 
the  accident  of  prior  relations.  Neither  reason  nor  authority  justifies 
such  a  conclusion.  A  man  who  sees  what  has  been  done  in  his  name 
and  for  his  benefit,  even  b}-  an  intermeddler,  has  the  same  power  to 
ratif}'  and  confirm  it  that  he  would  have  to  make  a  similar  contract  for 
himself,  and  if  the  power  to  ratify  be  conceded  to  him,  the  fact  of  rati- 
fication must  be  provable  by  the  ordinary  means. 

For  these  reasons  the  distinction  on  which  the  argument  for  the 
defendant  in  error  rests  seems  to  us  to  be  too  narrow. 

The  prior  relations  of  the  parties  lend  great  importance  to  the 
fact  of  silence,  but  it  is  a  mistake  to  make  the  competency  of  the  fact 
dependent  on  those  relations.  I  am  aware  that  Livermore  cites  with 
approbation,  p.  50,  the  opinion  of  civil  law*  writers,  tliat  where  a  vol- 
unteer has  officiously  interfered  in  the  affairs  of  another  person,  and 
made  a  contract  for  him  without  anj'  color  of  authorit}',  such  other 
person  is  not  bound  to  answer  a  letter  from  the  intermeddler,  inform- 
ing him  of  the  contract  made  in  his  name,  nor  is  his  silence  to  be  con- 
strued into  ratification.  But  it  is  to  be  remembered  that  such  writers 
are  not  laying  down  a  rule  of  evidence  to  govern  trials  by  jury,  but  are 
declaring  rather  the  effect  upon  the  judicial  mind  of  the  party's  silence. 

It  is  one  thing  to  sa}'  that  the  law  will  not  imply  a  ratification  from 
silence,  and  a  very  different  thing  to  sa}'  that  silence  is  a  circumstance 
from  which,  with  others,  a  jury  ma}'  imply  it.  Because  evidence  does 
not  raise  a  presumption  so  violent  as  to  force  itself  upon  the  judge  as 
a  conclusion  of  law,  is  the  evidence  therefore  incompetent  to  go  to  a 
jury  as  ground  for  a  conclusion  of  fact?  Xo  writer  with  a  common 
law  jury  before  his  eyes,  has  ever  maintained  the  affirmative  of  this 
proposition.  If  it  could  be  established  it  would  abolish  that  institution 
entireh',  and  refer  every  question  and  all  evidence  to  the  judicial 
conscience. 

But  it  is  time  now  to  remark  that  this  case  is  far  from  being  that 
of  a  mere  volunteer  or  intermeddler.  True  it  is  that  Mr.  Fisher  had 
not  an3'  pi'oper  authority'  to  make  the  new  subscription,  but  Messrs. 


SKCT.  II.]  PHILADELPHIA,    ETC.    KAILHOAD    CO.    V.    COWELL.  1013 

Binney  and  Biddle,  the  friends  and  correspondents  of  the  plaintiff,  had 
consulted  him  in  reference  to  the  plaintiff's  interests  in  this  railroad 
company,  and  as  a  director  of  the  company  he  stood  in  some  sort  as  a 
representative  and  trustee  of  the  plaintiff,  who  was  in  a  foreign  country, 
and  without  any  authorized  agent  here.  The  proposition  that  every 
stockholder  should  subscribe  new  stock  to  the  extent  of  10  per  cent 
was  designed  ;  and  as  the  event  proved,  was  well  designed,  to  retrieve 
the  fortunes  of  the  company,  but  it  was  necessary-  to  its  success  that 
every  stockholder  should  come  into  the  arrangement.  The  emergency 
was  pressing,  and  Mr.  Fisher,  manifestly  acting  in  perfect  good  faith, 
made  the  subscription  for  the  plaintiff,  which  he  believed  the  plaintiff 
would  not  hesitate  to  make  if  personallv  present. 

When  the  plaintiff  was  fully  informed  that  a  sagacious  financier,  to 
whom  his  chosen  friends  and  correspondents  bad  referred  his  interests, 
and  who  stood  in  the  fiduciary  relation  of  a  director,  had  jjledged  him 
for  a  new  subscription,  wliich  circumstances  seemed  to  justify  and  de- 
mand, I  sav  not  that  he  was  bound  b}-  it,  nor  even  that  he  was  bound 
to  repudiate  it,  but  that  his  delay  for  near  seven  years  either  to  approve 
or  repudiate,  was  a  fact  fit  to  be  considered  by  a  jury  on  the  question 
of  ratification.  The  subscription  was  made  in  the  plaintiff's  name,  and 
accepted  by  the  company  as  liis,  and  it  does  not  appear  that  they  knew 
Fisher  was  acting  without  autliorit}-.  The  offer  was  to  show  that  it  was 
highh'  beneficial  to  the  plaintiff.  It  was  then  such  an  act  as  is  capable 
in  law  of  being  ratified.  The  plaintiff"  might  make  it  his  own  by  adop- 
tion. Did  he  adopt  it?  He  did  if  he  ever  gave  it  mental  assent.  How 
could  the  compau}'  show  assent  b}-  anything  short  of  a  written  agree- 
ment, if  not  b}-  evidence  of  the  nature  of  that  in  the  bill  of  exception  ? 
The  medium  of  proof,  where  a  mental  purpose  is  the  object  of  inquiry, 
must  conform  to  the  mode  of  manifestation.  To  sa}-  that  you  may 
prove  assent,  but  mav  not  give  the  circumstances  in  evidence  from 
which  it  is  to  be  implied,  is  to  say  nothing. 

Strongl\-  persuasive  as  we  consider  the  offered  evidence,  we  do  not 
put  our  judgment  so  much  upon  the  strength  as  upon  the  nature  of  it. 
We  think  it  was  calculated  to  convince  a  jury  that  the  plaintiff  did 
indeed  assent  to  and  approve  of  what  Mr.  Fisher  had  done  in  his  be- 
half, and  therefore  it  should  have  been  received  and  submitted. 

If  they  should  find  from  it  the  assent  and  ratification  of  the  plaintiff, 
the  subscription  became,  as  between  him  and  the  company,  a  valid  con- 
tract, and  on  his  failure  to  pay  the  instalments,  the  compan}'  had  a  right 
to  apply  thereto  the  accruing  dividends  on  his  old  stock. 

When  lie  pays  what  remains  unpaid  upon  the  instalments,  he  will  be 
entitled  to  his  certificates  of  stock. 

The  defence  under  the  Statute  of  Limitations  was  not  well  taken.  It 
may  be  well  doubted  whether  under  our  Acts  of  Assembh'  any  incorpo- 
rated company  can  set  up  the  Statute  of  Limitations  against  a  stock- 
holder's dividends.  It  certainl}-  cannot  be  done  until  after  a  demand 
and  refusal,  or  notice  to  a  sharcliolder  that  his  right  to  dividends  is 


1014  A>'COXA    V.    MARKS.  [CHAP.  X. 

denied.  But  here,  so  far  from  such  notice  having  been  given,  the 
companv  recognize  the  plaintirl's  right  to  the  dividends,  and  claim  to 
have  applied  them  to  his  use.  The  statute  can  have  no  place  in  such 
a  defence. 

The  judgment  is  reversed  and  a  venire  de  novo  aicarded? 


A>'CONA  V.  MARKS. 

Exchequer.     1862. 

p  H.  i-  y.  6S6.] 

The  first  count  of  the  declaration  slated  that  the  defendant,  on.  &c., 
by  his  check  or  order  for  the  payment  of  money,  directed  to  Messrs. 
Attwood  and  Co.,  bankers,  required  them  to  pay  to  bearer  £100  ;  and 
the  plaintiff  became  the  bearer  of  the  check.  And  the  said  Messrs. 
Attwood  and  Co.  have  not  paid  the  said  check,  whereof  the  defendant 
had  due  notice,  but  did  not  pay  the  same.  Second  count :  that  the 
defendant,  on,  &c.,  by  his  promissory  note,  now  overdue,  promised  to 
pay  to  his  own  order  £7o  two  months  after  date,  and  the  defendant  in- 
dorsed the  said  note  to  Herbert  Wright,  who  indorsed  the  same  to  the 
plaintiff,  but  the  defendant  did  not  pay  the  same.  The  third  count  was 
on  a  promissory  note  for  £li'0,  made  and  indorsed  by  and  to  the  same 
parties.  The  fourth  count  was  on  a  bill  of  exchange  drawn  by  H. 
Wright  upon  and  accepted  by  the  defendant  for  payment  to  the  order 
of  H.  Wright  of  £100  three  months  atler  date,  and  indorsed  by  H. 
Wright  to  the  plaintiff. 

Pleas  (inter  alia).  To  first  count :  that  the  plaintiff  never  was  the 
bearer  or  possessed  of  the  said  check  before  suit.  To  second  count: 
that  the  said  note  was  not  indorsed  to  the  plaintiff  as  alleged.  To  the 
same  count:  that  the  plaintiff  was  not  at  the  commencement  of  this 
suit  the  lawful  holder  of  the  said  note.  To  third  count :  pleas  similar 
to  those  pleaded  to  the  second  count.  To  fourth  count:  that  the 
bill  was  not  indorsed  to  the  plaintiff  as  alleged-  To  same  count : 
that  the  plaintiff  was  not  at  the  commencement  of  this  suit  the  lawful 
holder  of  the  said  bill.     Issues  thereon. 

At  the  trial,  before  Martix.  B..  at  tlie  London  Sittings  after  last 
Trinity  Term,  it  appeared  that  the  defendant,  who  was  a  tradesman  at 
Birmingham,  had  indorsed  and  delivered  to  one  Herbert  Wright,  an 
attorney  and  money  lender  at  Birmingham,  the  promissory  notes,  bill 
of  exchange  and  check  mentioned  in  the  declaration,  upon  his  discount- 
ing them  for  the  defendant     Wright,  in  his  evidence,  stated  that  he 

»  See  Prince  r.  Qark,  1  B.  &  C.  1S6  (1S2.3) ;  Ward  r.  Williams,  26  HI  4-47  ( 1S61  j , 
Foster  r.  Rockwell,  104  Mass.  167  (1870) ;  Peck  r.  Ritchey,  66  Mo.  114.  120  11877); 
ExceHor  Stone  Co..  1  111.  App.  27-3  (1878) ;  Hevn  r.  O'Hagen,  60  ilich.  150  (1886).— Eft 


6ECT.  n.] 


AXCOXA   'C.   MAEKS. 


101^ 


came  to  London  and  saw  Mr.  Tucker,  a  member  of  the  firm  of  Greville 


aud  Tucker,  attome 
agents.  He  hsi  vr;- 
change,  au'.; 
in  an  actio li  u^vu  :.. 
the  autliorit}'  of  Anc 
to  receive  these  bills  U 


-don,  who  had  occasi'.  :„%  his 

:  check,  promissory  ncv  of  ex- 

jker  to  find  a  client  who  would  lend  his  name 
T         '  '^aid  there  was  no  difficulty,  as  he  bad 
-.iffj.     Wright  then  said.  -'I  withy  oa 
A^c^i-u  and  to  bring  an  i,  r.  them  in 

his  name  ;  '  and  Wright  then  indorsed  and  delive:  :o  Tucker. 

On  a  previous  occasion,  Wright  had  a  bUl  of  the  defendant's,  and  asked 
Tucker  if  be  could  find  a  client  who  would  allow  his  name  to  be  x,-.    '  ' 
an  action  u[>on  it,  when  Tucker  mentioned  Ancona,  the  plaintif 
the  action  was  brought  in  his  name  and  the  money  reeorered.     Tuvrier 
corroborat^i  Wrt^'Lt'?  .?tav:r:-nt.  and  said  that  at  the  time  be  had  a 
gt'  :o  use  his  name  for  such  purposes. 

was  issued.     H  ' 

•r,    atiO.   ---  .   it.       XliC 

i  -  -     ;  used  hl^  __._.    .fore.     He 

as  used  in  this  action  ontil  after  it 

-   '.old  of  it  he  was    •!]]'_   *  '  -^ 

mr     W  rigrhf.     and     1 ;.  ^  X 


had  no  knc  - 
was  brooghi.   . 
shoald  vo  on. 

G: 


He 


y interest 


in  or  possessio:. 


not  have  brooe'i: 

be/'r   T  •  ..:,:,  on  a  day  anterl 
th"  :'  "   r  secmriti-e-    _' 

r '..        :  -      -         -  -        -- 


bj  Wright  to  Tucker 


as  no  evidence  to  support  (ftw  tiie 


recorer. 


II 


1016  KELNER   V.    BAXTER.  [CHAP.  X. 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  rule  ought  to  be  dis- 
charged. There  is  no  doubt  that  the  plaintiff,  at  the  time  the  action 
was  brought,  did  not  know  that  his  name  was  used,  but  the  question  is 
whether,  the  securities  having  been  delivered  to  Greville  and  Tucker 
(who  on  a  previous  occasion  had  the  plaintiffs  permission  to  use  his 
name)  for  the  purpose  of  the  action  being  brought  on  them  in  the  plain- 
tiff's name,  and  the  action  having  been  so  brought,  and  the  plaintiff  hav- 
ing subsequently  ratified  the  proceedings,  he  is  entitled  to  retain  the 
verdict.  1  think  he  is.  In  my  opinion  it  makes  no  difference  whether  the 
ratification  is  before  action,  or  after.^  .  .  .  Hule  discharged." 


KELNER  V.  BAXTER  and  others. 
Common  Pleas.     1866. 

[L.  R.  2  C.  P.  174.] 

The  declaration  was  for  goods  sold  and  delivered,  goods  bargained 
and  sold,  interest,  and  upon  accounts  stated. 

The  defendants  pleaded, — first,  never  Indebted, — secondly,  pay- 
ment,—  thirdly,  as  to  the  claim  for  goods  sold  and  delivered,  and 
goods  bargained  and  sold,  that,  by  agreement  in  that  behalf  made  b}^ 
and  between  the  plaintiff  and  the  defendants  on  behalf  of  a  joint  stock 
compan}'  then  proposed  to  be  formed  under  the  Joint  Stock  Companies 
Act,  1862,  and  to  be  called  The  Gravesend  Royal  Alexandra  Hotel 
Company,  Limited,  the  goods  were  sold  to  and  bought  and  received  by 
the  defendants  upon  the  terms  that  if  the  company-,  when  registered, 
should  adopt  the  said  contract,  and  agree  with  the  plaintiff  to  pa^-  the 
agreed  price  of  the  said  goods,  the  goods  should  become  the  property 
of  the  company,  and  the  defendants  should  be  exonerated  and  dis- 
charged from  all  further  liability  in  respect  thereof,  and  that  such 
agreement  of  the  company  should  be  accepted  by  the  plaintiff  in  full 
satisfaction  and  discharge  of  all  such  liability  ;  that  the  company  was 
registered  by  the  nhme  of  The  Gravesend  Alexandra  Hotel  Company', 
Limited,  and,  when  so  registered,  by  agreement  in  that  behalf  made 
with  the  plaintiff,  adopted  the  first-mentioned  contract ;  and  thereupon, 
and  by  and  with  the  consent  of  the  defendants,  the  goods  became  the 
property  of  the  company,  and  the  plaintiff  and  the  company  eventually 
agreed  with  each  other  to  be  bound  by  the  first-mentioned  contract, 
and  the  company  agreed  with  the  plaintiff  to  pa}'  to  the  plaintiff  the 
agreed  price  of  the  goods,  and  the  plaintiff  then  before  the  action 
accepted  the  agreement  so  made  with  the  company  in  full  satisfaction 
and  discharge  of  the  claims  therein  pleaded  to. 

^  A  passage  not  dealing  -with  ratification  has  been  omitted. 

Channell,  Wilde,  and  Martin,  BB.,  delivered  concurring  opinions. — Ed. 

2  Contra:    Witteubrock  v.  Bellmer,  57  Cal.  12  (1880).  — Ed. 


SECT.  II.]  KKLNER    V.    BAXTER.  1017 

Fourth  plea,  to  the  claim  for  goods  sold  and  delivered,  and  goods 
bargained  and  sold,  that,  by  agreement  in  that  behalf  made  by  and 
between  the  plaintiff  and  the  defendants  on  behalf  of  a  joint  stock 
company  then  proposed  to  be  formed  under  the  Joint  Stock  Companies 
Act,  18G2,  and  to  be  called  The  Gravesend  Royal  Alexandra  Hotel 
Company,  Limited,  the  said  goods  were  sold  to  and  bouglit  and  re- 
ceived by  the  defendants  on  behalf  of  the  said  intended  company ; 
that  the  said  company  was  formed  and  registered  under  the  said  act  by 
the  name  of  The  Gravesend  Hotel  Compan}',  Limited  ;  and  that  after- 
wards and  before  this  suit,  b}'  agreement  in  that  behalf  made  by  and 
between  the  plaintiff,  the  defendants,  and  the  said  company,  the  goods 
were  transferred  to  and  became  the  property  of  the  companj-,  and  the 
compan}'  agreed  with  tlie  plaintiff  to  pa3-  the  price  thereof,  and  the 
plaintiff  accepted  and  received  such  agreement  on  the  part  of  the  com- 
pany in  full  satisfaction  and  discharge  of  the  claims  therein  pleaded  to. 
Issue  thereon. 

At  the  trial  before  Erle,  C.  J.,  at  the  sittings  in  London  after  last 
Trinity  Term,  the  following  facts  appeared  in  evidence :  The  plaintiff 
was  a  wine  merchant,  and  the  proprietor  of  the  Assembly  Rooms  at 
Gravesend.  In  August,  18G5,  it  was  proposed  that  a  company  should 
be  formed  for  establishing  a  joint-stock  hotel  company  at  Gravesend, 
to  be  called  The  Gravesend  Royal  Alexandra  Hotel  Company,  Limited, 
of  which  the  following  gentlemen  were  to  be  the  directors,  viz.,  Mr.  L. 
Calisher,  Mr.  T.  H.  Edmands,  Mr.  M.  Davis,  Mr.  Macdonald,  Mr. 
Hulse,  Mr.  N.  J.  Calisher  (one  of  the  defendants),  and  the  plaintiff. 
The  plaintiff  was  to  be  the  manager  of  the  proposed  company,  and  Mr. 
Dales  (another  of  the  defendants)  was  to  be  the  permanent  architect. 
One  part  of  the  scheme  was  that  the  company  should  purchase  the 
premises  of  the  plaintiff  for  a  sum  of  £5,000,  of  which  £3,000  was  to  be 
paid  in  cash,  and  £2,000  in  paid  up  shares,  the  stock,  etc.,  to  be  taken 
at  a  valuation  ;  and  this  was  carried  into  effect  and  completed,  the  other 
defendant  (Baxter)  being  the  nominal  purchaser  on  behalf  of  the  com- 
pan}'.  In  December  a  prospectus  was  settled.  On  the  9th  of  January, 
1866,  a  memorandum  of  association  was  executed  bj'  the  plaintiff  and 
the  defendants  and  others. 

Pending  the  negotiations  the  business  had  been  carried  on  by  the 
plaintiff,  and  for  that  purpose  additional  stock  had  been  purchased  by 
bim  ;  and  on  the  27th  of  January,  1866,  an  agreement  was  entered 
into  for  the  transfer  of  this  additional  stock  to  the  company,  in  the 
following  terms  :  — 

January  27th,  1866. 

To  John  Dacier  Baxter,  Nathan  Jacob  Calisher,  and  John  Dales,  on 

behalf  of  the  proposed  Gravesend  Royal  Alexandra  Hotel  Company', 

Limited. 

Gentlemkn,  —  I  hereb}-  propose  to  sell  the  extra  stock  now  at  tht 

Assembly  Rooms,  Gravesend,  as  per  schedule  hereto,  for  the  sum  oi 

£900,  payable  on  the  28th  of  February,  1866. 

'turned)     John  Kelneb. 


1018  KELNEK   V.    BAXTER.  [CHAP.  X. 

Then  followed  a  schedule  of  the  stock  of  wines,  etc.,  to  be  purchased, 
and  at  the  end  was  written,  as  follows  :  — 

To  Mr.  John  Kelner. 

giR^  —  We  have  received  your  offer  to  sell  the  extra  stock  as  above, 
and  hereby  agree  to  and  accept  the  terms  proposed. 

(Signed)     J.  D.   Baxter, 

N.    J.    CA1.ISHER, 

J.  Dales, 
On  behalf  of  the  Gravesend  Royal  Alexandra 
Hotel  Company,  Limited. 

In  pursuance  of  this  agreement  the  goods  in  question  were  handed 
over  to  the  company,  and  consumed  by  them  in  the  business  of  tlie 
hotel ;  and  on  the  1st  of  February  a  meeting  of  the  directors  took 
place,  at  which  the  following  resolution  was  passed:  ''That  the  ar- 
rangement entered  into  by  Messrs.  Caiisher,  Dales,  and  Baxter,  on 
behalf  of  the  compan3-,  for  the  purchase  of  the  additional  stock  on  the 
premises,  as  per  list  taken  by  Mr.  Bright,  the  secretary,  and  pointed 
out  by  Mr.  Kelner,  amounting  to  £900,  be,  and  the  same  is  heieby 
ratified."  There  was  also  a  subsequent  ratification  by  the  company, 
viz.,  on  the  11th  of  April,  but  this  was  after  the  commencemeut  of 
the  action. 

The  articles  of  association  of  the  company  were  duly  stamped  on  the 
13th  of  Februar}',  and  on  the  20th  the  company  obtained  a  certificate 
of  incorporation  under  the  25  &  26  Vict.  c.  89. 

The  company  having  collapsed,  the  present  action  was  brought 
against  the  defendants  upon  the  agreement  of  the  27th  of  January. 

On  the  part  of  the  defendants  oral  evidence  was  tendered  for  the 
purpose  of  showing  that  it  never  was  intended  that  they  should  be 
personally  liable  ;  but  his  lordship  rejected  it.  It  was  then  submitted 
that,  inasmuch  as  the  agreement  was  not  entered  into  by  the  defend- 
ants personally,  but  only  as  agents  for  the  hotel  compan}',  they  thereby 
incurred  no  personal  obligation  to  the  plaintiff,  who  was  himself  one  of 
the  promoters. 

For  the  plaintiff  it  was  insisted  that,  there  being  no  company  in 
existence  at  the  time  of  the  agreement,  the  parties  thereto  had  rendered 
themselves  personally  liable  ;  and  that  there  could  be  no  ratification  of 
the  contract  by  a  subsequent!}'  created  company. 

A  verdict  was  taken  for  the  plaintiff  for  £900,  subject  to  leave  re- 
served to  the  defendants  (upon  giving  security)  to  move  to  enter  a  non- 
suit, on  the  ground  that  the  agreement  of  the  27th  of  January  did  not 
make  them  personally  liable. 

Nov.  6,  1866.  Sfi/mour,  Q.  C,  obtained  a  rule  nisi  accordingly, 
and  also  for  a  new  trial  on  the  ground  of  misdirection  on  the  part  of 
the  learned  judge,  "  in  not  allowing  witnesses  to  be  called  to  contradict 
the  plaintiff  as  to  the  defendants'  personal  liability." 

Nov.  13,  14.     J.  Brouv/,  Q.  C,  and  Thesi(/er,  showed  cause. 

Seymour,  Q.  C,  in  support  of  the  rule. 


SECT.  II.]  KELXEK   V.    BAXTEE.  1019 

Erle,  C.  J.^  a  difficulty  has  arisen  because  the  plaintiff  has  at  the 
head  of  the  paper  addressed  it  to  the  defendants,  "on  behalf  of  the 
proposed  Gravesend  Ro3al  Alexandra  Hotel  Company,  Limited,"  and 
the  defendants  have  repeated  those  words  after  their  signatures  to  the 
document ;  and  the  question  is,  whether  this  constitutes  au}'  ambiguity 
on  the  face  of  the  agreement,  or  prevents  the  defendants  from  being 
bound  by  it.  I  agree  that  if  the  Gravesend  Royal  Alexandra  Hotel 
Company  had  been  an  existing  company  at  this  time,  the  persons  who 
signed  the  agreement  would  have  signed  as  agents  of  the  company. 
But,  as  there  was  no  company  in  existence  at  the  time,  the  agreement 
would  be  wholly  inoperative  unless  it  were  held  to  be  binding  on  the 
defendants  personally.  The  cases  referred  to  in  the  course  of  the  argu- 
ment fully  bear  out  the  proposition  that,  where  a  contract  is  signed 
by  one  who  professes  to  be  signing  '•  as  agent,"  but  who  has  no  princi- 
pal existing  at  the  time,  and  tlie  contract  would  be  altogether  inopera- 
tive unless  binding  upon  the  person  who  signed  it,  he  is  bound  thereby : 
and  a  stranger  cannot  b}"  a  subsequent  ratification  relieve  him  from 
that  responsibilit}'.  When  the  compan}-  came  afterwards  into  exist- 
ence it  was  a  totall}'  new  creature,  having  rights  and  obligations  from 
that  time,  but  no  rights  or  obligations  b}-  reason  of  anything  which 
might  have  been  done  before.  It  was  once,  indeed,  thought  that  an 
inchoate  liability  might  be  incurred  on  behalf  of  a  proposed  company, 
which  would  become  binding  on  it  when  subsequentl}'  formed  ;  but  that 
notion  was  manifestly  contrar}-  to  the  principles  upon  which  the  law  of 
contract  is  founded.  There  must  be  two  parties  to  a  contract ;  and 
the  rights  and  obligations  which  it  creates  cannot  be  transferred  bj-  one 
of  them  to  a  third  person  who  was  not  in  a  condition  to  be  bound  bj-  it 
.at  the  time  it  was  made.  The  histor}'  of  this  company  makes  this  con- 
struction to  ni}'  mind  perfectly  clear.  It  was  no  doubt  the  notion  of 
all  the  parties  that  success  was  certain  ;  but  the  plaintiff  parted  with 
his  stock  upon  the  faith  of  the  defendants'  engagement  that  the  price 
agreed  on  should  be  paid  on  the  day  named.  It  cannot  be  supposed 
that  he  for  a  moment  contemplated  that  the  payment  was  to  be  con- 
tingent on  the  formation  of  the  company  b}-  the  28th  of  February-. 
The  paper  expresses  in  terms  a  contract  to  bu}'.  And  it  is  a  cardinal 
rule  that  no  oral  evidence  shall  be  admitted  to  show  an  intention  differ- 
ent from  that  which  appears  on  the  face  of  the  writing.  I  come,  there- 
fore, to  the  conclusion  that  the  defendants,  having  no  principal  who 
■was  bound  originall}',  or  who  could  become  so  hy  a  subsequent  ratifi- 
cation, were  themselves  bound,  and  that  the  oral  evidence  offered  is 
not  admissible  to  contradict  the  written  contract. 

"WiLLES,  J.  I  am  of  the  same  opinion.  Evidence  was  clearly  inad- 
missible to  show  that  the  parties  contemplated  that  the  liabilit}'  on  this 
contract  should  rest  upon  the  compan}'  and  not  upon  the  persons  con- 
tracting on  behalf  of  the  proposed  compau}-.  The  utmost  it  could 
amount  to  is,  that  both  parties  were  satisfied  at  the  time  that  all  would 

1  After  stating  the  case.  —  Ed. 


1020  KELNER   V.    BAXTER.  [CHAP.  X 

go  sinoothl}-,  and  consequently  that  no  liabilit}-  would  ensue  to  the 
defendants.  The  contract  is,  in  substance,  this:  "I,  the  plaintitf, 
agree  to  sell  to  3'ou,  the  defendants,  on  behalf  of  the  Gravesend  Royal 
Alexandra  Hotel  Company,  my  stock  of  wines;  "  and,  "  We,  the  de- 
fendants, have  received  30ur  offer,  and  agree  to  and  accept  the  terms 
proposed  ;  and  you  shall  be  paid  on  the  28th  of  February  next."  Who 
is  to  pay?  The  compan}',  if  it  should  be  formed.  But,  if  the  com- 
pau}-  should  not  be  formed,  wlio  is  to  pa}'?  That  is  tested  b}-  the  fact 
of  the  immediate  delivery  of  the  subject  of  sale.  If  payment  was  not 
made  by  the  compau}-,  it  must,  if  by  anybodj-,  be  b}-  the  defendants. 
That  brings  one  to  consider  whether  the  compan\-  could  be  legally 
liable.  I  apprehend  the  compan}-  could  only  become  liable  upon  a  new 
contract.  It  would  require  the  assent  of  the  plaintiff  to  discharge  the 
defendants.  Could  the  company  become  liable  by  a  mere  ratification  ? 
Clearly  not.  Ratification  can  only  be  b}-  a  person  ascertained  at  the 
time  of  the  act  done,  —  by  a  person  in  existence  either  actually  or  in 
contemplation  of  law ;  as  in  the  case  of  assignees  of  bankrupts  and 
administrators,  whose  title,  for  the  protection  of  the  estate,  vests  by 
relation.  The  case  of  an  executor  requires  no  such  ratification,  inas- 
much as  he  takes  from  the  will.  It  is  unnecessary,  however,  to  pursue 
this  further.  In  addition  to  the  case  cited  at  the  bar,  I  would  refer  to 
Gunn  V.  London  and  Lancashire  Fire  Insurance  Company,  12  C.  B. 
N.  s.  694,  where  this  court,  upon  the  authorit}'  of  Payne  v.  New  South 
Wales  Coal  and  International  Steam  Navigation  Compan}',  10  Ex.  283, 
held  that  a  contract  made  between  the  projector  and  the  directors  of  a 
joint-stock  company  provisionally  registered,  but  not  in  terms  made 
conditional  on  the  completion  of  the  company,  was  not  binding  upon 
the  subsequent  completely  registered  company',  although  ratified  and 
confirmed  by  the  deed  of  settlement:  and  WiUiams,  J.,  said,  that, 
"  to  make  a  contract  valid,  there  must  be  parties  existing  at  the  time 
"who  are  capable  of  contracting."  That  is  an  authority  of  extreme  im- 
portance upon  this  point ;  and,  if  ever  there  could  be  a  ratification,  it 
was  in  that  case.  Both  upon  principle  and  upon  authority,  therefore, 
it  seems  to  me  that  the  companj'  never  could  be  liable  upon  this  con- 
tract; and,  as  was  put  by  my  lord,  construing  this  document  id  res 
magis  valeat  qiiam  pereat,  we  must  assume  that  the  parties  contem- 
plated that  the  persons  signing  it  would  be  personally  liable.  Putting  in 
the  words  "  on  behalf  of  the  Gravesend  Royal  Alexandra  Hotel  Com- 
pany," would  operate  no  more  than  if  a  person  should  contract  for  a 
quantity  of  corn  "on  behalf  of  my  horses."  As  to  the  suggestion 
that  there  should  have  been  a  special  count,  that  is  quite  a  mistake. 
There  need  not  be  a  special  count  unless  there  was  a  person  existing  at 
the  time  the  contract  was  made  who  might  have  been  principal.  The 
common  count  perfectly  well  represents  the  character  of  the  liability 
which  these  defendants  incurred.  It  is  quite  out  of  the  question  to 
suppose  that  there  was  any  mistake.  The  document  represents  the 
real  transaction  between  the  parties.  I  think  that  the  course  taken  at 
the  trial  was  perfectly  correct  and  that  the  rule  should  be  discharged. 


SECT.  11.]  GRANT   V.   BEARD.  1021 

Byles,  J.  I  am  of  the  same  opinion.  At  first,  I  must  confess,  I 
entertained  some  doubt,  the  contract  appearing  on  the  face  of  it  to 
have  been  entered  into  by  the  defendants  on  behalf  of  the  eompan}-. 
The  true  rule,  however,  is  that  stated  by  Mr.  Thesiger,  viz.,  that 
persons  who  contract  as  agents  are  generally  personally  responsible 
where  there  is  no  other  person  who  is  responsible  as  principal.  Sup- 
pose this  company  never  came  into  existence  at  all,  could  it  be  doubted 
tliat  these  defendants  must  be  held  to  have  bound  themselves  per- 
sonally? Then,  was  it  contemplated  that  the  liabilit}'  was  conditional 
only  until  the  company'  should  be  formed?  It  is  said  that  the  contract 
was  ratified  by  the  compan}'  after  it  came  into  existence.  There  could, 
however,  be  no  ratification.  Omnis  ratihabitio  retrotrahitur,  et  man- 
dato  priori  (Bqurparatur :  but  the  ratification  must  be  b}- an  existing 
person,  on  w^iose  behalf  the  contract  might  have  been  made  at  the 
time.  That  could  not  be  so  here :  a  subsequent  ratification  b}-  the 
company  could  onh'  be  with  the  assent  of  the  plaintiflT;  and  then  it 
would  be  a  new  contract.  Mr.  SeAMnour  contended  that  the  contract 
might  amount  to  a  personal  undertaking  on  the  part  of  the  defendants 
that  the  company  shall  pa}'.  That  would  make  them  equally  liable. 
An}'  objection  on  the  score  of  the  Statute  of  Frauds  would  be  cured 
by  the  Mercantile  Law  Amendment  Act  19  &  20  Vict.  c.  97.  In  no 
way  therefore,  in  which  it  can  be  put,  could  the  company  become 
responsible.^  Rule  discharged?' 


GRANT   V.    BEARD   et  al. 
Supreme  Court  of  New  Hampshire.     1870. 
»  [50  N.  H.  129.] 

Assumpsit,  to  recover  for  repairs  on  two  wagons.  The  plaintiff 
alleged  that  tlie  defendants'  father,  who  brought  the  wagons  to  be  re- 
paired, was  their  agent,  and  could  and  did  bind  them  to  pay  for  the 
repairs.  Whether  the  father  was  the  agent  of  the  defendants,  whether 
the  defendants  owned  the  wagons  or  received  any  benefit  from  the 
repairs,  and  whether  the  defendants  subsequently  assented  to  and  rati- 
fied the  contract,  w-ere  questions  in  dispute  on  which  the  evidence  was 
conflicting. 

The  plaintiff  testified  that  the  defendants'  father  told  him  that  he 
was  acting  as  agent  for  his  two  boys  in  the  army  (the  defendants). 

^  Keating,  J.,  delivered  a  concurrin^^  opinion.  — Ep. 

2  Ace. :  Scott  V.  Lord  Ebury,  L.  K.  2  C.  P.  255  (1867) ;  In  re  Empress  Engineering 
Co.,  16  Ch.  D.  125  (C.  A.  1881) ;  In  re  Northumberland  Avenue  Hotel  Co.,  33  Ch.  D. 
16  (1886). 

Contra:  Whitney  v.  Wyman,  101  U.  S.  392  (1879)  ;  Oakes  v.  Cattaraugus  Water 
Co.,  143  N.  Y.  4.30  (1894).  " 

See  Howard  v.  Patent  Ivory  Co.,  38  Ch.  D.  156,  164  (1888);  McArtliur  v.  Times 
Printing  Co.,  48  Minn.  319  (1892).  — Ed. 


1022  GRANT   V.    BEARD.  [CHAP.  X. 

The  plaintiff  further  testified  that  he  gave  the  credit  to  the  defendants, 
though  lie  charged  the  work  on  his  book  to  the  father,  because  he  did 
not  know  the  names  of  the  defendants. 

The  plaintiff's  evidence  tended  to  show  that  the  defendants,  in  their 
father's  lifetime,  some  time  after  the  repairs  were  made,  said  the  plain- 
tiff's bill  was  all  right ;  that  the^-  paid  part  of  it,  and  promised  to  pay 
the  balance. 

The  jur}'  were  instructed,  that  if  the  father  was  the  duly  authorized 
agent  of  the  defendants  to  make  the  contract  and  bind  them,  the  de- 
fendants would  be  liable  in  this  action. 

The  jur}'  were  also  instructed  that,  in  deciding  whether  the  father 
was  authorized  by  his  sons  (before  the  repairs  were  made)  to  make 
such  a  contract  as  their  agent,  the  jury  could  consider  the  subsequent 
assent  of  the  sons  (if  they  found  such  assent)  as  evidence,  from  which, 
if  the  jurj'  saw  fit,  they  might  find  that  the  father  was  authorized  to 
act  as  agent  when  he  got  the  repairs  done  ;  and  that,  so  far  as  this 
question  of  prior  authority  was  concerned,  the  assent  was  evidence 
competent  to  be  considered  against  the  defendants,  whether  they  owned 
the  wagons  or  received  any  benefit  from  the  repairs,  or  not. 

Among  other  things  the  jury  were  further  instructed  that,  if  they 
found  that  the  defendants  did  not  authorize  their  father  to  make  the 
contract  as  their  agent,  but  afterwards  assented  to  what  he  had  done, 
their  assent  would  not  make  them  liable  in  this  action  unless  they 
owned  the  wagons  at  the  time  the}"  were  repaired,  or  received  some 
benefit  from  the  repairs.     To  this  last  instruction  the  plaintiff  excepted. 

The  plaintiff  requested  the  following  instruction:  "If  the  jury  find 
that  the  father  procured  the  credit  as  the  agent,  either  actual  or 
assumed,  of  the  defendants,  and  the  credit  was  really  given  to  them, 
then  the  subsequent  ratification  by  the  defendants  will  bind  them,  even 
though  they  may  not  have  received  the  benefit  of  the  credit." 

The  instruction  was  not  given,  and  the  plaintiff  excepted.  Verdict 
for  the  defendants. 

Motion  to  set  aside  the  verdict. 

J.  H.  Benton^  Jr.,  for  the  plaintiff. 

Fletcher  <&  JTei/wood,  for  the  defendants. 

Foster,  J.  The  ratification,  upon  full  knowledge  of  all  the  circum- 
stances of  the  case,  of  an  act  done  by  one  who  assumes  to  be  an  agent, 
is  equivalent  to  a  prior  authority.  By  such  ratification  the  party  will 
be  bound  as  full}',  to  all  intents  and  purposes,  as  if  he  had  originally 
given  express  authority  or  direction  concerning  the  act. 

A  parol  contract  may  be  ratified  by  an  express  parol  recognition  of 
the  act,  or  by  conduct  implying  acquiescence,  or  by  silence  when  the 
party,  in  good  faith,  ought  to  speak.  And  so  the  principal  may  be 
estopped  to  deny  the  agent's  original  authority.  Story  on  Agency, 
§  239;  Metcalf  on  Contracts,  112;  Hatch  v.  Taylor,  10  N.  H.  538; 
Despatch  Line  v.  Bellamy  Manf.  Co.,  12  N.  H.  232  ;  Davis  v.  School 
District,  44  N.  H.  399  ;  Warren  v.  Wentworth,  45  N.  H.  564  ;  Forsyth  r. 
Day,  46  Me.  194  ;  Ohio  &  Mississippi  R.  Co.  v.  Middleton,  20  111!  629. 


SECT.  II.]  GRANT    V.    BEARD.  1023 

Such  ratification  relates  back  to  aud  incorporates  the  original  con- 
tract or  transaction,  so  that,  as  between  the  parties,  their  rights  and 
interests  are  to  be  considered  as  arising  at  the  time  of  the  original  act, 
and  not  merely  from  the  date  of  the  ratification  ;  and  a  suit  to  enforce 
the  obligation  assumed  by  the  party  who  ratifies  is,  to  all  intents  and 
purposes,  a  suit  founded  upon  the  original  act  or  contract,  and  not  on 
the  act  of  ratification.  Davis  v.  School  District,  before  cited  ;  Low  v. 
Railroad,  40  N.  H.  '2Si  ;  Doggett  v.  Emerson,  3  Story,  737  ;  Mason  v. 
Crosby,  1  Woodb.  &  M.  342  ;  Clark's  Executors  v.  Van  Riemsdyk,  9 
Cr.  153  ;  Culver  v.  Ashley,  19  Pick.  301  ;  Fors3'th  v.  Day,  before  cited. 

Therefore  the  original  consideration  ajjplies  to  the  ratification,  thus 
made  equivalent  to  an  original  contract,  and  supports  the  implied  prom- 
ise upon  which  the  present  action  is  founded. 

The  ratification  operates  directl3',  and  not  nierel}-  as  presumptive  evi- 
dence that  the  act  was  originally  done  by  the  authority-  of  the  defend- 
ants ;  and  therefore  it  is  unnecessary  to  consider  whether  or  not  the 
evidence  tends  to  show  an  original  authority.  The  subsequent  assent 
is,  per  se,  a  confirmation  of  the  agent's  act ;  and  there  is  no  valid 
distinction  between  a  ratification  of  the  agent's  act  and  a  direct  and 
original  promise  to  pay  for  the  services  rendered  by  the  plaintiflT. 
Wherever  there  would  have  been  a  consideration  for  the  original  en- 
gagement if  no  agent  or  party  assuming  to  act  as  agent  had  inter- 
vened, such  original  consideration  is  sufficient  to  sustain  the  act  of 
ratification. 

In  none  of  the  cases  cited  is  the  subject  of  a  new  consideration,  to 
support  the  ratification,  alluded  to  as  necessary  ;  but  the  logical  de- 
duction from  the  principle  that  the  ratification  relates  back  to  and 
covers  the  original  agreement,  is  wholly  inconsistent  with  such  a  prop- 
osition ;  and  the  contrary  doctrine  is  expressl}'  held  in  numerous 
cases.  Commercial  Bank  of  Buffalo  v.  Warren,  15  N.  Y.  Rep.  583, 
and  cases  cited. 

There  was  abundant  evidence,  in  the  present  case,  from  which  the 
jury  might  have  found  that  the  defendants  owned  the  wagons  and  re- 
ceived a  positive  benefit  from  the  repairs  ;  but  such  evidence  and  such 
finding  were  wholh'  unnecessary,  because  it  is  not  material  that  the 
party  making  the  promise  should  receive  a  benefit  from  the  other  party's 
act ;  it  is  sufficient  if  an}-  trouble,  prejudice,  expense,  or  inconvenience 
accrued  to  the  part}'  to  whom  the  promise  is  made.  Metcalf  on  Con- 
tracts, 163  ;  1  Parsons  on  Contracts,  431. 

We  are  therefore  of  the  opinion  that  the  instruction  of  the  court  to 
the  jury  ''that  if  they  found  that  the  defendants  did  not  authorize 
their  father  to  make  the  contract  as  their  agent,  but  afterwards 
assented  to  what  he  had  done,  their  assent  would  not  make  them  liable 
unless  they  owned  the  wagons  at  the  time  they  were  repaired,  or  re- 
ceived some  benefit  from  the  repairs,"  was  erroneous  ;  and  for  this 
reason  the  verdict  must  be  set  aside,  and  a 

Neiv  trial  granted. 


1024  BROOK  V.   HOOK.  [CHAP.  X. 


BROOK  V.   HOOK. 

Exchequer.     1871. 

[L.  R.  6  Ex.  89.] 

Declaration  on  a  promissory  note.  Plea:  traversing  the  making 
of  the  note.     Issue. 

At  the  trial  before  Martin,  B.,  at  the  Bristol  Summer  Assizes, 
1870,  the  following  facts  were  proved :  In  Juh',  1868,  Richard 
Jones,  a  brother-in-law  of  the  defendant,  applied  to  the  plaintiff  for 
a  loan  of  £50.  The  plaintiff  declined  to  lend  the  money  unless  a 
substantial  name  was  given  as  security.  Jones  said  that  he  tliought 
the  defendant  would  join  him  in  a  note,  and  one  was  soon  afterwards 
given  to  the  plaintiff,  purporting  to  be  signed  by  Jones  and  the  de- 
fendant, which  was  renewed  and  eventually  partly  paid  off  by  Jones. 
On  the  7th  of  November,  1869,  there  was  a  balance  of  £20  remaining 
due,  and  on  that  day  the  plaintiff  received  by  post  from  Jones  the 
note  now  sued  on,  which  was  in  these  terms:  — 

Yatton,  Nov.  7,  1869.  Three  months  after  date  we  jointl}'  and 
severally  promise  to  pay  Mr.  Brook,  or  his  order,  the  sum  of  £28  for 

value  received. 

Richard  Hook. 
Richard  Jones. 

On  the  17th  of  December,  1869,  whilst  the  note  was  still  current, 
the  plaintiff  saw  the  defendant,  who  denied  his  signature.  The  plain- 
tiff then  said  that  it  must  be  a  forgery  by  Jones,  and  that  he  would 
consult  a  lawyer  as  to  taking  criminal  proceedings  against  him.  The 
defendant  replied  that  he  would  rather  pay  the  money  than  that  Jones 
should  be  prosecuted,  and,  subsequently,  at  the  plaintiff's  instance, 
signed  the  following  memorandum,  at  the  same  time  again  denying 
that  he  had  ever  signed,  or  given  Jones  authority  to  sign,  the  note  :  — 

Memorandum ;  that  I  hold  myself  responsible  for  a  bill,  dated 
Nov.  7th,  1869,  for  twenty  pounds,  bearing  my  signature  and  Richard 
Jones',  in  favor  of  Mr.  Brook.     Huntspill,  Dec.  17th,  1869. 

Richard  Hook. 

It  was  not  disputed  that  the  signature  to  the  note  was  forged,  or 
that  the  defendant  had,  in  fact,  signed  this  memorandum.  The 
learned  judge  directed  the  jury  that  the  plaintiff  was  entitled  to  the 
verdict,  if  the  defendant  had  signed  the  memorandum,  the  construc- 
tion of  the  document  being,  in  his  judgment,  a  question  for  him,  and 
his  opinion  being  that  it  amounted  to  a  ratification  of  the  contract 
professedly  made  in  the  defendant's  name  on  the  face  of  the  note.  A 
verdict  was  accordingly  entered  for  the  plaintiff.  In  Michaelmas 
Term,   1870,   a  rule  was  obtained  by  the  defendant,   calling  on   the 


SECT.  II.]  BROOK    V.    HOOK.  1025 

plaintiff  to  show  v;\\y  there  should  not  be  a  new  trial,  on  the  ground 
that  the  verdict  was  against  the  evidence,  and  for  misdirection  in  this, 
that  the  learned  judge  directed  the  jury  that  the  only  question  for 
them  was,  whether  the  memorandum  of  the  17th  of  December  was 
signed  b}'  the  defendant. 

iLingdon,  Q.  C,  Collins,  and  R.  D.  Bennett  showed  cause. ^ 

Lopes,  Q.  C,  and  Poole,  in  support  of  the  rule.^ 

Cur.  adv.  rult. 

Kelly,  C.  B.^  Upon  this  evidence  it  has  been  contended  on  behalf 
of  the  plaintiff  that  this  paper  was  a  ratification  of  the  making  of  the 
note  by  the  defendant,  and,  upon  the  principle  omnis  ratihahitio 
retrotrahitur  et  mandato  priori  cequiparatnr,  the  jury  were  directed 
to  find  that  the  note  was  the  note  of  the  defendant,  and  that  the  plain- 
tiff was  entitled  to  the  verdict. 

I  am  of  opinion  that  this  verdict  cannot  be  sustained,  and  that  the 
learned  judge  sliould  have  directed  a  verdict  for  the  defendant;  or  at 
least,  have  left  a  question  to  the  jurj'  as  to  the  real  meaning  and  effect 
of  the  memorandum  and  the  conversation  taken  together ;  and  this, 
first,  upon  the  ground  that  this  was  no  ratification  at  all,  but  an  agree- 
ment upon  the  part  of  the  defendant  to  treat  the  note  as  his  own,  and 
become  liable  upon  it,  in  consideration  that  the  plaintiff  would  forbear 
to  prosecute  his  brother-in-law  Jones ;  and  that  this  agreement  is 
against  public  polic}'  and  void,  as  founded  npon  an  illegal  considera- 
tion. vSecondly,  the  paper  in  question  is  no  ratification,  inasmuch  as 
the  act  done  —  that  is,  the  signature  to  the  note  —  is  illegal  and  void  ; 
and  that  although  a  voidable  act  may  be  ratified  b}'  matter  subsequent, 
it  is  otherwise  when  an  act  is  originally  and  in  its  inception  void. 

Man}'  cases  were  cited  to  show  that  where  one  sued  upon  a  bill  or 
note  has  declared  or  admitted  that  the  signature  is  his  own,  and  has 
thereby  altered  the  condition  of  the  holder  to  whom  the  declaration  or 
admission  has  been  made,  he  is  estopped  from  denying  his  signature 
npon  an  issue  joined  in  an  action  upon  the  instrument.  But  here  there 
was  no  such  declaration  and  no  such  admission  ;  on  the  contrary,  the 
defendant  distinctly  declared  and  protested  that  his  alleged  signature 
was  a  forger}' ;  and  although  in  the  paper  signed  by  the  defendant  he 
describes  the  bill  as  bearing  his  own  signature  and  Jones',  I  am  of 
opinion  that  the  true  eflJect  of  the  paper,  taken  together  with  the  pre- 
vious conversation,  is,  that  the  defendant  declares  to  the  plaintiff: 
"  If  you  will  forbear  to  prosecute  Jones  for  the  forgery  of  my  signa- 
ture, I  admit  and  will  be  bound  by  the  admission,  that  the  signature 
is  mine."  This,  therefore,  was  not  a  statement  by  the  defendant  that 
the  signature  was  his,  and  which,  being  believed  by  the   plaintiflf",  in- 

^  In  the  course  of  this  argument,  Kelly,  C.  B.,  said  :  "  The  defendant  could  not 
ratify  au  act  which  did  not  profess  to  be  done  for  him  or  on  his  account."  —  Ed. 

^  In  the  course  of  this  argument,  Channell,  B.,  said:  "The  doctrine  of  estoppel 
\&  quite  distinct  from  that  of  ratification,  and  is  based  on  different  premises."  —  Ed. 

^  After  stating  the  case.  —  Ed. 

66 


1026  BROOK    V.    HOOK.  [CHAP.  X. 

cliiced  hiiu  to  take  the  note,  or  in  any  way  alter  his  condition  ;  but, 
on  the  contrar}-,  it  amounted  to  the  corrupt  and  illegal  contract  before 
mentioned,  and  worked  no  estoppel  precluding  the  defendant  from 
showing  the  truth,  which  was  that  the  signature  was  a  forgery,  and 
that  the  note  was  not  his  note. 

In  all  the  cases  cited  for  the  plaintiff  the  act  ratified  was  an  act 
pretended  to  have  been  done  for  or  under  the  authority  of  the  party 
sought  to  be  charged  ;  and  such  would  have  been  the  case  here,  if 
Jones  had  pretended  to  have  had  the  authority  of  the  defendant  to  put 
his  name  to  the  note,  and  that  he  had  signed  the  note  for  the  defend- 
ant accordingly,  and  had  thus  induced  the  plaintiff  to  take  it.  In  that 
case,  although  there  had  been  no  previous  authority,  it  would  have 
been  competent  to  the  defendant  to  ratify  the  act,  and  the  maxim 
before  mentioned  would  have  applied.  But  here  Jones  had  forged  the 
name  of  the  defendant  to  the  note,  and  pretended  that  the  signature 
was  the  defendant's  signature  ;  and  there  is  no  instance  to  be  found 
in  the  books  of  such  an  act  being  held  to  have  been  ratified  by  a  sub- 
sequent recognition  or  statement.  Again,  in  the  cases  cited,  the  act 
done,  though  unauthorized  at  the  time,  was  a  civil  act,  and  capable  of 
being  made  good  by  a  subsequent  re(;ognition  or  declaration  ;  but  no 
authority  is  to  be  found  that  an  act  which  is  itself  a  criminal  offence 
is  capable  of  ratification.  The  decision  at  nisi  prius  of  Mr.  Justice 
Crompton  referred  to  in  argument  is  inapplicable,  it  being  uncertain 
whether  the  plaintiff  in  that  case  knew  that  tlie  alleged  signature  of 
the  defendant  was  forged,  and  there  being  no  illegal  contract  in  that 
case  to  forbear  to  prosecute.  The  same  observation  ma}'  be  made 
upon  the  case  from  Ireland  cited  upon  the  authorit}'  of  Mr.  Justice 
Burton.  I  am  therefore  of  opinion  that  the  rule  must  be  made  abso- 
lute for  a  new  trial,  and  that  upon  this  evidence  the  jury  ought  to 
have  been  directed  to  find  a  verdict  for  the  defendant,  or  at  all  events 
(which  is  enough  for  the  purpose  of  this  rule)  that  if  any  question 
should  have  been  left  to  the  jury  it  ought  to  have  been  whether  the 
paper  and  the  conversation  taken  together  did  not  amount  to  the  ille- 
gal agreement  above  mentioned.  My  Brothers  Channell  and  Pigott 
concur  in  this  judgment.^  Mule  absolute.^ 

1  The  two  decisions  mentioned  in  the  above  opinion  are  a  nisi  prius  case  stated  in 
Ashpitel  V.  Bryan,  3  B.  «Sb  S.  474,  492-493  (1863);  and  a  case  in  the  Queen's  Bench 
of  Ireland,  Wilkinson  v.  Stoney,  I  Jebb  &  S.  509  (1839). 

Martin,  B.,  delivered  a  dissenting  opinion.  —  Ed. 

•■2  Ace:  Workman  v.  Wright,  33  Ohio  St.  405  (1878);  Shisler  v.  Vandike,  92  Pa. 
447  (1880). 

Contra:  Greenfield  Bank  v.  Crafts,  4  Allen,  447  (1862),  where  Dewey,  J.,  for  the 
court,  said :  — 

"  But  it  is  now  urged  on  the  part  of  the  defendants,  that  these  signatures  were 
incapable  of  such  adoption  or  ratification. 

"  As  to  this  objection,  it  is  clear  that  it  cannot  be  maintained  upon  the  ground  of  the 
form  of  the  signatures  merely.  This  form  of  signature,  though  not  the  more  usual 
manner  of  signing  by  an  agent,  does  not  prevent  the  person  whose  name  is  placed  on 
the  note  from  being  legally  holden,  upon  proof  that   the  signature  was   previously 


SECT.  II.]  BROOK    V.   HOOK.  1027 

authorized,  or  subsetjuently. adopted.  Various  similar  cases  will  be  found,  where  the 
party  has  beeu  charged,  where  the  uame  of  the  principal  appears  upon  the  note  ac- 
companied with  no  indications  of  the  fact  of  its  having  been  signed  by  another  hand. 
It  was  su  in  Watkins  v.  Vince,  2  Starli.  K.  368,  in  Merrifield  v.  Parritt,  11  Cush.  591, 
and  Brigham  v.  I'eters,  1  Gray,  147.  Wherever  such  signature  by  the  hand  of 
another  was  duly  authorized,  and  also  where  a  note  was  thus  executed  under  an 
honest  belief  by  the  party  signing  the  name  that  he  was  thus  authorized,  we  appre- 
hend that  there  can  be  no  doubt  that  it  would  be  competent,  in  the  case  first  stated, 
to  maintain  an  action  upon  the  -same,  upon  proof  of  the  previous  authority  thus  to 
sign  the  name,  or,  in  tlie  latter,  upon  proving  that  the  signature,  although  at  the 
time  unauthorized,  was  subsequently  adopted  and  ratified  by  the  party  whose  name 
appears  as  promisor.  Nor  is  it  necessary,  to  establish  a  ratification,  that  there  has 
been  any  previous  agency  created.  An  act  wholly  unauthorized  may  be  made  valid 
by  a  subsequent  ratification.  This  may  be  so,  although  the  actor  was  an  entire 
stranger  as  to  any  business  relations.     Culver  c.  Ashley,  19  Pick.  301. 

"  The  only  question  upon  this  part  of  the  case  is,  whether  a  signature,  made  by  an 
unauthorized  person  under  such  circumstances  as  show  that  the  party  placing  the 
name  on  the  note  was  thereby  committing  the  crime  of  forgery,  can  be  adopted  and 
ratified  by  any  acts  and  admissions  of  the  party  whose  name  appears  on  the  note, 
however  full,  and  intentionally  made  and  designed  to  signify  an  adoption  of  the 
signature.  The  defendants  insist  that  it  cannot,  by  such  evidence  as  would  in  other 
cases  warrant  the  jury  in  finding  an  adoption  ;  and  that  nothing  short  of  an  estoppel, 
having  the  element  of  actual  damage  from  delay  or  postponement,  occasioned  by  the 
acts  of  the  person  whose  name  is  borne  upon  the  note,  misleading  the  holder  of  it, 
will  have  this  effect.  As  to  the  person  himself  whose  name  is  so  signed,  it  is  difficult 
to  perceive  any  sound  reason  for  the  proposed  distinction,  as  to  the  effects  of  ratifying 
an  unauthorized  act,  in  the  two  supposed  cases. 

"  In  the  first  case,  the  actor  has  no  authority  any  more  than  in  the  la-^t.  The  con- 
tract receives  its  whole  validity  from  the  ratification.  It  may  be  ratified,  where  there 
was  no  pretence  of  agency.  Tn  the  other  case,  the  individual  who  presents  the  note 
thus  signed  passes  the  same  as  a  note  signed  by  the  promisor,  either  by  his  own 
proper  hand,  or  written  by  some  one  by  his  authority.  It  was  clearly  competent,  if 
duly  authorized,  thus  to  sign  the  note.  It  is,  as  it  seems  to  us,  equally  competent  for 
the  party,  he  knowing  all  the  circumstances  as  to  the  signature  and  intending  to 
adopt  the  note,  to  ratify  the  same,  and  thus  confirm  what  was  originally  an  unau- 
thorized and  illegal  act.  We  are  supposing  the  case  of  a  party  acting  with  full 
knowledge  of  the  manner  the  note  was  signed,  and  the  want  of  authority  on  tlie  part 
of  the  actor  to  sign  his  name,  but  who  understandingly  and  unequivocally  adopts  fhe 
signature,  and  assumes  the  note  as  his  own.  It  is  difficult  to  perceive  why  such  adop- 
tion should  not  bind  the  party  whose  name  is  placed  on  the  note  as  promisor,  as 
effectually  as  if  he  had  adopted  the  note  when  executed  by  one  professing  to  be 
authorized,  and  to  act  as  an  agent,  as  indicated  by  the  form  of  the  signature,  but  who 
in  fact  had  no  authority. 

"It  is  however  urged  that  public  policy  forbids  sanctioning  a  ratification  of  a  forged 
note,  as  it  may  have  a  tendency  to  stifle  a  prosecution  for  the  criminal  offence.  It 
would  seem,  however,  that  this  must  stand  upon  the  general  principles  applicable  to 
other  contracts,  and  is  only  to  be  defeated  where  the  agreement  was  upon  the  under- 
standing that  if  the  signature  was  adopted  the  guilty  party  was  not  to  be  prosecuted 
for  the  criminal  offence."  — Ed. 


1028  STRASSER   V.   CONKLIN.  [CHAP.  X. 


STRASSER   y.  CONKLIN. 

Supreme  Court  of  Wisconsin.     1882. 

[54   Wis.  102.] 

Appeal  from  the  Circuit  Court  for  Outagaraie  Count}'. 

The  facts  in  this  case  are  substantial!}'  as  follows :  One  Fisher  sold 
and  conveyed  to  one  Craney  two  lots  in  the  village  of  Seymour,  on 
•which  was  a  hotel.  Craney  gave  Fisher  his  promissory  notes  (pre- 
sumably for  purchase  money)  for  $2,300,  and  executed  to  Fisher  a 
mortgage  on  the  lots  to  secure  payment  thereof.  These  securities  are 
dated  February  26,  1876.  At  the  same  time  Fisher  assigned  to  Craney 
two  policies  of  insurance  for  $13,000  each,  on  the  personal  property 
in  such  hotel ;  and  the  policies,  in  case  of  loss,  were  made  payable  to 
Fisher  as  his  interest  might  appear.  March  13,  1876,  Fisher  sold  and 
transferred  the  notes  and  mortgage  of  Craney  to  the  plaintiff.  April 
1,  1876,  Craney  and  wife  conveyed  the  mortgaged  premises  to  the 
defendant.  The  consideration  expressed  in  the  deed  is  $4,000.  It 
contains  the  covenants  usual  in  a  warranty  deed,  with  the  following 
limitation  or  exception  to  the  covenants  of  seizin  and  against  incum- 
brances:  "Except  a  mortgage  thereon  for  the  sum  of  $2,300,  dated 
February  26,  1876."  At  the  same  time  Craney  assigned  to  the  de- 
fendant both  of  said  policies  of  insurance.  About  June  1st  one  of  the 
policies  expired,  and  the  defendant  procured  its  renewal.  Without 
the  direction  of  the  defendant,  the  renewed  policy  also  provided  that 
the  loss,  if  any,  should  be  payable  to  Fisher  as  his  interest  might  ap- 
pear. The  defendant  paid  Craney  $1,700  on  account  of  the  purchase 
money,  and  it  does  not  appear  that  he  gave  any  note  or  written 
acknowledgment  for  the  residue  thereof.  Soon  after  the  transactions 
above  stated,  the  hotel  building  and  some  or  all  of  the  insured  prop- 
erty was  destroyed  by  fire.  The  loss  was  afterwards  adjusted  between 
the  defendant  and  the  instu'ers  at  $795.27,  and  drafts  for  that  amount, 
payable  to  the  defendant  and  Fisher,  were  forwarded  to  the  agent  of 
the  insurance  companies  at  Appleton.  Fisher  had  ceased  to  have  any 
interest  in  the  insurance  money,  but  plaintiff  claimed  the  money  by 
virtue  of  the  assignment  to  him  of  the  Craney  mortgage.  Tlie  defend- 
ant claimed  that  the  money  belonged  to  him  absolutely,  and  refused 
to  assign  the  policies  to  the  plaintiff  upon  request  of  the  latter.  July 
3,  1876,  the  plaintiff  gave  one  Herman  Erb,  of  Appleton,  a  power  of 
attorney  authorizing  him  to  collect  and  receive  the  money  on  said 
policies.  Erb  thereupon  assumed  to  act  as  the  agent  of  the  plaintiff 
in  respect  to  his  whole  business  with  the  defendant,  and  entered  into 
an  agreement  with  the  latter  on  behalf  of  the  plaintiff,  to  the  effect 
that  the  plaintiff  should  receive  from  the  insurance  agent  $653.27  of 
the  insurance  money,  and  from  the  defendant  a  conveyance  of  the 
mortgaged    premises   in    full   payment   and   satisfaction  of   his   claim 


SECT.  II.]  STRASSER    V.    CONKLIN.  1029 

against  the  defendant  on  the  Crane}-  mortgage.  The  plaintiff  was 
soon  after  fully  informed  of  what  Erb  had  done  in  his  behalf,  and  the 
terms  of  the  settlement  negotiated  by  him  with  the  defendant.  Having 
such  information,  the  plaintiff  received  the  above  amount  of  insurance 
money  from  Erb,  but.  at  the  same  time,  denied  his  authority  to  make 
the  settlement,  and  refused  to  accept  the  conveyance  of  the  mortgaged 
premises  which  the  defendant  had  duly  executed  and  left  with  Erb. 
The  plaintiff  has  not  offered  to  return  such  insurance  money  to  the 
defendant,  but  has  applied  it  upon  the  Craney  mortgage.  This  action 
was  brought  to  recover  tlie  balance  of  the  mortgage  debt  of  82,300, 
after  deducting  therefrom  the  insurance  monej-  received  by  the  plain- 
tiff. It  is  alleged  in  the  complaint,  and  the  testimony  tends  to  prove, 
not  only  that  the  defendant  purchased  the  mortgaged  premises  subject 
to  the  Craney  mortgage,  and  that  the  amount  of  the  mortgage  debt 
was  deducted  from  the  pricD  agreed  to  be  paid  for  the  premises,  but 
also  that  he  expressly  agreed  with  Crane}-,  by  parol,  to  pa}-  such  debt. 
On  the  other  hand,  the  defendant  denies  in  his  answer  and  in  his 
testimony  that  he  made  an}-  such  agreement.  He  also  alleges  the 
settlement  with  Erb,  the  payment  to  the  plaintiff  of  the  insurance 
money,  and  the  execution  of  the  conveyance  of  the  mortgaged  prem- 
ises to  him,  as  an  accord  and  satisfaction  of  the  cause  of  action 
stated  in  the  complaint.  On  the  foregoing  facts,  which  appear  from 
the  pleadings  and  proofs,  the  court  directed  the  jury  to  find  for  the 
defendant,  and  they  did  so.  The  plaintiff  appealed  from  the  judgment 
entered  pursuant  to  the  verdict. 

JBarnes  &  Goodland,  for  the  appellant. 

Collins  c&  Pierce^  for  the  respondent. 

Lyon,  J.^  No  rule  of  law  is  more  firmly  established  than  the  rule 
that  if  one,  with  full  knowledge  of  the  facts,  accepts  the  avails  of  an 
unauthorized  treaty  made  in  his  behalf  by  another,  he  thereby  ratifies 
such  treaty,  and  is  bound  by  its  terms  and  stipulations  as  fully  as  he 
would  be  had  he  negotiated  it  himself.  Also,  a  ratification  of  part  of 
an  unauthorized  transaction  of  an  agent  is  a  confirmation  of  the  whole. 
If  authorities  are  desired  to  propositions  so  plain  as  these,  they  abound 
in  the  decisions  of  this  court,  many  of  which  are  cited  in  the  briefs  of 
counsel.  Under  the  above  rules  it  is  entirely  immaterial  whether  Erb 
was  or  was  not  authorized  to  make  the  settlement  with  the  defendant. 
If  not  authorized,  the  plaintiff,  by  receiving  the  money  with  full  knowl- 
edge of  the  terms  of  settlement,  ratified  and  confirmed  what  he  did, 
and  cannot  now  be  heard  to  allege  his  agent's  want  of  authority. 

It  will  not  do  to  say  that  the  plaintiff  was  entitled  to  the  money  he 
received,  and  might  receive  and  retain  it  as  his  own  without  regard  to 
the  settlement.  That  was  the  very  point  of  the  controversy  between 
the  parties.  Manifestly  each  claimed  the  money  in  good  faith,  and 
we  cannot  determine  from  the  record  before  us  which  was  entitled  to 

'  After  stating  the  case.  — Ed. 


1030  DEMPSEY   V.   CHAMBERS.  [CHAP.  X. 

it ;  and  it  is  immaterial  whether  one  or  the  other  was  so  entitled,  there 
bein<y  a  real  controvers}-  between  them  on  that  question.  It  was 
therefore  a  very  proper  case  for  negotiation  and  compromise  between 
them  ;  and  under  the  circumstances  they  must  both  be  held  bound  by 
the  settlement.  The  evidence  of  ratification  is  conclusive,  and  there 
was  nothing  for  the  jur}*  to  determine  in  that  behalf.  Hence,  the 
court  properly  directed  tlie  jury  to  find  for  the  defendant. 

The  foregoing  views  dispose  of  the  case,  and  render  it  unnecessary 
to  determine  the  question,  which  was  very  ably  argued  by  counsel, 
whether  a  parol  agreement  by  the  defendant  to  pay  the  mortgage  debt 
(if  he  so  agreed)  is  within  the  statute  of  frauds,  and  therefore  invalid. 
We  leave  that  question  undetermined. 

By  the  court.  —  The  judgment  of  the  circuit  court  is  affirmed.* 


DEMPSEY    V.  CHAMBERS. 
Supreme  Judicial  Court  of  Massachusetts.     1891. 

[15-t  Mass.  330.] 

Tort.  Trial  in  the  Superior  Court,  before  Thompson,  J.,  who 
allowed  the  following  bill  of  exceptions  :  — 

"  This  was  an  action  to  recover  for  an  injur}'  to  the  plaintiff's  build- 
ing, the  injury  consisting  in  the  breaking  of  a  light  of  plate  glass  in 
the  front  of  said  building.  The  plaintiff  claimed  that  the  glass  was 
broken  by  the  carelessness  of  the  defendant's  servant.  It  appeared  at 
the  trial,  that  the  glass  was  broken  by  one  McCuUock,  while  he  was 
engaged  in  delivering  a  load  of  coal  to  the  plaintiff,  which  had  been 
ordered  b}-  the  plaintiff  of  the  defendant,  who  was  a  dealer  in  coal. 
The  defendant  claimed,  and  offered  evidence  tending  to  show,  that  at 
the  time  of  the  deliver^'  of  the  coal  McCullock  was  not  his  servant  or 
in  his  employ,  and  undertook  to  deliver  the  coal  without  his  direction 
or  knowledge.  It  appeared  that  McCullock  was  a  member  of  the  de- 
fendant's household,  accustomed  to  be  in  and  about  the  defendant's 
coal-yard,  and  that  he  took  the  coal  from  the  defendant's  yard  and  on 
one  of  the  defendant's  wagons.  It  also  appeared  at  the  trial,  that, 
subsequent  to  the  delivery  of  the  coal  and  with  a  full  knowledge  of  the 
accident  and  of  the  delivery  of  the  coal  by  McCullock,  the  defendant 
presented  a  bill  for  the  coal  to  the  plaintiff,  and  claimed  that  tlie  plain- 
tiff owed  him  for  the  same.  The  court  found  as  a  fact  that  the  glass 
was  broken  by  the  carelessness  of  McCullock  in  delivering  the  coal, 
and  that  at  the  time  of  the  deliver}-  of  the  coal  McCullock  was  not  in 
fact  the  agent  or  servant  of  the  defendant,  or  in  his  emplo}-,  but  found 
that  the  delivery  of  the  coal  b}-  McCullock  was  ratified  by  the  defend- 

J  See  also  Jones  v.  National  Building  Association,  94  Pa.  215  (1880);  Beidman  « 
Goodell,  .56  Iowa,  592  (1881).  — Ed. 


SECT.  II.]  DEMPSEY   V.   CHAMBERS.  1031 

ant,  and  that  such  ratification  made  McCuUock  in  law  the  agent  and 
servant  of  the  defendant  in  the  delivery  of  the  coal.  And  the  court 
ruled  that  the  defendant,  by  his  ratification  of  the  delivery  of  the  coal 
by  McCullock,  became  responsible  for  his  negligence  in  the  delivery  of 
the  coal.  To  this  ruling  the  defendant  excepted,  and  now  excepts, 
and  prays  that  his  exceptions  may  be  allowed. 

"  The  case  was  tried  by  the  court  without  a  jury,  and  the  finding  of 
the  court  was  for  the  plaintiff." 

The  case  was  submitted  on  briefs  in  November,  1890,  and  after- 
wards, in  September,  1891,  was  submitted  on  the  same  briefs  to  all 
the  judges  except  Field,  C.  J. 

W.  S.  Knox,  for  the  defendant. 

J.  P.  Sweeney  and  II.  li.  Dotr,  for  the  plaintiff. 

Holmes,  J.  This  is  an  action  of  tort  to  recover  damages  for  the 
breaking  of  a  plate-glass  window.  The  glass  was  broken  by  the  neg- 
ligence of  one  McCullock,  while  delivering  some  coal  which  had  been 
ordered  of  the  defendant  by  the  plaintiff.  It  is  found  as  a  fact  that 
McCullock  was  not  the  defendant's  servant  when  he  broke  the  window, 
but  that  the  "  delivery  of  the  coal  by  McCullock  was  ratified  by  the 
defendant,  and  that  such  ratification  made  McCullock  in  law  the  agent 
and  servant  of  the  defendant  in  the  delivery  of  the  coal."  On  this 
finding  the  court  ruled  "that  the  defendant,  hy  his  ratification  of  the 
deliverj-  of  the  coal  by  McCullock  became  responsible  for  his  negligence 
in  the  delivery  of  the  coal."  The  defendant  excepted  to  this  ruling, 
and  to  nothing  else.  We  must  assume  that  the  finding  was  warranted 
b}'  the  evidence,  a  majority  of  the  court  being  of  opinion  that  the  bill 
of  exceptions  does  not  purport  to  set  forth  all  the  evidence  on  which 
the  finding  was  made.  Therefore,  the  only  question  before  us  is  as  to 
the  correctness  of  the  ruling  just  stated. 

If  we  were  contriving  a  new  code  to-da}',  we  might  hesitate  to  say 
that  a  man  could  make  himself  a  party  to  a  bare  tort,  in  an}'  case, 
merel}^  by  assenting  to  it  after  it  had  been  committed.  But  we  are  not 
at  liberty  to  refuse  to  carrj'  out  to  its  consequences  any  principle  which 
we  believe  to  have  been  part  of  the  common  law,  simplj'  because  the 
grounds  of  policy  on  which  it  must  be  justified  seem  to  us  to  be  hard 
to  find,  and  probabh"  to  have  belonged  to  a  different  state  of  society. 

It  is  hard  to  explain  why  a  master  is  liable  to  the  extent  that  he  is 
for  the  negligent  acts  of  one  who  at  the  time  really  is  his  servant,  act- 
ing within  the  general  scope  of  his  employment.  Probabl}'  master  and 
servant  are  "  fained  to  be  all  one  person  "  by  a  fiction  which  is  an  echo 
of  the  patrla  potestas  and  of  the  English  frankpledge.  B^-ington  v. 
Simpson,  134  Mass.  169,  170;  Fitz.  Abr.  Corone,  pi.  428.  Possibly 
the  doctrine  of  ratification  is  another  aspect  of  the  same  tradition. 
The  requirement  that  the  act  should  be  done  in  the  name  of  the  ratify- 
ing party  looks  that  wa}'.  New  England  Dredging  Co.  v.  Rockport 
Granite  Co.,  149  Mass.  381,  382  ;  Fulled-  &  Trimwoil's  Case,  2  Leon.  215, 
216  ;  Sext.  Dec.  5.  12,  De  Reg.  Jur.,  Reg.  9  ;  D.  43.  26.  13  ;  D.  43.  16- 
1,  §  14,  gloss.     See  also  cases  next  cited. 


1032  DEMPSEY   V.    CHAMBERS.  [CHAP.  X. 

The  earliest  instances  of  liability  by  way  of  ratification  in  the  Eng- 
lish law,  so  far  as  we  have  noticed,  were  where  a  man  retained 
property  acquired  through  the  wrongful  act  of  another.  Y.  B.  30  Ed.  I. 
1,  128  (Rolls  ed.) ;  38  Lib.  Ass.  223,  pi.  9  ;  s.  c.  38  Ed.  III.  18,  En- 
gettement  de  Garde.  See  Plowd.  8  ad  Jin.,  27,  31  ;  Bract,  fol.  158  b, 
159  a,  171  b;  12  Ed.  IV.  9,  pi.  23.  But  in  these  cases  the  defend- 
ant's assent  was  treated  as  relating  back  to  the  original  act,  and  at  an 
earl3'  date  the  doctrine  of  relation  was  carried  so  far  as  to  hold  that, 
where  a  trespass  would  have  been  justified  if  it  had  been  done  b}-  the 
authorit}'  b}'  which  it  purported  to  have  been  done,  a  subsequent  rati- 
fication might  justify  it  also.  Y.  B.  7  Hen.  IV.  34,  pi.  1.  This  decision 
is  qualified  in  Fitz.  Abr.  Bayllye,  pi.  4,  and  doubted  in  Bro.  Abr. 
Trespass,  pi.  86  ;  but  it  has  been  followed  or  approved  so  continuously, 
and  in  so  many  later  cases,  that  it  would  be  hard  to  deny  that  the  com- 
mon law  was  as  there  stated  by  Chief  Justice  Gascoigne.  Godbolt, 
109,  110,  pi.  129;  s.  c.  2  Leon.  196,  pi.  246;  Hull  v.  Pickersgill, 
1  Brod.  &  Bing.  282;  Muskett  v.  Druramond,  10  B.  &  C.  153,  157; 
Buron  v.  Denman,  2  Exch.  167,  188  ;  Secretary  of  State  in  Council  of 
India  v.  Kamachee  Boye  Sahaba,  13  Moore,  P.  C.  22,  86 ;  Cheetham 
V.  Mayor  of  Manchester,  L.  R.  10  C.  P.  249  ;  Wiggins  v.  United 
States',  3  Ct.  of  CI.  412. 

If  we  assume  that  an  alleged  principal  by  adopting  an  act  which  was 
unlawful  when  done  can  make  it  lawful,  it  follows  that  he  adopts  it  at 
his  peril,  and  is  liable  if  it  should  turn  out  that  his  previous  command 
would  not  have  justified  the  act.  It  never  has  been  doubted  that  a 
man's  subsequent  agreement  to  a  trespass  done  in  his  name  and  for 
his  benefit  amounts  to  a  command  so  far  as  to  make  him  answerable. 
The  ratihabitio  mandato  comjxiratur  of  the  Roman  lawyers  and  the 
earlier  cases  (D.  46.  3.  12,  §  4  ;  D.  43.  16.  1,  §  14  :  Y.  B.  30  Ed.  I., 
128)  has  been  changed  to  the  dogma  cequiparatur  ever  since  the  da3'S 
of  Lord  Coke.  4  Inst.  317.  See  Bro.  Abr.  Trespass,  pi.  113;  Co. 
Lit.  207  a;  Wingate's  Maxims,  124;  Com.  Dig.  Trespass,  C.  1; 
Eastern  Counties  Railway-  v.  Broom,  6  Exch.  314,  326,  327  ;  and  cases 
hereafter  cited. 

Doubts  have  been  expressed,  which  we  need  not  consider,  whether 
this  doctrine  applied  to  the  case  of  a  bare  personal  tort.  Adams  v. 
Freeman,  9  Johns.  117,  118.  Anderson  and  Warberton,  J.J.,  in 
Bishop  V.  Montague,  Cro.  Eliz.  824.  If  a  man  assaulted  another  in 
the  street  out  of  his  own  head,  it  would  seem  rather  strong  to  say  that., 
if  he  merel}'  called  himself  my  servant,  and  I  afterwards  assented, 
without  more,  our  mere  words  would  make  me  a  part}'  to  the  assault, 
although  in  such  cases  the  canon  law  excommunicated  the  principal  if 
tlie  assault  was  upon  a  clerk.  Sext.  Dec.  5.  11.  23.  Perhaps  the 
application  of  the  doctrine  would  be  avoided  on  the  ground  that  the 
facts  did  not  show  an  act  done  for  the  defendant's  benefit.  Wilson  v. 
Barker,  1  Nev.  &.  Man.  409  ;  s.  c.  4  B.  &  Ad.  614  et  seq.  ;  Smith  v. 
Lozo,  42  Mich.  6.     As  in  other  cases  it  has  been  on  the  ground  that 


SECT.  II.]  DE.MPSEY    V.    CHAMBEKS.  1033 

tliey  did  not  amount  to  such  a  ratification  as  was  necessary.     Tucker 
V.  Jerris,  75  Maine,  184  ;  Hjxle  v.  Cooper,  26  Vt.  552. 

But  tlie  language  generally  used  by  judges  and  text-writers,  and 
sucli  decisions  as  we  liave  been  able  to  find,  is  broad  enough  to  cover  a 
case  like  the  pre&ent  when  the  ratification  is  established.  Perley  v. 
Georgetown.  7  Gray,  4G4  ;  Bishop  v.  Montague,  Cro.  Eliz.  824;  San- 
derson V.  Baker,  2  Bl.  832  ;  s.  c.  3  Wils.  309  ;  Barker  v.  Braham,  2  Bl. 
866,  868  ;  s.  c.  3  Wils.  368  ;  Badkin  v.  Powell,  Cowper,  476,  479  ; 
Wilson  V.  Tumman,  6  Man.  &  G.  236,  242 ;  Lewis  v.  Read,  13 
M.  &  W.  834;  Buron  v.  Dennaan,  2  Exch.  167,  188;  Bird  v. 
Brown,  4  Exch.  786,  799 ;  Eastern  Counties  Railway  v.  Broom, 
6  Exch.  314,  326,  327  ;  Roe  v.  Birkenhead,  Lancashire  &  Cheshire 
Junction  Railway,  7  Exch.  36,  41  ;  Ancona  v.  Marks,  7  H.  &  N.  686, 
695  ;  Condit  v.  Baldwin,  21  N.  Y.  219,  225  ;  Exum  v.  Brister,  35 
Miss.  391  ;  Galveston,  Harrislnirg  &  San  Antonio  Railway  v.  Donahoe, 
56  Texas,  162;  Murray  i\  Lovejo\',  2  Cliff.  191,  195  ;  see  Lovejoy  v. 
Murray,  3  Wall.  1,  9  ;  Story  on  Agency-,  §§  455,  456. 

The  question  remains  whether  the  ratification  is  established.  As  we 
understand  the  bill  of  exceptions,  IMcCiillock  took  on  himself  to  de- 
liver the  defendant's  coal  for  his  benefit  and  as  his  servant,  and  the 
defendant  afterwards  assented  to  McCullock's  assumption.  The  ratifi- 
cation was  not  directed  specifically  to  McCullock's  trespass,  and  that 
act  was  not  for  the  defendant's  benefit  if  taken  by  itself,  but  it  was  so 
connected  with  McCullock's  emploj-ment  that  the  defendant  would 
have  been  liable  as  master  if  McCuUock  really  had  been  his  servant 
when  delivering  the  coal.  We  have  found  hardly  anything  in  the 
books  dealing  with  the  precise  case,  but  we  are  of  opinion  that  con- 
sistenc}'  with  the  whole  course  of  authorit}-  requires  us  to  hold  that  the 
defendant's  ratification  of  the  emploj-ment  established  the  relation  of 
master  and  servant  from  the  beginning,  with  all  its  incidents,  including 
the  anomalous  liability  for  his  negligent  acts.  See  Coomes  v. 
Houghton,  102  Mass.  211,  213,214;  Cooley,  Torts,  128,  129.  The 
ratification  goes  to  the  relation,  and  establishes  it  ab  initio.  The  re- 
lation existing,  the  master  is  answerable  for  torts  which  he  has  not 
ratified  specificalh',  just  as  he  is  for  those  which  he  has  not  commanded, 
and  as  he  maj*  be  for  those  which  he  has  expressly  forbidden.  In 
Gibson's  Case,  Lane,  90,  it  was  agreed  that,  if  strangers  as  servants 
to  Gibson,  but  without  his  precedent  appointment,  had  seized  goods  bj' 
color  of  his  office  and  afterwards  had  misused  the  goods,  and  Gibson 
ratified  the  seizure,  he  thereb}'  became  a  trespasser  ab  initio,  although 
not  privy  to  the  misusing  which  made  him  so.  And  this  proposition  is 
stated  as  law  in  Com.  Dig.  Trespass,  C.  1.  Elder  v.  Bemis,  2  Met. 
599,  605.  In  Coomes  v.  Houghton,  102  Mass.  211,  the  alleged  ser- 
vant did  not  profess  to  act  as  servant  to  the  defendant,  and  the 
decision  was  that  a  subsequent  payment  for  his  work  by  tlie  defendant 
would  not  make  him  one.  For  these  reasons,  in  the  opinion  of  a 
majorit}-  of  the  court,  the  exceptions  must  be  overruled. 

Exceptions  overruled. 


1034  EIGHT   d.    FISHER    V.    CUTHELL.  [CHAP.  X. 


SECTION   III 

The  Possibility  of  Ratification  as  affected  hy  the  Rights  of  Persons 
other  than  the  Quasi-Principal. 

RIGHT,    d.   FISHER,    NASH,   and    HYRONS,   v.   CUTHELL. 
King's  Bench.     1804. 

[5  East, -^91.] 

This  was  an  ejectment  to  recover  possession  of  twelve  certain  mes- 
suages and  tlie  appurtenances  in  the  parish  of  St.  Botolph,  Aldgate,  in 
the  count}'  of  Middlesex.  The  first  count  was  on  the  demise  of  Fisher, 
Nash,  and  Hyrons  ;  the  second  on  the  demise  of  P^isher  and  Nash  onl}-, 
which  latter  it  was  admitted  could  not  be  supported.  The  premises 
consisted  of  houses,  formerly  the  property  of  one  Moses  Adams,  and 
by  him  demised  by  a  lease  dated  20th  of  October,  1789,  to  one  WiUiam 
Cuthell  (since  deceased,  whose  representative  the  defendant  is),  for  a 
term  of  twent3'-one  years,  commencing  from  Michaelmas  then  last  past. 
In  which  lease  was  contained  a  proviso  that  in  case  either  landlord  or 
tenant,  or  their  respective  heirs,  executors,  etc.,  should  be  desirous  at 
the  expiration  of  the  first  seven  or  fourteen  years  of  the  term  to  deter- 
mine the  lease,  and  should  give  six  months'  previous  "  notice  in  writing 
under  his  or  their  respective  hand  or  hands  to  or  for  the  other  or  others, 
or  for  the  heirs,  executors,  etc.,  of  the  other  or  others  of  them,  then  the 
term  should  cease."  Adams  afterwards  died,  having  made  his  will, 
wherein  he  appointed  Fisher,  Nash,  and  Hyrons  his  executors,^  who 
proved  the  will.  Six  months  previous  to  the  expiration  of  the  first 
fourteen  years  (Hyrons,  one  of  the  executors,  being  at  that  time 
abroad),  Fisher  and  Nash  b\'  a  notice  in  writing  dated  23d  of  March, 
1803,  reciting  the  indenture  of  lease  of  the  premises  to  W.  Cuthell  for 
twenty-one  years,  and  the  proviso  above  mentioned  ;  and  reciting  further 
that  Moses  Adams  had  in  his  lifetime  made  his  will  and  appointed 
Fisher,  Nash,  and  Hyrons  his  executors,  and  that  the}-  had  proved  the 
will  and  taken  on  themselves  the  execution  thereof,  and  were  still 
executors  of  the  same,  proceeded  thus :  "  Now  the  said  W.  Fisher  and 
S.  Nash  do  on  the  part  and  behalf  of  themselves  and  the  said  J.  Hyrons 
hereby  give  you  (the  defendant)  notice  that  they  are  desirous  and  do 
intend  at  the  expiration  of  the  first  fourteen  years  of  the  said  term  of 
twent^'-one  years  to  determine  the  said  lease.  And  they  do  further  for 
themselves  and  the  said  J.  Hyrons  require  and  demand  of  you  the  pos- 
session of  all  the  premises  at  the  expiration  of  the  first  fourteen  years, 
etc.,  and  give  3-ou  notice  to  quit  and  deliver  up  the  possession  thereof 

^  It  was  admitted  that  the  messuages  were  freehold,  and  that  the  executors  who 
had  a  power  to  sell  took  as  joint-teuants  in  fee.  —  Rep. 


<5ECT.  III.]  RIGHT    (1.    FISHER   V.    CUTHELL.  1035 

at  that  time  accordinglj-."  Signed,  "  W.  Fisher  and  S.  Nash."  At  the 
trial  of  this  case  before  Lord  Ellenborough,  C.  J.,  at  the  last  West- 
minster Sittings,  the  plaintiff  proved  his  case  by  producing  the  original 
lease,  with  the  proviso ;  the  death  of  Adams ;  his  will,  whereby  the 
lessors  of  the  plaintiff  were  appointed  his  executors;  the  possession  of 
the  defendant  under  W.  Cuthell,  deceased  ;  and  the  above-mentioned 
written  notice  to  quit,  signed  by  two  only  of  the  executors,  the  other 
being  abroad  ;  but  no  authority  was  proved  from  the  latter  to  the  other 
two,  to  enable  them  on  his  behalf  to  determine  the  lease,  further  than 
as  it  might  be  presumed  by  law  from  the  circumstances  of  the  notice 
itself,  and  the  ejectment  having  been  brought  in  the  name  of  the  three. 
It  was  objected,  however,  by  the  defendant's  counsel  that  no  such  pre- 
sumption could  be  made,  and  that  as  the  executors  were  joint-tenants 
under  the  will,  the  two  could  not  bind  the  third  b\-  such  an  act  as  this, 
without  his  concurrent  assent  at  the  time,  and  that  no  subsequent  rati- 
fication of  the  third,  even  if  sucli  appeared  (wliich  was  denied),  would 
be  sufficient  to  bind  the  defendant.  His  Lordship  being  of  this  opinion 
nonsuited  the  plaintiff.  It  was  moved  on  a  former  day  in  this  term  to 
set  aside  the  nonsuit,  on  the  ground  that  the  notice  itself,  purporting  to 
be  given  by  the  authority  of  all  three  of  the  executors,  must  be  taken 
to  have  been  so  until  the  contrary  were  proved.  That  it  need  not  have 
been  signed  b}^  either  of  them  ;  for  if  delivered  by  a  common  agent  or 
steward,  as  by  their  authority,  it  would  have  been  sufficient,  without 
proving  specifically  his  warrant  from  each  of  them  individually.  But 
that  if  there  were  an}'  doubt  of  the  authority,  the  act  of  the  two  was 
recognized  by  the  third,  in  his  permitting  the  ejectment  to  be  brought 
in  his  name  without  any  complaint  made  on  his  behalf  to  the  court, 
that  his  name  had  been  used  without  his  assent. 

Gibbs  and  E-^pinasse  now  showed  cause. 

Erskine  and  Marryat^  in  support  of  the  rule. 

Lord  Ellenborough,  C.  J.  This  was  a  notice  to  quit  given  to  the 
tenant  under  a  proviso  in  a  lease  for  twent3'-one  years,  that  in  ease 
either  part}'  wished  to  put  an  end  to  the  term  at  the  expiration  of  the 
first  seven  or  fourteen  years,  six  months'  previous  notice  in  writing 
should  be  given  under  his  or  their  respective  hands.  Now  this  is  a 
notice  signed  by  two  only  of  three  joint-tenants,  under  whom  the 
defendant  held,  purporting  however  to  be  given  on  behalf  of  themselves 
and  the  other.  It  is  a  notice  to  defeat  an  estate  ;  the  person  therefore 
to  whom  it  is  given  ought  to  be  assured  at  the  time  he  receives  it,  and 
when  he  is  to  act  upon  it,  that  if  he  deliver  up  possession  at  the  end  of 
the  six  months,  he  will  be  acquitted  of  all  further  claims  in  respect  of 
the  remainder  of  the  term.  But  if  two  only  of  the  three  joined  in  the 
notice,  how  could  the  defendant  be  assured  of  this?  How  could  he  be 
assured  that  tlie  third  might  not  disavow  the  notice  afterwards,  and 
claim  the  defendant  still  as  a  tenant  to  him?  But  it  is  said,  that 
Hyrons  suffering  the  ejectment  to  be  brought  in  his  name  is  a  ratifica- 
tion of  the  others'  authoritv.     But  a  ratification  given  afterwards  will 


1036  EIGHT   d.   FISHEK   V.    CUTHELL.  [CHAP.  X. 

not  do  in  this  case;  because  the  tenant  was  entitled  to  such  a  notice  as 
he  could  act  upon  with  certainty'  at  the  time  it  was  given  ;  and  he  was 
not  bound  to  submit  himself  to  the  hazard  whether  the  third  co-executor 
chose  to  ratif)"  the  act  of  his  companions  or  not,  before  the  six  months 
elapsed.  Then  the  rule  of  law  is  relied  on  to  show  that  the  two  joint- 
tenants  who  signed  the  notice  had  authority  to  bind  the  other  in  this 
case  ;  and  it  is  asked  how  the  act  appears  to  be  prejudicial  to  the  third? 
But  it  is  not  necessary  for  the  defendant  to  show  that  it  would  be  preju- 
dicial to  Hyrons.  The  rule  of  law  is,  that  every  act  of  one  joint-tenant 
which  is  for  the  benefit  of  his  co-joint-tenant  shall  bind  him.  And  it  is 
a  condition  on  the  part  of  those  who  set  it  up  and  would  avail  themselves 
of  it  as  binding,  to  show  that  it  was  beneficial  to  Hyrons.  For  the 
two  joint-tenants  had  no  right  to  bind  the  third  in  his  absence,  unless 
the  act  done  appear  to  have  been  for  the  benefit  of  all ;  and  how  does 
that  appear?  Subsequent  acts  cannot  be  brought  in  aid.  It  must  be 
done  under  a  competent  authority  at  the  time.  And  in  order  to  satisfy 
the  condition  on  which  the  lease  was  to  be  defeated,  the  notice  ought 
to  have  been  given  under  the  respective  hands  of  the  three  executors. 

Grose,  J.  The  tenant  who  took  the  entire  lease  of  the  whole  was 
not  bound  to  accept  notice  to  quit  a  part  onlv,  but  such  notice  only  as 
was  obligatory  upon  all  the  joint-tenants.  Here  there  was  a  proviso  in 
the  lease,  that  in  case  either  party  wished  to  put  an  end  to  it  at  the 
expiration  of  the  first  seven  or  fourteen  years,  it  should  be  lawful  so  to 
do  upon  giving  the  other  six  months'  previous  notice  in  writing  under  his 
or  their  respective  hands.  That  was  not  done  in  this  instance  ;  for  the 
notice  was  onl}-  signed  by  two  out  of  three  of  the  persons  interested, 
and  therefore  the  tenant  was  not  bound  by  it. 

Lawrence,  J.  I  think  there  is  great  weight  in  the  argument  of  the 
defendant's  counsel,  that  for  the  notice  to  be  good  it  oirght  to  be  bind- 
ing on  all  the  parties  concerned  at  the  time  when  it  was  given,  and  not 
to  depend  for  its  validit}'.  in  part,  upon  any  subsequent  recognition  of 
one  of  them  ;  because  the  tenant  is  to  act  upon  the  notice  at  the  time, 
and  therefore  it  should  be  such  as  he  may  act  upon  with  security.  But 
if  it  be  to  depend  upon  a  subsequent  ratification  of  one  of  the  joint- 
tenants,  landlords,  whether  or  not  it  is  to  be  binding  upon  him,  the 
condition  and  situation  of  the  tenant  nmst  remain  doubtful  till  the  time 
of  such  ratification.  Now  the  intention  of  the  parties  to  the  lease  was, 
that  the  tenant  should  not  be  obliged  to  quit  without  being  apprised  of 
it  for  a  certain  time,  that  he  might  have  an  opportunity  to  provide  him- 
self with  another  dwelling ;  but  if  a  ratification  will  do,  instead  of  six 
months,  he  might  not  know  certainl}-  for  as  man}-  days  or  hours  whether 
he  must  quit  or  not.  The  rule  of  law,  that  oinnis  ratihahitio  retro 
troJdtur,  etc.,  seems  only  applicable  to  cases  where  the  conduct  of  the 
parties  on  whom  it  is  to  operate,  not  being  referable  to  an\-  agreement, 
cannot  in  the  mean  time  depend  on  whether  there  be  a  subsequent  rati- 
fication. But  here  the  intermediate  acts  of  the  tenant  referable  to  the 
terms  of  his  lease  are  to  be  affected  by  relation. 


SECT.  III.]  HAGEDOKN    V.    OLIVEHSOX.  1037 

Le  Blanc,  J.  I  cannot  satisfy  myself  that  the  nonsuit  vva-  wrong. 
Hei-e  is  a  power  of  determining  a  lease  by  the  notice  to  quit  of  three 
persons  ;  and  two  only  give  the  notice  :  then  I  must  be  satisfied  that 
they  had  authority  to  bind  the  third,  before  I  can  say  that  their  notice 
was  good.  And  when  I  see  that  by  the  terms  of  the  proviso  the  notice  is 
to  be  given  under  their  respective  hands,  I  cannot  say  that  a  notice 
under  the  hands  of  two  only  is  good.  Besides,  the  tenant  is  to  act 
upon  this  notice  at  tlie  time,  and  he  must  be  satisfied  that  it  is  such 
a  notice  as  will  bind  all  the  three.  No  evidence  was  offered  to  show 
that  the  two  acted  by  the  authority  of  the  third  ;  and  if  the  defendant 
had  3'ielded  to  it,  and  could  not  have  proved  the  concurrence  of 
Hyrons  to  it,  the  latter  might  afterwards  have  disavowed  tlie  act  of  his 
co-joint-tenants,  and  have  come  upon  the  defendant  for  his  rent. 

Rule  discharged  ^ 


HAGEDORN   v.   0LIVP:RS0N. 

King's  Bench.     1814. 

[2  M.  Sr  S.  485.] 

Assumpsit  on  a  policy  of  assurance  tried  before  Lord  Ellenborough, 
C.  J.,  at  the  London  sittings  after  Michaelmas  Term,  when  a  verdict 
was  found  for  the  plaintiff  for  £200,  the  amount  of  the  defendant's 
subscription,  subject  to  the  opinion  of  the  court  on  the  following  case: 

The  polic}'  was  effected  by  the  plaintiff'^  on  or  about  the  2d  of  August, 
1810,  as  well  in  his  own  name  as  for  and  in  the  name  and  names  of  all 
and  ever}'  other  person  and  persons  to  whom  the  same  doth,  ma}',  or 
shall  appertain,  etc.,  in  the  usual  form,  upon  the  ship  ''  Fiesco,"  valued 
at  £2.300  at  and  from  Gluckstadt,  and  any  port  and  ports  in  the  river 
Elbe,  to  an}'  port  or  ports  in  the  United  Kingdom,  with  liberty  to  carry 
simulated  papers,  etc.,  sail  under  any  flag,  etc.  The  declaration  averred 
the  interest  to  be  in  F.  S.  Schroeder,  and  a  loss  by  capture.  At  the  time 
of  effecting  the  policy  Schroeder  was  and  is  a  subject  of  the  King  of 
Denmark,  then  and  now  at  war  with  Great  Britain.  In  order  to  legalize 
the  voyage  the  plaintiff  had  procured  a  license,  which  was  granted  to  him, 
by  the  name  of  J.  P.  H.  Hagedorn  of  London,  on  behalf  of  himself  or 
other  British  or  neutral  merchants,  permitting  a  vessel  bearing  any  flag 
except  the  French  to  proceed  with  a  cargo  from  within  certain  specified 
limits,  within  which  Gluckstadt  was,  to  any  port  of  this  kingdom  north 
of  Dover,  etc.  The  ship  was  loaded  at  Gluckstadt  in  July,  1810,  with 
a  cargo  on  British  and  neutral  account,  and  sailed  from  thence  under 
Danish  colors  for  London  on  the  26th  of  that  month,  and  was  captured 

1  Ace.  Pickard  v.  Perley,  45  N.  H.  188  (1864). 
See  Doe  d.  Mann  v.  Walters,  10  B.  &  C.  626  (1830). 
Compare  Chapman  v.  Kcane,  3  Ad.  &  E.  193  (1835).— Ed. 

2  It  was  stated  upon  the  arp^ument,  and  so  taken,  that  the  plaintiff  gave  the  order 
to  the  broker  to  effect  the  insurance.  —  Rep. 


1038  HAGEDOEN   V.    OLIVERSOX.  [CHAP.  X. 

by  enemies,  carried  into  a  port  of  Holland,  and  condemned.  The  policy 
was  effected  for  the  benefit  of  Schroeder,  but  no  letter  or  order  was 
proved  from  Schroeder  before  the  loss,  but  a  letter  from  him  to  the 
[)laintiff,  dated  the  26thof  Jul}-,  1812,  before  the  commencement  of  this 
action,  was  produced,  wherein  he  adopted  the  insurance  in  the  follow- 
ing terms :  — 

"  I  may  now,  I  hope,  expect  that  you  have  effected  a  final  settle- 
ment with  the  underwriters  per  Fiesco,  and  request  you  to  lay  out 
the  amount  for  me  in  coffee." 

No  other  evidence  was  given  of  the  connection  of  Schroeder  with  this 
policy.  The  question  for  the  opinion  of  the  court  is  whether  the  plain- 
tiff is  entitled  to  recover  ;  if  the  court  shall  be  of  that  opinion,  the  verdict 
is  to  stand  ;   if  not,  a  nonsuit  is  to  be  entered. 

Taddi/,  for  the  plaintiff. 

Scarlett,  contra. 

Tacldi/,  in  repl}-.^ 

Lord  Ellexborough,  C.  J.  The  difficulty  in  this  case  arises  from 
the  situation  of  Schroeder,  because  he  might,  b}'  refusing  to  adopt  the 
policy  in  case  the  ship  had  arrived,  have  got  clear  of  the  premium,  for 
if  the  plaintiff  had  brought  an  action  against  him  to  recover  it,  I  do  not 
see  how  he  could  have  succeeded.  That  constitutes  something  of  an 
anomaly,  because  in  one  event,  namely-,  that  of  a  loss,  he  might  secure 
himself,  and  nevertheless  might  have  avoided  the  payment  of  the  pre- 
mium, in  the  other  event  of  the  ship's  arrival,  by  declaring  that  he 
chose  to  stand  his  own  insurer.  But  I  do  not  think  that  consideration 
governs  the  case  now  before  us  between  this  plaintiff  and  the  under- 
writer. The  plaintiff  had  a  right  to  effect  an  insurance,  on  the  chance 
of  its  being  adopted,  for  the  benefit  of  all  those  to  whom  it  might 
appertain,  which  are  the  words  of  the  policy.  He  might  insure  for 
those  who  were  actuall}-  interested,  and  possibly  for  those  who  might  be 
interested.  Schroeder  was  interested,  and  might  become  privy  to  the 
benefit  of  this  insurance  by  subsequent  adoption,  according  to  Lucena  v. 
Craufurd  and  Routh  v.  Thompson.  He  has  adopted  it,  and  now  it  is 
made  a  question,  whether  he  can  become  piivy  to  the  benefit  of  it. 
It  appears  to  me  upon  those  authorities  that  he  may,  and  may  make  use 
of  the  name  of  the  person  at  the  head  of  the  policy,  as  the  person  who 
had  given  the  order  to  effect  the  insurance,  which  will  satisfy  the  stat. 
28  G.  III.  c.  56.  It  seems  to  me,  therefore,  that  this  action  is  maintain- 
able for  the  benefit  of  Schroeder,  who  was  interested  at  the  time,  and 
has  become  privy  by  adoption. 

Le  Blanc,  J.  The  difficulty  thrown  in  the  way  of  the  plaintiff  has 
been  this,  that  if  Schroeder,  in  the  event  of  the  ship's  arrival,  had 
chosen  to  repudiate  instead  of  adopt  the  contract,  he  might  have  done 
so,  and  there  would  have  been  no  means  of  coming  upon  him  for  the 
premium.     But  this  policy  was  effected  for  the  benefit  of  all  persons 

^  Citiug  Lucena  v.  Craufurd,  1  Taunt.  325,  s.  0.  2  B.  &  P  N.  R.  269 ;  Routh  v 
Thompson,  13  East,  274.  —  Ed. 


SECT.  III.]  HAGEDORN   V.    OLIVEESON.  1039 

interested,  and  Scbroeder  was  a  person  interested  ;  and  I  take  it, 
after  the  ship  sailed  on  the  voyage  insured,  the  plaintiff  was  bound  b}' 
the  insurance,  and  could  not  have  recovered  back  the  premium  from 
the  underwriter,  by  averring  that  this  was  a  policy  without  interest ;  the 
answer  would  have  been,  Schroeder  is  interested,  and  he  maj-  elect  to 
adopt  the  insurance.  1  therefore  conceive  the  underwriter  would  have 
had  a  right  to  retain  the  premium.  Then  Routh  v.  Thompson  is,  I  think, 
an  authority  to  show  that  Schroeder  being  interested  might  subse- 
quently adopt  the  insurance  made  by  the  plaintiff.  There  the  Crown 
adopted  it  after  a  loss  ;  and  the  distinction  taken  in  that  case,  that  the 
party  making  the  insurance  was  appointed  by  the  captors  who  had  no 
insurable  interest,  and  therefore,  that  he  stood  in  the  relation  of  agent 
on  the  part  of  the  Crown,  whose  agents  the  captors  were,  does  not,  I 
think,  make  any  difference.  Here  the  plaintiff  was  not  unconnected 
with  the  insurance  ;  he  obtained  a  license  and  made  insurance  for 
the  benefit  of  the  owners,  tliough  without  communicating  with  them. 
Schroeder,  who  is  an  owner,  afterwards  adopted  it.  That  case  is  an 
authority  to  show  that  he  might  afterwards  adopt  it.  This,  it  must  be 
remembered,  is  a  question  between  the  plaintiff  and  the  underwriter, 
and  not  Schroeder  and  the  underwriter ;  and  unless  we  saw  that  the 
underwriter  would  not  have  been  entitled  to  retain  the  premium,  we 
cannot  say  that  the  plaintiff  is  not  entitled  to  his  contract,  unless  it 
could  be  shown  that  this  is  a  mere  gaming  polic}'. 

Bayley,  J.  I  think  this  is  a  case  in  which  the  defendant  ought  to 
pa}',  and  the  plaintiff  ought  to  receive  for  a  loss  under  the  policj'. 
A  loss  has  happened,  upon  which  the  defendant  undertook  to  pa}',  and 
if  the  premium  could  not  have  been  recovered  back  from  the  defendant, 
there  is  not  any  circumstance  here  which  should  exonerate  him  from 
liability.  T  tliink  the  plaintiff  never  could  have  recovered  back  the 
premium  from  the  underwriter,  because  of  the  uncertainty  whether 
Schroeder  would  adopt  the  assurance,  in  respect  of  which  the  under- 
writer would  have  incurred  the  risk.  While  the  contract  was  in  Jieri, 
there  was  not  any  disposition  on  the  plaintiff's  part  to  have  tlie  policy 
vacated,  and  if  there  had  been,  it  would  have  been  an  answer  to  him, 
that  Schroeder  might  have  adopted  it.  Then  comes  the  question 
whether  Schroeder  is  entitled  to  take  that  benefit  of  this  insurance. 
It  is  stated  that  it  was  effected  for  his  benefit,  therefore  it  was  intended 
to  cover  his  specific  interest  at  the  time.  Schroeder  had  an  interest  at 
the  time,  and  although  there  was  not  any  specific  communication  at  the 
time,  yet  as  Schroeder  was  connected  in  the  concern,  it  was  reasonable 
for  the  plaintiff  to  expect  that  Schroeder  would  adopt  an  act  which 
could  be  done  with  no  other  view  than  for  his  benefit.  Schroeder  must 
be  considered  as  under  a  moral  if  not  a  legal  obligation  to  adopt  it 
although  the  ship  arrived.  Being  under  that  obligation  in  all  events, 
he  thinks  that  he  is  warranted  in  adopting  it  even  after  a  loss,  and  has 
adopted  it.  The  case  of  Routli  /•.  Thomi)son  shows  that  if  a  policy  be 
effected  witli  reference  to  the  benefit  of  a  person  interested,  an  adoption 
of  it  by  such  person  after  the  loss  will  be  sufficient. 


1040  BIRD  '*^-  BROWN.  [chap.  X. 

Dampikk,  J.  The  plaintiff  placed  himself  in  an  awkward  situation 
by  advancing  his  money  for  the  premiums,  upon  the  expectation  that 
Schroeder  would  adopt  his  act,  which  Schroeder  might  have  refused  to 
do  in  the  event  of  the  ship's  arrival ;  and  if  he  had,  I  do  not  see  that 
the  plaintiff  could  have  recovered  back  the  premiums.  The  question 
then  is  whether  Schroeder  had  an  interest  in  tlie  policy.  He  was  owner 
of  the  ship,  and  the  policy  was  effected  for  his  benefit ;  that  seems  to  me 
to  give  him  an  interest.  If  then  he  had  an  interest,  his  subsequent 
adoption  will  be  good.  Routh  v.  Thompson  is  a  full  and  clear  authority 
to  that  point;  there  the  agency  was  only  a  constructive  agenc}',  and  it 
does  not  appear  to  me  to  afford  any  distinction  because  the  insurance 
did  not  come  within  the  scope  of  his  agencv.  Tlierefore  it  seems  to  me 
to  govern  this  case  ;  there  is  no  distinction  in  reason  though  there  may 
be  a  difference.  All  the  averments  in  this  declaration  are  certainly  fully 
proved,  and  therefore  the  plaintiff  is  entitled. 

Judgment  for  the  plaintiff.^ 


BIRD  AND  OTHERS,  ASSIGNEES  OF  CARNE  &  TELO,  Bankrupts,  v. 
brown  and  others. 

Exchequer.     1850, 

[4  Exch.  786.] 

This  was  an  action  of  trover.  In  the  first  count  of  the  declaration, 
the  plaintiffs  declared  on  tlie  possession  of  the  bankrupts  before  their 
bankruptcy  ;  and  in  the  second,  on  their  own  possession  as  assignees  ; 
and  in  both,  the  conversion  was  laid  after  the  bankruptcy'.     The  defend- 

1  See  Stillwell  o.  Staples,  19  N.  Y.  401  (1859). 

In  Williams  v.  North  China  Ins.  Co.,  1  C.  P.  D.  757  (C.  A.  1876),  Cockburn,  C.  J., 
said  .•  "  The  ratification  was  not  until  after  the  loss  had  occurred  and  was  known  to 
the  principals.  Tlie  existing  authorities  certainly  show  that  when  an  insurance  is 
effected  without  authority  by  one  person  on  another's  behalf,  the  principal  may  ratify 
the  insurance  even  after  the  loss  is  known.  Mr.  Benjamin  asked  us,  as  a  Court  of 
Appeal,  to  review  those  authorities.  His  contention  was  that  there  could  only  be  a 
ratification  when  the  principal  could  himself  make  the  same  contract  as  that  ratified. 
Admitting  that  for  general  purposes  this  rule  may  be  good,  the  authorities  which  we 
are  asked  to  overrule  are  much  too  strong  and  of  too  long  standing  to  be  got  over. 
When  a  rule  has  been  acceepted  as  the  law  with  regard  to  marine  insurance  for  nearly 
a  century,  I  do  not  think  we  ought  to  overrule  it  lightly,  because  insurances  have 
probably  been  effected  on  the  basis  of  the  law  that  has  so  become  settled,  and  mischief 
might  arise  from  the  disturbance  of  it.  Moreover,  I  think  that  this  is  a  legitimate 
exception  from  the  general  rule,  because  the  case  is  not  within  the  principle  of  that 
rule.  Where  an  agent  effects  an  insurance  subject  to  ratification,  the  loss  insured 
against  is  very  likely  to  happen  before  ratification,  and  it  must  be  taken  that  the  insur- 
ance so  effected  involves  that  possibility  as  the  basis  of  the  contract.  It  seems  to  me 
that,  both  according  to  authority  and  the  principles  of  justice,  a  ratification  may  be 
made  in  such  a  case."  —  Ed. 


SECT.  III.]  BIRD   V.    BROWN.  1041 

ants  pleaded  first,  not  guilty.  Secondly,  to  the  first  count,  a  denial  of 
the  possession  of  the  bankrupts.  Thirdly,  to  the  same,  a  denial  of  the 
goods  being  the  property  of  the  plaintiffs  as  assignees.  Fourtlily,  to 
the  last  count,  a  denial  of  the  possession  of  the  plaintiffs  as  assignees ; 
on  which  pleas  issues  were  joined.  At  the  trial  before  Cresswell,  J., 
at  the  Liverpool  Summer  Assizes  1848,  a  verdict  was  found  for  the 
plaintiffs,  damages  £10,142  76-.  Ad.^  subject  to  a  case.^ 

Coiding  argued  for  the  plaintiffs. 

Cronipton  {Heath  with  him),  for  the  defendants. 

Cur.  adv.  vidt. 

RoLFE,  B.  This  was  an  action  of  trover  to  recover  the  value  of 
several  cargoes  of  corn  and  other  goods,  sent  from  New  York  to  this 
country'. 

It  was  tried  at  Liverpool,  and  a  verdict  was  found  for  the  plaintiffs, 
subject  to  our  o[)inion  on  a  case  reserved.  The  case  was  argued  before 
us  last  term,  when  the  material  facts  appeared  to  be  as  follows  :  Carne 
&  Telo,  merchants  at  Liverpool,  early  in  184G  sent  out  extensive  orders 
to  Charles  Illins,  a  merchant  at  New  York,  to  purchase  for  them  corn, 
flour,  tallow,  and  other  articles. 

In  pursuance  of  these  orders,  Illins  made  purchases  to  the  amount  of 
about  £14,000,  and  shipped  the  goods  by  five  vessels  bound  to  Liver- 
pool, namely,  two  vessels  each  called  the  Ashhurton,  and  three 
others,  called  respectively  the  Europe,  the  New  Yorl\  and  the  Hot- 
tinguer.  These  were  all  general  vessels,  and  the  goods  were  con- 
signed to  Messrs.  Carne  &  Telo. 

The  shipments  were  all  made  in  the  month  of  March,  1846.  The 
goods  shipped  by  the  Ilottinguer  were  received  b\-  Carne  &  Telo 
before  the  7th  of  April,  1846,  on  which  day  they  stopped  payment. 
Illins,  pursuant  to  directions  from  Carne  &  Telo,  had  drawn  bills  foj 
the  goods,  partly  on  Carne  &  Telo  themselves,  partly  on  a  firm  ot 
Richards,  Little  &  Co,,  with  whom  Carne  &  "Telo  had  dealings.  The 
defendants,  who  are  merchants  at  Liverpool,  and  who  also  have  a  house 
of  business  at  New  York,  purcliascd  there  several  of  the  bills  so  drawn 
by  Illins,  to  the  amount  of  about  £7,000  ;  and  those  bills  were  remitted 
in  regular  course  to  them  at  Liverpool.  The  bills  were  all  drawn  at 
sixty  days'  sight,  and  were  dated,  some  on  the  28th  of  March,  the  rest 
on  the  30th. 

On  the  8th  of  May  a  fiat  in  bankruptcy  issued  against  Carne  &  Telo, 
and  they  were  duly  found  bankrupts,  and  the  plaintiffs  are  their  as- 
signees. The  Europe  arrived  at  Liverpool  on  tlie  3rd  of  INIay,  one 
of  the  AsJdnirtons  on  the  5th,  and  the  other  on  the  6th,  and  the 
Neir  Tori-  on  the  9th  ;  and  immediately  on  the  arrival  of  each  of 
these  ships,  and  while  the  transitus  of  the  goods  on  board  continued, 
the  defendants,  on  behalf  of  Illins,  gave  notice  to  tlie  master  and  con- 

'  The  reporter's  statement  of  the  facts  has  heen  omitted.  — Ed. 
6(5 


1042  BIKD    V.    BROWN.  [tHAP.  X, 

signees  of  each  ship,  claiming  to  stop  the  goods  hi  transitu.  The 
defendants  were  not  agents  of  Illins,  nor  had  the}'  received  from  him 
an)-  authority  to  make  this  stoppage.  On  the  11th  of  May  the  plaintiff 
Bird,  as  ollicial  assignee  of  Carne  &  Telo,  made  a  formal  demand  of  the 
goods  from  the  master  and  consignee  of  each  of  the  four  ships,  at  the 
same  time  tendering  the  freight.  The  goods  were  then  still  on  board 
undelivered,  but  the  master  and  consignee  refused  to  deliver  the  goods 
to  the  plaintiffs,  and  on  the  same  da}*,  delivered  the  whole  of  them  to 
the  defendants. 

On  the  next  day  the  plaintiff  Bird  made  a  formal  demand  of  the 
goods  from  the  defendants,  but  they  refused  to  deliver  up  the  same, 
claiming  title  under  the  stoppage  in  transitu.  On  the  28th  of  April, 
Illins  heard  at  New  York  that  Carne  &  Telo  had  stopped  payment, 
and  on  the  next  da}'  he  executed  a  power  of  attorney  to  Joseph  Hub- 
back  of  Liverpool,  authorizing  him  to  stop  the  goods  in  transitu.  This 
was  received  by  Hubback  on  the  13th  of  May,  and  he  on  that  day 
adopted  and  confirmed  the  previous  stoppage  b}'  the  defendants.  Illins 
afterwards,  and  long  before  the  commencement  of  this  action,  adopted 
and  ratified  all  which  had  been  done  both  by  Hubback  and  the  de- 
fendants. 

The  only  point  for  our  decision  is,  whether  the  title  of  Carne  &  Telo 
had  been  divested  by  the  stoppage  in  transitu ;  for  if  not,  then  un- 
doubtedly, the  goods  belonged  to  the  plaintiffs  as  their  assignees ;  and 
as  there  was  a  clear  conversion  b}-  the  defendants,  the  plaintiffs  would 
be  entitled  to  recover.  Mr.  Crompton,  for  the  defendants,  made  two 
points:  first,  that  there  was  a  good  stoppage  on  the  13th,  under  the 
power  to  Hubback;  and,  secondly,  if  that  be  not  so,  still  that  the  sub- 
sequent ratification  by  Illins  made  the  previous  stoppages  by  the  defend- 
ants good. 

As  to  the  first  point,  we  are  of  tlie  opinion  that  there  could  be  no 
valid  stoppage  in  transitu,  after  the  formal  demand  of  the  goods  by 
Bird  on  the  11th  of  Ma}',  and  the  subsequent  delivery  of  tliem  to  the 
defendants.  The  goods  had  then  arrived  at  Liverpool,  and  were  ready 
to  be  delivered  to  the  parties  entitled.  Bird,  on  behalf  of  the  assignees, 
demanded  the  goods,  and  tendered  tlie  amount  due  for  the  freight.  As- 
suming that  there  had  been  no  previous  stoppage  in  transitu,  the  masters 
of  the  several  ships  were  thereupon  bound  to  deliver  up  the  goods  to 
Bird,  as  representing  Carne  &  Telo,  and  they  could  not,  by  their 
wrongful  detainer  of  them  and  delivering  them  over  to  other  parties, 
prolong  the  transitus,  and  so  extend  the  period  during  which  stoppage 
might  be  made.  The  transitus  was  at  an  end  when  the  goods  had 
reached  the  port  of  destination,  and  when  the  consignees,  having  de- 
manded the  goods  and  tendered  the  amount  of  the  freight,  would  have 
taken  them  into  their  possession  but  for  a  wrongful  delivery  of  them  to 
other  parties. 

On  this  part  of  the  case  we  never  entertained  any  doubt.  The  other 
point,  namely,  whether  the  several  stoppages  by  the  defendants,  before 


SECT.  III.]  BIRD   V.    BROWN.  1043 

the  11th  of  May,  without  an}-  previous  authorit}-  from  Illins,  were  made 
good  by  his  subsequent  ratification  of  what  had  been  done,  appeared  to 
us  one  of  more  nicety  ;  but  on  full  consideration,  we  are  of  opinion 
that  here  too  the  defendants  must  fail.  In  the  first  place,  the  power  of 
attorne}'  to  Hubback,  and  his  subsequent  confirmation  of  the  acts  of  the 
defendants,  may  be  laid  out  of  our  consideration.  The  authorit}-  to 
Hubback  was  no  doubt  executed  b}'  Illins  while  the  goods  were  in 
transitu  ;  but  that  is  not  material,  unless  the  stoppage  itself  took  place 
pending  the  transitus ,'  and,  so  far  as  Hubback  is  concerned,  that  cer- 
tainly was  not  the  case,  for  he  did  not  receive  his  authority  nor  attempt 
to  act  in  the  matter  till  the  13th,  that  is,  not  till  the  da}-  after  the  con- 
version complained  of  in  this  action.  It  is  true  that  he  then,  so  far  as 
he  lawfully  could,  adopted  and  ratified  the  acts  of  the  defendants,  but 
this  was  afterwards,  and  before  the  commencement  of  this  action,  done 
b}'  Illins  himself;  and  so  if  such  ratification  is  good,  there  is  no  neces- 
sit}'  for  relying  on  the  ratification  of  Hubback. 

This,  therefore,  brings  us  to  the  real  question,  which  is,  whether  the 
ratification  by  Illins,  after  a  conversion  by  the  defendants,  can  have  the 
effect  of  altering  retrospectiveh'  the  ownership  of  the  goods,  so  as  to 
prevent  the  plaintiffs  from  saying  that  the  goods  were  theirs  at  the 
time  of  the  conversion,  which,  if  no  subsequent  ratification  had  oc- 
curred, certainly  were  theirs  at  that  time,  and  would  have  so  continued. 
We  are  of  opinion  that  the  ratification  b\-  Illins  had  no  such  effect. 
The  doctrine,  Omnis  rotihahitioretrotrahitur  et  priori  mandato  cequi- 
parahir,  is  one  intelligible  in  principle,  and  eas}-  in  its  application,  when 
applied  to  cases  of  contract.  If  A.  B.,  unauthorized  b}-  me,  makes  a 
contract  on  my  behalf  with  J.  S.,  which  I  afterwards  recognize  and 
adopt,  there  is  no  difficulty  in  dealing  with  it  as  having  been  originall}' 
made  by  m}*  authority.  J.  S.  entered  into  the  contract  on  the  under- 
standing that  he  was  dealing  with  me,  and  when  I  afterwards  agreed  to 
admit  that  such  was  the  case,  J.  S.  is  precisel}"  in  the  condition  in 
which  he  meant  to  be  ;  or,  if  he  did  not  believe  A.  B.  to  be  acting  for 
me,  his  condition  is  not  altered  bv  my  adoption  of  the  agency,  for  he 
may  sue  A.  B.  as  principal,  at  his  option,  and  has  the  same  equities 
against  me,  if  I  sue,  which  he  would  have  had  against  A.  B. 

In  cases  of  tort,  there  is  more  difficulty.  If  A.  B.,  professing  to  act 
b}*  my  authority,  does  that  which  prima  fade  amounts  to  a  trespass, 
and  I  afterwards  assent  to  and  adopt  his  act,  there  he  is  treated  as  hav- 
ing from  the  beginning  acted  b}-  my  authority,  and  I  become  a  trespas- 
ser, unless  I  can  justify  the  act,  which  is  to  be  deemed  as  having  been 
done  by  my  previous  sanction.  So  far  there  is  no  difficult}-  in  applying 
the  doctrine  of  ratification  even  in  cases  of  tort.  The  party  ratif}  ing 
becomes  as  it  were  a  trespasser  by  estoppel ;  he  cannot  complain  that 
he  is  deemed  to  have  authorized  that  which  he  admits  himself  to  have 
authorized. 

But  the  authorities  go  much  further,  and  show  that  in  some  cases 
where  an  act  whic-Ii,  if  unanthoiized.  would  amount  to  a  trespass,  has 
been  done  in  the  name  and  on  behalf  of  another,  but  without  previous 


1044  DODGE    V.    HOPKINS.  [CHAP.  X. 

autlioiitj,  the  subsequent  ratification  may  enable  the  party  on  whose 
behalf  the  act  was  done,  to  take  advantage  of  it  and  to  treat  it  as  hav 
ing  been  done  b}'  his  direction.  But  this  doctrine  must  be  taken  with 
the  qualification,  tliat  tlie  act  of  ratification  must  take  place  at  a  time, 
and  under  circumstances,  when  the  ratifying  party  might  himself  have 
lawfully  done  the  act  which  he  ratifies.  Thus  in  Lord  Audlej-'s  case. 
Cro.  Eliz.  561  ;  Moore,  457;  Poph.  17G,  nam.  Lord  Awdeley's  case,  a 
fine  with  proclamation  was  levied  of  certain  land,  and  a  stranger  within 
five  years  afterwards,  in  the  name  of  him  wlio  had  right,  entered  to 
avoid  the  fine.  After  the  five  j-ears,  and  not  before,  the  party  who  had 
the  right  to  the  land  ratified  and  confirmed  tlie  act  of  the  stranger. 
This  was  held  to  be  inoperative  ;  though  such  ratification  within  the 
five  years  would  probabl}'  have  been  good.  Now  the  principle  of  this 
case,  which  is  reported  in  many  books,  and  is  cited  with  approbation 
by  Lord  Coke,  in  Margaret  Podger's  case,  9  Rep.  104  a,  appears  to 
us  to  govern  the  present.  There  the  entr}',  to  be  good,  must  have  been 
made  within  the  five  years  ;  it  was  made  within  that  time,  but  till 
ratified  it  was  merely  the  act  of  a  stranger,  and  so  had  no  operation 
against  the  fine.  By  the  ratification,  it  became  the  act  of  the  part}'  in 
whose  name  it  was  made  ;  but  that  was  not  till  after  the  five  years. 
He  could  not  be  deemed  to  have  made  an  entr}'  till  he  ratified  the  pre- 
vious entry,  and  he  did  not  ratifj'  until  it  was  too  late  to  do  so.  In 
the  present  case,  tbe  stoppage  could  only  be  made  during  the  transitus. 
During  that  period  the  defendants,  without  authority  from  Illins,  made 
the  stoppage.  After  the  transitus  was  ended,  but  not  before,  Illins 
ratified  what  the  defendants  had  done.  From  that  time  the  stoppage 
was  the  act  of  Illins,  but  it  was  then  too  late  for  him  to  stop.  The 
goods  had  already-  become  the  propert}^  of  the  plaintiffs,  free  from  all 
right  of  stoppage. 

We   are  therefore  of  opinion,  that  there  must  be  judgment  for  the 
plaintiffs.  Judgment  for  tlve  plaintiffs?- 


DODGE   y.    HOPKINS. 
Supreme  Court  of  Wisconsin.     1861. 

[14  Wis.  630.] 

Appeal  from  the  Circuit  Court  for  Dane  County. 

Action  commenced,  Februar}-  25,  1860,  to  recover  two  instalments, 
with  interest,  alleged  to  be  due  on  a  land  contract.  The  complaint 
alleges  that  on  the  1st  of  Maj',  1857,  at  INIadison,  in  Dane  Count}-, 
the  plaintiff,  b}*  his  duly  authorized  agent  and  attorne}',  W.  F.  Cool- 
baugh,  entered  into  a  written  contract  with  the  defendant,  under  their 

1  Ace:  Wood  v.  McCain,  7  Ala.  800  (1845) ;  Taylor  v.  Robinson,  14  Cal.  396  (1859) ; 
Pollock  V.  Cohen,  32  Ohio  St.  514  (1877) ;  Lyell  v.  Kennedy,  18  Q.  B.  1).  796  (C.  A. 
1887) ;  s.  c.  reversed  on  another  point,  14  App.  Gas.  437  (H.  L.  1889).  —  Ed. 


SECT.  III.]  DODGE    V.    HOPKINS.  1045 

seals,  by  which  the  defendant  agreed  to  pay  the  plaintiff  $1880,  viz., 
$470  at  the  sealing  and  deliveiy  of  said  agreement  (the  receipt  of 
which  is  therein  acknowledged),  and  the  remainder  in  three  equal  an- 
nual instalments,  with  interest,  &e.,  which  payments  were  to  be  made 
to  the  plaintiff,  his  agent  or  attorney,  at  the  office  of  Williamson,  Cat- 
lin,  &  Barwise,  in  Madison,  and  were  to  appl}-  as  the  purchase  money 
of  lots  8  and  9,  block  62,  in  said  city  of  Madison  ;  that  b}-  said  agree- 
ment the  plaintiff  bound  himself,  his  heirs,  &c.,  that  on  payment  of 
said  suui  of  $1880,  with  interest,  at  the  times  and  in  the  manner  above 
specified,  he  would,  on  demand  thereof,  cause  to  be  executed  and  de- 
livered to  the  defendant  a  good  and  sufficient  deed  of  the  premises, 
free  of  all  incumbrances  except  certain  taxes,  which  the  defendant 
agreed  to  pay ;  that  the  plaintiff  had  always  been  read^-  to  perform  the 
contract  on  his  part;  and  that  the  defendant  had  made  default  in  the 
payment  of  the  instalments  due  on  the  1st  of  May  in  the  years  1858 
and  1859  respectiveh',  for  the  amount  of  which  judgment  was  claimed. 
The  defendant  answered  hy  a  general  denial.^  .  .  .  On  the  trial  the 
plaintiff  offered  in  evidence  the  contract  mentioned  in  the  complaint, 
which  was  signed  "A.  C.  Dodge,  by  W.  F.  Coolbaugli,  Att}-.,"  with  a 
seal  attached  to  said  signature,  and  also  signed  and  sealed  by  the  de- 
fendant. The  plaintiff  at  the  same  time  offered  in  evidence  a  sealed 
instrument,  purporting  to  have  been  executed  on  the  6th  of  August, 
1856,  at  Madrid,  in  the  kingdom  of  Spain,  by  the  plaintiff,  Augustus 
C.  Dodge,  and  his  wife,  Clara  Ann  Dodge,  constituting  William  F. 
Coolbaugh  their  attorney  for  the  sale  and  conveyance  of  certain  lands. 
There  was  annexed  to  this  instrument  a  certificate  of  its  acknowledg- 
ment by  the  plaintiff  and  his  wife,  before  the  Secretar}'  of  Legation  of 
the  United  States  at  Madrid,  dated  on  the  9th  of  August,  1856,  and 
also  a  certificate  of  its  acknowledgment  by  the  plaintiff  alone,  before  a 
notary  public  in  this  State,  dated  July  23,  1859.  The  provisions  of 
this  power  of  attorne}'  are  sufficientl}-  slated  in  the  opinion  of  tliis 
court.  Tiie  defendant  objected  to  the  introduction  in  evidence  of  the 
contract  and  power  of  attorney.  "1.  Because  the  execution  of  the 
contract  was  not  proven.  2.  Because  the  power  of  attorne}'  did  not 
authorize  the  attorney  to  sell  the  individual  lands  of  A.  C.  Dodge,  or 
to  execute  a  contract  in  the  name  of  the  plaintiff  alone.  3.  Because 
the  authority  of  Coolbaugh  to  make  the  contract  was  not  shown." 
The  court  overruled  the  objection.  After  reading  the  contract  and 
power  of  attorney,  and  presenting  a  computation  of  the  amount  due, 
the  plaintiff  rested.  The  defendant  moved  for  a  nonsuit  on  the  ground 
that  the  power  of  attorney  did  not  authorize  Coolbaugh  to  make  said 
contract,  and  that  the  facts  proven  did  not  constitute  a  cause  of  action, 
which  motion  was  overruled.  The  defendant  then  rested,  and  asked 
the  court  to  instruct  the  jury  "  that  the  deliver}-  of  the  power  of  attor- 
ney to  Coolbaugh,  and  the  time  of  such  deliver}-,  were  questions  of  fact 

I  Statements  as  to  au  application  for  leave  to  file  a  supplemental  answer  have  been 
uiiiitted.  —  Ei>. 


1046  DODGE  V.    HOPKINS.  [CHAP.  X. 

for  the  jury  to  find  ;  and  that  in  the  absence  of  proofs  as  to  the  time  of 
deliveiy,  the  presumption  was  that  it  was  delivered  at  the  time  it  was 
acknowledged."  This  instruction  the  court  refused,  but  instructed  the 
jur}'  that  in  the  absence  of  proof  the  presumption  was  that  the  power 
of  attorney  was  delivered  to  the  agent,  Coolbaugh,  at  the  time  it  bears 
date.  Verdict  and  juchjinent  for  the  plaintiff . 

J.  C.  ITopkins,  for  appellant. 

Abbott,  Gregory,  &  Pinney,  for  respondent. 

Dixon,  C.  J.^  Of  the  questions  arising  upon  the  trial,  the  first  is 
■whether  the  agent,  Coolbaugh,  was  authorized  b}'  the  letter  of  attor- 
ney offered  in  evidence  to  sell  the  lands  of  which  the  plaintiff  was  sole 
owjier.  We  think,  npon  the  facts  of  the  case  as  now  presented,  that 
he  was  not.  His  agency  was  special,  and  the  authority  conferred  dis- 
tinctly stated.  It  was  a  joint  letter,  being  executed  by  the  plaintiff 
and  Clara  Ann,  his  wife.  The  business  to  be  transacted  was  that  in 
which  the}'  were  jointly"  concerned.  The  agent  was  to  sell  and  convey 
the  lots  and  outlets  of  which  the}'  were  possessed  in  the  cit}'  of  Madi- 
son, —  more  particularly  those  which  were  conveyed  to  them  by  James 
Duane  Dot}',  as  trustee  of  the  Four  Lake  Company,  and  Moses  M. 
Strong,  as  attorney'  of  the  late  Stevens  J.  Mason,  for  the  numbers  and 
description  of  which  reference  was  made  to  the  records  of  the  deeds  in 
the  county  of  Dane.  He  was  to  execute  and  deliver  for  them,  and 
in  their  names  and  behalf,  all  necessary  deeds  and  other  instruments 
in  writing.  This  was  the  substance  of  the  authority  given.  No  refer- 
ence was  made  to  the  separate  property  of  either  of  the  parties  ;  and, 
if  the}'  had  any,  it  cannot  be  inferred  that  they  intended  to  authorize 
Coolbaugh  to  dispose  of  it.  The  rule  of  law  is  well  settled  that  the 
authority  of  a  special  agent  must  be  strictly  pursued,  and  if  it  is  not, 
the  principal  will  not  be  bound.  The  authorities  on  this  subject  are 
collected  and  reviewed  by  Chief  Justice  Savage,  in  Rossiter  v.  Rossiter, 
8  Wend.  494.  It  seems  to  us  too  obvious  for  argument  that  upon  the 
face  of  the  instrument  the  agent  had  no  power  to  sell  the  plaintiff's 
separate  estate.  We  are  to  dispose  of  the  question  as  if  the  plaintiff 
were  here  resisting  instead  of  endeavoring  to  avail  himself  of  the  au- 
thority exercised.  If  the  positions  of  the  parties  were  reversed,  —  the 
plaintiff  repudiating  the  contract  as  unauthorized,  and  the  defendant 
seeking  a  specific  performance,  —  it  would  hardly  be  seriously  con- 
tended that  the  letter  of  attorney  alone  would  bind  him.  Reference 
was  made  to  the  records  in  the  office  of  the  register.  An  examination 
of  the  conveyances  referred  to  might  reveal  the  fact  that  the  title  of  the 
lots  was  vested  solely  in  the  plaintiff,  and  that  there  was  no  joint  estate 
to  which  the  letter  of  attorney  could  be  applied,  which  would  place 
matters  in  a  very  different  attitude.  It  might  then  be  very  reasonably 
urged  that  Mrs.  Dodge  joined  in  the  letter  of  attorney  for  the  purpose 
of  releasing  her  right  of  dower  in  the  estate  of  her  husband.     Unaided 

1  After  holding  that  there  was  uo  error  in  refusing  to  receive  the  supplemental 
answer. —  Ed. 


SECT.  III.]  DODGE    V.    HOPKINS.  1047 

by  extrinsic  evidence,  we  cannot  assume  that  there  was  no  joint  estate 
to  which  the  authority  could  be  applied,  or  depart  from  the  strict  lan- 
guage of  the  instrument. 

We  are  next  to  ascertain  the  effect  of  this  want  of  authority  upon 
the  rights  of  the  defendant.  It  is  very  clear,  in  the  present  condition 
of  the  case,  that  the  plaintiff  was  not  bound  b}'  the  contract,  and  that 
he  was  at  liberty  to  repudiate  it  at  an}-  time  before  it  had  actually  re- 
ceived his  sanction.  Was  the  defendant  bound?  And  if  he  was  not, 
could  the  plaintiff,  by  his  sole  act  of  ratification,  make  the  contract  ob- 
ligatory upon  him  ?  We  answer  both  these  questions  in  the  negative. 
The  covenants  were  mutual,  —  those  of  the  defendant  for  the  pa3'ment 
of  the  mone}-  being  in  consideration  of  that  of  the  plaintiff  for  the  con- 
veyance of  the  lands.  The  intention  of  the  parties  was  that  the}-  should 
be  mutually  bound  ;  that  each  should  execute  the  instrument  so  that 
the  other  could  set  it  up  as  a  binding  contract  against  him,  at  law  as 
well  as  in  equity,  from  tbe  moment  of  its  execution.  In  such  cases  it 
is  well  settled,  both  on  principle  and  authorit}-,  that  if  either  part}-  neg- 
lects or  refuses  to  bind  himself,  the  instrument  is  void  for  want  of 
mutuality,  and  the  party  who  is  not  bound  cannot  avail  himself  of  it  as 
obligatory  upon  the  other.  Townsend  v.  Corning,  23  Wend.  435,  and 
Same  u.  Hubbard,  4  Hill,  351,  and  cases  there  cited.  The  same  au- 
thorities also  show  that  where  the  instrument  is  thus  void  in  its  incep- 
tion, no  subsequent  act  of  the  party,  who  has  neglected  to  execute  it, 
can  render  it  obligatory  u|)on  the  party  who  did  execute  without  his 
assent.  The  opinion  of  Judge  Bronson,  in  the  first-named  case,  is  a 
conclusive  answer  to  all  arguments  to  be  drawn  from  the  subsequent 
ratification  of  the  party  who  was  not  originally  bound.  In  that  case, 
as  in  this,  the  vendors  had  failed  to  bind  themselves  by  the  agreement. 
He  says  :  "  It  would  be  most  extraordinary  if  the  vendors  could  wait 
and  speculate  upon  the  market,  and  then  abandon  or  set  up  the  con- 
tract as  their  own  interests  might  dictate.  But  without  any  reference 
to  prices,  and  whether  the  delay  was  long  or  short,  if  this  was  not  the 
deed  of  the  vendee  at  the  time  it  was  signed  by  himself  and  Baldwin 
(the  agent),  it  is  impossible  that  the  vendors,  by  any  subsequent  act 
of  their  own  without  his  assent,  could  make  it  his  deed.  There  is,  I 
think,  no  principle  in  the  law  which  will  sanction  such  a  doctrine."  The 
only  point  in  which  the  facts  in  that  case  differ  materially  from  those 
here  presented,  is  that  no  part  of  the  purchase  money  was  advanced  to 
the  agent.  But  that  circumstance  cannot  vary  the  application  of  the 
principle.  The  payment  of  the  money  to  the  agent  did  not  affect  the 
validity  of  the  contract,  or  make  it  binding  upon  the  plaintiff.  He  was 
at  liberty  to  reject  the  money,  and  his  acceptance  of  it  was  an  act  of 
ratification  with  which  the  defendant  was  in  no  way  connected,  and 
which,  although  it  might  bind  him,  imposed  no  obligation  upon  the 
defendant  until  he  actually  assented  to  it.  It  required  the  assent  of 
both  parties  to  give  the  contract  any  vitality  or  force. 

I  am  well  aware  that  there  are  dicta  and  observations  to  be  found  in 


1048  DODGE    V.    HOPKINS.  [CHAP.  X. 

the  books  •which,  if  taken  literall}',  would  overthrow  the  doctrine  of  the 
cases  to  which  I  have  referred.  It  is  said,  in  Lawrence  v.  Taylor,  5 
Hill,  113,  that  "such  adoptive  authority  relates  back  to  the  time  of 
the  transaction,  and  is  deemed  in  law  the  same  to  all  purposes  as  if  it 
had  been  given  before."  And  in  Newton  v.  Bronson,  3  Kern.  594,  the 
court  say  :  "•That  a  subsequent  ratification  is  equally  eflectual  as  an 
original  authority  is  well  settled."  Such  expressions  are,  no  doubt,  of 
frequent  occurrence  ;  and  although  they  displaj'  too  much  carelessness 
in  the  use  of  language,  yet  if  they  are  understood  as  applicable  only  to 
the  cases  in  which  they  occur,  they  may  be  considered  as  a  coriect 
statement  of  the  law.  The  inaccuracy  consists  in  not  properly  distin- 
guishing between  those  cases  where  the  subsequent  act  of  ratification 
is  put  forth  as  the  foundation  of  a  right  in  favor  of  the  party  who  has 
ratified,  and  those  where  it  is  made  the  basis  of  a  demand  against  him. 
There  is  a  broad  and  manifest  diflference  between  a  case  in  which  a 
partj'  seeks  to  avail  himself,  b}'  subsequent  assent,  of  the  unauthorized 
act  of  his  own  agent,  in  order  to  enforce  a  claim  against  a  third  person, 
and  the  case  of  a  party  acquiring  an  inchoate  right  against  a  principal, 
by  an  unauthorized  act  of  his  agent,  to  which  validity  is  afterwards 
given  by  the  assent  or  recognition  of  the  principal.  Paley  on  Agenc}', 
192,  note.  The  principal  in  such  case  ma}',  by  his  subsequent  assent, 
bind  himself;  but  if  the  contract  be  executory,  he  cannot  bind  the 
otiier  part}'.  The  latter  may,  if  he  choose,  avail  himself  of  such  assent 
against  the  principal,  which,  if  he  does,  the  contract,  by  virtue  of  such 
mutual  ratification,  becomes  mutuall}'  obligatory.  There  are  many 
cases  where  the  acts  of  parties,  though  unavailable  for  their  own  ben- 
efit, may  be  used  against  them.  It  is  upon  this  obvious  distinction,  J 
apprehend,  that  the  decisions  which  I  have  cited  are  to  be  sustained. 
Lawrence  v.  Taylor  and  Newton  v.  Bronson  were  both  actions  in  which 
the  adverse  part}'  claimed  rights  through  the  agency  of  individuals 
whose  acts  had  been  subsequently  ratified.  And  the  authorities  cited 
in  support  of  the  proposition  laid  down  in  the  last  case  (4  Wend.  219  ; 
1  Pick.  372  ;  3  Hill,  552  ;  5  Id.  137  ;  9  Cranch,  153,  and  5  Wheat.  241) 
will,  when  examined,  be  found  to  have  been  cases  where  the  subsequent 
assent  was  employed  against  the  persons  who  had  given  it  and  taken 
the  benefit  of  the  contract.^  .   .   . 

No  original  authority  to  the  agent  making  the  contract  having  been 
shown,  and  no  evidence  offered  on  the  trial  of  such  ratification  as  bound 
the  defendant,  it  follows  that  the  judgment  must  be  reversed,  and  a  new 
trial  awarded.  Ordered  accordingly.^ 

1  Here  followed  passages  holding  that,  under  the  Wisconsin  Statute  of  Frauds,  a 
contract  for  the  purchase  of  land  does  not  hind  the  vendee,  unless  signed  by  the  vendor 
or  by  his  lawfully  authorized  agent.  —  Ed. 

■■^  Ace:  Atlee  v.  Bartholomew,  69  Wis.  43  (1887). 

See  Andrews  v.  JFAna  Life  Ins.  Co.,  92  N.  Y.  596,  604  (1883) ;  McCliutock  v.  South 
Penn  Oil  Co.,  146  Pa.  144  (1892). 

There  are  comments  on  the  principal  case  in  5  Am.  St.  Rep.  109;  24  Am.  L.  Rev 
580;  2.5  Am.  L.  Rev.  74;  and  9  Harv.  Law  Rev.  60.  —  Ed. 


SECT.  III. J  WALTER   V.   JAMES.  1049 


WALTER    V.   JAMES. 

EXCHEQUKR.       1871. 
[L.  R.  6  Ex.  124.] 

Action  on  an  attorney's  bill,  amounting  to  £63  lis.  3d.  The  defend- 
ant paid  into  court  £3  17s.  .Sc/.,  and  to  the  residue  pleaded  payment. 

The  cause  was  tried  before  Mellor,  J.,  at  the  Gloucestershire  Summer 
Assizes,  1870.  It  appeared  at  the  trial  that  the  plaintiff  had  a  claim 
against  the  defendant  for  professional  services  ;  that  Southall,  acting 
as  the  defendant's  attorney,  had  been  concerned  in  negotiation  with 
the  plaintiff  in  respect  of  this  claim,  and  had  induced  him  to  accept 
£60  in  discharge  of  it ;  that  Southall  had  been  instructed  b\-  defendant 
to  pa}-  that  sum  to  plaintiff,  but  that  before  paying  it  those  instructions 
had  been  countermanded,  and  he  had  ceased  to  act  as  defendant's  at- 
torney ;  that,  nevertheless,  considering  himself  under  a  moral  obliga- 
tion to  the  plaintiff  to  see  him  paid,  he  subsequenth-  did  pa}-  the  £60, 
and  paid  it,  as  he  stated  in  evidence,  in  discharge  of  plaintiff's  claim 
upon  defendant ;  but  that  afterwards,  and  before  any  act  of  defendant 
assenting  to  or  adopting  the  payment,  he  requested  plaintiff  to  return 
him  the  money,  which  was  accordingly  done.  It  was  left  in  some  doubt 
on  the  evidence  whether  Southall  did  or  did  not  inform  plaintiff,  at  the 
time  of  paying  him,  that  he  had  ceased  to  act  as  defendant's  attorney. 
No  evidence  was  given  of  any  adoption  of  the  payment  by  defendant 
before  plea. 

The  learned  judge  ruled  that  the  defendant  could  take  advantage  of 
the  payment  by  Southall,  and  a  verdict  was  entered  for  the  defendant, 
with  leave  to  the  plaintiff  to  move  to  enter  the  verdict  for  him,  the 
court  to  have  power  to  draw  inferences  of  fact.  A  rule  having  been 
obtained  accordingly, 

Cace  {Hxiddleston,  Q.  C,  with  him),  showed  cause. 

Henry  James.,  Q.  C,  and  Griffits.,  in  support  of  the  rule. 

Cur.  adv.  vult. 

Kellt,  C.  B.  [after  stating  the  facts  of  the  case,  proceeded  :]  South- 
all,  therefore,  in  paying  the  debt  appeared  to  act  as  the  defendant's 
agent ;  but  it  turned  out  afterwards  that,  although  he  had  originally 
been  authorized  by  the  defendant  to  come  to  an  arrangement  with  the 
plaintiff,  and  to  make  this  pa}ment,  that  authority  had  been  revoked 
before  the  payment  was  made.  lie  did  not,  however,  coumiunicate  to 
the  plaintiff  that  he  had  no  authority  ;  on  the  contrary,  he  professed 
to  act  for  tlie  defendant,  and  the  plaintiff  believed  him  to  be  so  acting, 
and  received  the  sum  paid  in  full  satisfaction  of  his  debt.  But  when 
the  plaintiff  found  that  the  money  had  been  paid  without  the  defend- 
ant's  authority,   he    returned   the   money   to  Southall.     And  now   the 


1050  WALTER   V.    JAMES.  [CHAP.  X, 

question  is,  whether  the  defendant  can  b}-  his  plea  of  payment  adopt 
and  ratify  the  act  of  Southall,  although  before  action  that  act  had,  by 
arrangement  between  the  plaintiff  and  Southall,  been  undone. 

Now,  the  law  is  clear,  that  where  one  makes  a  pa3ment  in  the  name 
and  on  behalf  of  another  without  authoritj',  it  is  competent  for  the 
debtor  to  ratify'  the  pa^-ment ;  and  there  seems  to  be  no  doubt  on  the 
authorities  that  he  can  ratify  after  action  by  placing  the  plea  of  pa}'- 
ment  on  the  record.  Prima  facie^  therefore,  we  have  here  a  ratiQca- 
tion  of  the  payment  by  the  defendant's  plea ;  but  whether  the  payment 
was  then  capable  of  ratification  depends  on  whether  previously  it  was 
competent  to  the  plaintiff  and  Southall,  apart  from  the  defendant,  to 
cancel  what  had  taken  place  between  them.  I  am  of  opinion  that  it 
was  competent  to  them  to  undo  what  they  had  done.  The  evidence 
shows  that  the  plaintiff  received  the  money  in  satisfaction  under  the 
mistaken  idea  that  Southall  had  authority  from  the  defendant  to  pa}' 
him.  This  was  a  mistake  in  fact,  on  discovering  which  he  was,  I  think, 
entitled  to  return  the  monej-,  and  apply  to  his  debtor  for  payment.  If 
he  had  insisted  on  keeping  it,  the  defendant  might  at  any  moment  have 
repudiated  the  act  of  Southall,  and  Southall  would  then  have  been  able 
to  recover  it  from  the  plaintiff  as  money  received  for  Southall's  use.  I 
am,  therefore,  of  opinion  tliat  the  plaintiff,  who  originally  accepted 
this  money  under  an  entire  misapprehension,  was  justified  in  returning 
it,  the  position  of  the  parties  not  having  been  in  the  meantime  in  any 
way  altered,  and  that  the  defendant's  plea  of  payment  fails.  The  rule 
must  accordingfy  be  made  absolute. 

Martin,  B.  I  am  of  the  same  opinion.  The  rule  which  I  conceive 
to  be  the  correct  one  ma}'  be  stated  as  follows.  When  a  payment  is 
not  made  by  way  of  gift  for  the  benefit  of  the  debtor,  but  by  an  agent 
who  intended  that  he  should  be  reimbursed  by  the  debtor,  but  who  had 
not  the  debtor's  authority  to  pay,  it  is  competent  for  the  creditor  and 
the  person  paying  to  rescind  the  transaction  at  any  time  before  the 
debtor  has  affirmed  the  payment,  and  repay  the  money,  and  thereupon 
the  payment  is  at  an  end,  and  the  debtor  again  responsible.  This 
being,  in  my  judgment,  the  true  rule,  the  plaintiff  in  this  case  was 
entitled  to  recover. 

Kelly,  C.  B.  My  brother  Cleasby  concurs  in  the  judgment  of  the 
court.  Rule  absolute.'^ 

1  See  Stillwell  v.  Staples,  19  N.  Y.  401,  406  (1859).  —Ed. 


SECT.  III.]     WHITING  V.  MASSACHUSETTS  MUTUAL  LIFE  INS.  CO.     1051 


WHITING,  Administrator,  v.  MASSACHUSETTS    MUTUAL 
LIFE   INSURANCE   COMPANY. 

Supreme  Judicial  Court  of  Massachusetts.     1880. 

[129  Mass.  240.] 

Colt,  J.  It  is  expressly  provided  in  the  policy  of  life  insurance 
upon  wliich  this  action  is  l)rouy:ht,  that  it  "  shall  not  take  effect  until 
the  advance  premium  hereon  shall  have  been  paid  during  the  lifetime 
of  the  person  whose  life  is  hereby  insured." 

It  appeared  at  the  trial,  that,  in  February,  Henry  L.  Fairfield,  the 
plaintiff's  intestate,  made  application  for  insurance  in  the  defendant 
company  ;  and  that,  in  the  early  part  of  May  following,  the  policy  in 
suit  was  left  at  Fairfield's  place  of  business,  by  an  agent  of  the  com- 
pany, who  by  letter  requested  payment  of  the  premium  "  if  the  polic}- 
was  correct  and  satisfactory."  This  request  was  repeated  by  letter 
dated  May  21,  addressed  to  Fairfield,  who  was  then  at  home,  having 
arrived  there  in  ill  health  on  the  18th  of  the  same  month.  He  died  of 
this  illness  on  May  27.  The  letter  of  the  21st  was  opened  by  his 
sister,  who,  without  communication  with  or  direction  from  him,  caused 
the  advance  premium  to  be  paid  to  the  compan}-,  by  a  check  signed  b}' 
a  member  of  the  firm  in  which  Fairfield  was  a  partner.  Fairfield  died 
without  knowledge  of  this  payment. 

Upon  this  state  of  facts,  it  is  plain  that  no  contract  of  insurance 
existed  between  the  parties  at  the  time  of  the  death  of  the  plaintiff's 
intestate.  The  possession  of  the  policy,  without  a  waiver,  on  the  part 
of  the  company,  of  the  condition  upon  the  performance  of  which  it 
■was  to  take  effect,  does  not,  on  the  facts  disclosed,  show  a  deliver}'  of 
it  in  completion  of  the  contract,  or  furnish  any  evidence  that  the  minds 
of  the  parties  had  met.  It  is  not  enough  that  the  form  of  the  police- 
had  been  approved,  for  it  was  still  optional  with  Fairfield  whether  he 
would  bv  paj'ment  make  it  a  binding  contract.  If  he  declined  or  neg- 
lected to  pa}-,  the  compan}-  would  have  no  claim  for  the  premium 
against  him,  or  against  his  estate,  because  the  risk  never  attached.  A 
payment  bv  a  stranger,  made  without  the  knowledge  or  consent  of  the 
assured,  though  made  with  his  mone}-,  would  not  bind  him  or  the  com- 
panv  ;  and  the  monev,  so  wrongfullv  appropriated,  could  be  recovered 
back  b}-  him  or  by  his  administrator.  Hoyt  v.  Mutual  Benefit  Ins.  Co., 
98  Mass.  539  ;  Markey  v.  Mutual  Benefit  Ins.  Co.,  103  Mass.  78  ;  Badger 
V.  American  Ins.  Co.,  103  Mass.  244  ;  Thayer  r.  Middlesex  Ins.  Co.,  10 
Pick.  326  ;  Piedmont  &  Arlington  Ins.  Co.V  Ewing.  92  U.  S.  377. 

After  the  death  of  Fairfield,  the  administrator  of  his  estate,  and  the 
widow,  to  whom  the  policy  was  made  payable,  joined  in  the  proofs  of 
loss,  and  the  administrator,  for  the  benefit  of  the  widow,  brought  this 
action  against  the  company.  But  these  proceedings  do  not  amount  to 
such  ratification  of  the  unauthorized  payment  by  the  sister  as  will  give 
validity  to  the  polic}'.     The  difHculty  is,  that  there  was  no  contract 


1052      WHITING  V.  MASSACHUSETTS  MUTUAL  LIFE  INS.  CO.       [CHAP.  X. 

existing  at  the  time  of  the  death  to  be  ratified.  The  pa3Tnerit  of  the 
premium  was  not  the  payment  by  another  of  a  debt  due  from  the 
intestate,  which  the  administrator,  without  affecting  the  rights  of  the 
compan}-,  would  have  power  to  ratify  ;  and  to  say  that  the  adminis- 
trator maj'  now  do  it,  so  as  to  bind  the  company,  would  be  to  say  that 
a  policy  of  life  insurance  ma}'  be  made  to  take  effect  as  a  contract  by 
an  act  of  ratification  by  the  administrator  after  the  death  of  the  person 
whose  life  is  thereby  insured  ;  or,  as  was  said  b}'  Mr.  Justice  Miller  in 
Piedmont  &  Arlington  Ins.  Co.  v.  Ewing,  above  cited,  "to  affirm  that 
one  part}'  to  a  negotiation  can  dela}'  his  consent  to  the  terms  of  the 
contract  until  the  changes  of  fortune  enable  him  to  reap  all  the  benefits, 
and  throw  all  the  losses  on  the  other  side,  and  then,  for  the  first  time, 
do  what  was  necessary  on  his  part  to  make  the  contract  obligator}-." 

It  is  laid  down,  in  general  rules  governing  the  relation  of  principal 
and  agent,  that  no  unauthorized  act  of  the  latter  can  be  made  valid  by 
subsequent  ratification  to  the  prejudice  of  third  persons  without  their 
consent;  and  that  no  ratification  is  valid  unless  the  principal  at  the 
time  of  ratifying  the  act  has  power  to  confer  the  authority  for  such  act. 
Sturtevant  v.  Robinson,  18  Pick.  175;  Bird  v.  Brown,  4  Exch.  786; 
McCracken  v.  San  Francisco,  16  Cal.  591,  624;  Story  on  Agencv, 
§§  245,  246. 

It  is  contended  that  there  is  some  authority  for  the  proposition  that 
the  payment  of  a  renewal  premium  by  a  stranger  to  the  contract  after 
it  becomes  due  will  be  sufficient  to  prevent  the  lapsing  of  a  policy  on 
the  life  of  one  who  dies  after  it  becomes  due  and  before  it  is  paid  ; 
although  the  policy  contains  the  usual  condition  requiring  its  payment 
in  order  to  continue  the  contract  in  force.  But  the  case  of  Howell  v. 
Knickerbocker  Ins.  Co.,  44  N.  Y.  276,  cited  by  the  plaintiff,  was 
decided  expressly  on  the  ground  that  there  had  been  a  waiver  by  the 
company  of  a  prompt  payment  of  the  annual  premium,  so  that  the 
contract  of  insurance  was  in  force  at  the  time  of  the  death.  See  also 
Pritchard  v.  Merchants'  &  Tradesmen's  Assurance  Society,  3  C.  B. 
(N.  S.)  622.  Whatever  may  be  the  law  as  applicable  to  the  payments 
of  annual  premiums  under  a  policy  which  has  once  attached,  we  are  of 
of  opinion  that  the  contract  cannot  be  originally  created  without  the 
consent  of  the  assured. 

Under  the  law  of  marine  insurance,  as  laid  down  in  the  cases  cited 
by  the  plaintiff,^  it  is  said  that  when  a  vessel  is  insured  by  a  part-owner 
for  the  benefit  of  the  other  part-owners,  without  their  previous  author- 
ity, the  latter  may  ratify  the  act,  after  knowledge  of  the  loss.  But 
that  is  because  in  those  cases  a  valid  contract  of  insurance  is  at  once 
created  by  the  part-owner  by  payment  of  the  premium,  or  by  a  promise 
to  pay  upon  which  the  policy  is  issued. 

The  judge  at  the  trial  refused  to  rule,  as  requested  by  the  defendant, 
that  the  payment  of  the   premium  by  the  sister,  Miss  "Whiting,  would 

^  The  plaintiff's  counsel  cited  on  this  point  Ha2:edorn  v.  Oliverson,  2  M.  &  S.  485', 
Routh  V.  Thompson,  13  East,  274;  Barlow  v.  Leckie,  4  J.  B.  Moore,  8;  Finney  v. 
Fairhaven  Ins  Co.,  5  Met.  192. —  Rep. 


SECT.  III.]  BOLTON    PARTNERS   V.    LAMBERT.  1053 

not  be  a  payment  by  Fairfield  which  would  make  tlie  defendant  liable 
on  the  polic}' ;  and  for  tliis  refusal,  the  entry  must  be 

ExceiAions  sustained. 

G.  Wells,  for  the  defendant. 

G.  M.  Stearns,  for  the  plaintiff. 


BOLTON  PARTNERS  v.  LAMBERT. 

Chancery  Division.  1888. 

Court  of  Appp:al.  1889. 

[41  Ch.  D.  295.] 

The  plaintiffs,  Bolton  Partners  (Limited),  were  a  limited  compan}-, 
incorporated  under  the  Companies  Acts,  and  were  owners  of  a  factoiy 
and  hereditaments  at  Lavenham,  Suffolk,  known  as  the  Lavenham 
Sugar  Works,  for  the  residue  of  a  term  of  ten  years  from  the  25th  of 
March,  1884. 

On  the  8th  of  December,  188G,  the  defendant,  A.  J.  Lambert,  wrote 
to  P.  Scratchley,  who  was  then  acting  as  managing  director  of  the 
company  in  the  absence  of  the  chairman,  a  letter  in  which  he  said :  — 

"  Re  Lavenham  Sugar  Works. 

"  I  beg  to  make  you  an  offer  for  the  above-mentioned  works,  and  at 
the  same  time  allow  me  to  call  your  attention  to  the  following  facts, 
which  are  matters  too  important  to  be  overlooked  on  either  side." 

He  then  stated  several  particulars  in  which  expense  must  be  incurred 
b}'  the  purchaser,  and  proceeded  as  follows  :  — 

"As  it  is  absolutely  necessary  to  commence  the  new  works  almost 
immediately,  I  propose  to  take  the  factory  over  from  the  25th  of  March, 
1887,  possession  to  be  given  on  the  1st  of  January,  1887,  to  enable 
me  to  get  the  necessary  alterations  completed,  and  also  to  get  the  new 
machinery  fixed.  Taking  into  consideration  all  the  facts  which  I  have 
brought  under  your  notice,  I  think  a  fair  annual  rental  to  offer  3-ou  for 
the  use  of  the  factory  (including  depreciation  of  the  buildings,  plant, 
and  machinery)  would  be  £3,500,  the  lease  to  be  the  remainder  of  your 
term,  and  subject  to  the  conditions  described  therein.  But  as  the  wall 
requires  repairs,  and  the  machinery,  which  is  now  dismantled,  will 
require  to  be  restarted,  an  allowance  of  £500  should  be  made  from  the 
first  quarter's  rent,  thus  reducing  the  rent  for  the  first  year  to  £3,000, 
which  should  be  paid  on  the  usual  quarter  days." 

Scratchley  wrote  to  the  defendant  on  the  9th  of  December  acknowl- 
edging the  receipt  of  his  letter,  and  saying  that  he  would  refer  the 
matter  to  the  directors. 

Scratchle}-  was  a  member  of  the  works  committee,  which  was  appointed 
by  the  board  of  directors.  On  the  13th  of  December,  1886,  a  meeting 
of  the  works  committee  was  held  at  which  it  was  resolved  that  the 
defendant's  oflTer  should  be  accepted,  and  that  a  letter  should  be  written 


1054  BOLTON    PARTNERS   V.   LAMBERT.  [CHAP.  X. 

to  him  accordingly,  and  that  the  company's  solicitor  should  be  instructed 
to  prepare  the  necessary  documents.  It  was  admitted  that  the  works 
committee  had  no  power  to  accept  the  defendant's  offer,  or  to  bind  the 
company  by  a  sale  of  its  property.  On  the  same  day,  Scratchley  wrote 
to  the  defendant  a  letter  in  which  he  informed  him  that  the  directorfi 
accepted  the  offer  contained  in  his  letter  of  the  8th  of  December,  and 
that  the  company's  solicitor  had  been  instructed  to  prepare  the  neces- 
sar}'  documents. 

On  the  17th  of  December  the  plaintiffs'  solicitor  sent  the  defendant 
a  draft  agreement  containing  certain  stipulations  not  mentioned  in  the 
defendant's  offer,  and  in  particular  a  stipulation  as  to  a  guarantee  for 
rent.  To  these  the  defendant  objected.  After  some  correspondence 
the  defendant,  on  the  13th  of  January,  1887,  wrote  to  the  plaintiffs 
withdrawing  his  offer  on  the  ground  that  he  had  been  misled  by  the 
statements  that  had  been  made  to  him  as  to  the  value  of  the  property. 

On  the  17th  of  Januar}-,  1887,  the  writ  in  this  action  was  issued 
by  direction  of  the  board  of  directors.  The  plaintiffs  claimed  specific 
performance  of  the  agreement  contained  in  the  letters  before  stated. 

On  the  28th  of  January  the  board  of  directors  held  a  meeting  at 
which  they  confirmed  the  minutes  of  the  meeting  of  the  works  committee 
of  the  13th  of  December,  1886  ;  and  Scratchley's  letter  of  the  same 
date  was  also  read  and  confirmed. 

The  defendant  denied  that  there  had  been  any  complete  contract ; 
and  contended  that  after  the  defendant  had  repudiated  his  offer 
it  was  too  late  for  the  company  to  ratify  Scratchley's  acceptance. 
He  also  alleged  that  he  had  been  induced  to  make  the  offer  by 
misrepresentation. 

The  action  came  on  before  Mr.  Justice  Kekewich  on  the  19  th  of 
December,  1888. 

Warmington,  Q.  C,  and  Chadioyck  Healey,  for  the  plaintiffs. 

Brice^  Q.  C,  and  Illbton,  for  the  defendant. 

Kekewich,  J.-^  The  doctrine  of  ratification  is  this,  that  when  a  prin- 
cipal on  whose  behalf  a  contract  has  been  made,  though  it  may  be  made 
in  the  first  instance  without  his  authority,  adopts  it  and  ratifies  it,  then, 
whether  the  contract  is  one  which  is  for  his  benefit  and  which  he  is 
enforcing,  or  which  is  sought  to  be  enforced  against  him,  the  ratification 
is  referred  to  the  date  of  the  original  contract,  and  the  contract  becomes 
as  from  its  inception  as  binding  on  him  as  if  he  had  been  originally  a 
party.  That  doctrine,  combined  with  one  in  respect  of  mutuality,  the 
limits  of  which  I  have  already  stated,  seems  to  me  to  get  rid  entirely  of 
the  third  objection  on  the  ground  of  ultra  vires,  and  to  dispose  of  this  case. 
There  must,  therefore,  I  tliink,  be  judgment  for  specific  performance.  .  .  . 

From  this  judgment  the  defendant  appealed. 
Brice,  Q.  C,  and  Rlhton^  for  the  appellant.^ 

1  At  the  beginning  and  at  the  end  of  this  opinion  are  omitted  passages  not  dealing 
with  ratification.  —  Ed. 

-  In  reprinting  this  argument,  passages  not  dealing  with  ratification  have  been 
omitted.  —  Ed 


SECT.  III.]  BOLTON    PARTNERS   V.   LAMBERT.  1055 

An  offer  may  be  withdrawn  witbout  formal  notice  at  any  time  before 
acceptance.  Dickinson  v.  Dodds,  2  Ch.  D.  463  ;  and  after  withdrawal 
any  ratification  comes  too  late.  Thus,  in  Lyell  v.  Kenned}',  18  Q.  B.  D. 
796,  814,  it  was  held  that  ratification  after  the  Statute  of  Limitations 
had  run  came  too  late.  [Lopes,  L.  J,,  referred  to  Walter  v.  James, 
Law  Rep.  6  Ex.  124.]  That  case  is  in  our  favor;  after  the  contract 
was  rescinded  ratification  was  too  late.  Stoppage  in  transitu  bj'  a 
person  having  no  authority  cannot  be  ratified  after  the  goods  have  got 
into  the  hands  of  third  parties.  Bird  v.  Brown,  4  Ex.  786.  Li  Brewer 
V.  Broadwood,  22  Ch.  D.  105,  the  principle  was  acted  on  that  ratifica- 
tion must  be  before  the  contract  is  broken  ofl^,  and  so  in  Lee  v.  Soaraes, 
36  W.  R.,  884.  [Cotton,  L.  J.  That  case  comes  to  this:  something 
is  necessary  to  make  a  good  title.  The  purchaser  says  get  it  within  a 
certain  time,  if  not,  I  withdraw.  That  is  not  like  a  ca.se  of  a  sale  by  an 
agent  without  authority.]  If  the  part}'  repudiates,  then  the  negotiation 
is  at  an  end,  and  no  subsequent  confirmation  by  the  principal  can 
revive  it. 

Warmington^  Q.  C,  and  ChadwycJc  Healey,  for  the  plaintiflTs,  were 
not  called  on  to  argue  the  question  whether  there  was  a  complete  con- 
tract between  Scratchley  and  the  defendant,  or  whether  there  had  been 
misrepresentation. 

With  respect  to  the  question  of  ratification,  the  maxim  omnis  ratiha- 
hitio  retrotrahitur  et  mandato  equiparatur  is  applicable  to  this  case. 
It  is  only  a  matter  of  evidence  whether  or  not  the  agent  had  authority 
to  make  the  contract.  If  the  authority  is  proved,  it  makes  no  difference 
at  what  time  it  is  proved.  Brook  v.  Hook,  Law  Rep.  6  Ex.  89.  The 
defendant  argues  that  if  a  man  makes  a  contract  with  an  agent,  there  is 
a  locus poenitenticB  until  the  contract  is  confirmed  by  the  principal ;  but 
there  is  no  trace  of  any  such  doctrine  in  the  law.  He  is  bound,  though 
the  principal  may  not  be.  It  may  seem  unfair  upon  liim,  but  it  is  the 
law.  The  cases  on  marine  insurance  are  strong  instances  of  the  rule 
being  acted  on  in  hard  cases.  Hagedorn  v.  Oliverson,  2  M.  &  S.  485  ; 
Ancona  v.  Marks,  7  H.  cfe  X.  686  ;  Maclean  r.  Dunn,  4  Bing.  722.  The 
only  exceptions  to  the  rule  are  :  (1)  where  a  vested  estate  is  divested  ; 
(2)  when  there  has  been  forgery ;  (3)  where  the  ratification  is  after  the 
time  when  the  act  could  be  done.  In  the  present  case,  the  contract 
being  a  good  binding  contract  there  was  no  power  of  withdrawing  fi'om 
it,  which  would  have  been  in  fact  a  rescission. 

Cotton,  L.  J.^  But  then  it  is  said  that  on  the  13th  of  January,  1887, 
the  defendant  entirely  withdrew  the  offer  he  had  made.  Of  course  the 
withdrawal  could  not  be  effective,  if  it  were  made  after  the  contract 
had  become  complete.  As  soon  as  an  offer  has  been  accepted  the 
contract  is  complete.  But  it  is  said  that  there  could  be  a  withdrawal 
by  the  defendant  on  the  13th  of  January  on  this  ground,  that  the  offer 
of  the  defendant  liad  been  acce[)ted  by  Scratchley,  a  director  of  the 
plaintiflE"  company,  who  was  not  authorized   to  bind  the  company  by 

1  After  discu.ssing  matters  foreign  to  ratification. — Ed. 


1056  BOLTON    PARTNERS   V.    LAMBERT.  [CIIAP.  X. 

acceptance  of  the  offer,  and  therefore  that  until  the  company  ratified 
Scratchley's  act  there  was  no  accei^tance  on  behalf  of  the  conii)any 
binding  on  the  company,  and  therefore  the  defendant  could  withdraw 
his  offer.  Is  that  so?  The  rule  as  to  ratification  by  a  principal  of  acts 
done  b}'  an  assumed  agent  is  that  the  ratification  is  thrown  back  to  the 
date  of  the  act  done,  and  that  the  agent  is  put  in  the  same  position  as 
if  he  had  had  authorit}'  to  do  the  act  at  the  time  the  act  was  done  by 
him.  Various  cases  have  been  referred  to  as  laying  down  this  principle, 
but  there  is  no  case  exactly  like  the  present  one.  The  case  of  Hage- 
dorn  r.  Oliverson  is  a  strong  case  of  the  application  of  the  principle. 
It  was  thei'e  pointed  out  how  favorable  the  rule  was  to  the  principal, 
because  till  ratification  he  was  not  bound,  and  he  had  an  option  to  adopt 
or  not  to  adopt  what  had  been  done.  In  that  case  the  plaintiff  had 
effected  an  insurance  on  a  ship  in  which  another  person  was  interested, 
and  it  was  held  that  long  after  the  ship  had  been  lost  the  other  person 
might  adopt  the  act  of  the  plaintiff,  though  done  without  authorit}',  so 
as  to  enable  the  plaintiff  to  sue  upon  the  policy.  Again,  in  Ancona  v. 
Marks,  where  a  bill  was  indorsed  to  and  sued  on  in  the  name  of  Ancona, 
who  had  given  no  authority  for  that  purpose,  yet  it  was  held  that 
Ancona  could,  after  the  action  had  been  brought,  ratify  what  had  been 
done,  and  that  the  subsequent  ratification  was  equivalent  to  a  prior 
authority-  so  as  to  entitle  Ancona  to  sue  upon  the  bill.  It  was  said  b}'' 
Mr.  Brice,  that  in  that  case  there  was  a  previously  existing  liability  of 
the  defendant  towards  some  person  ;  but  the  liability  of  the  defendant 
to  Ancona  was  established  b}-  Ancona's  authorizing  and  ratifying  the 
act  of  the  agent,  and  a  previously  existing  liabilit}'  to  others  did  not 
affect  the  principle  laid  down. 

The  rule  as  to  ratification  is  of  course  subject  to  some  exceptions. 
An  estate  once  vested  cannot  be  divested,  nor  can  an  act  lawful  at  the 
time  of  its  performance  be  rendered  unlawful,  b}'  the  application  of  the 
doctrine  of  ratification.  The  case  of  Walter  o.  James,  L.  R.  6  Ex.  124, 
was  relied  on  b}-  the  appellant,  but  in  that  case  there  was  an  agreement 
between  the  assumed  agent  of  the  defendant  and  the  plaintiff  to  cancel 
what  had  been  done  before  anj' ratification  by  the  defendant;  in  the 
present  case  there  was  no  agreement  made  between  Scratchle}'  and  the 
defendant  that  what  had  been  done  b}-  Scratchley  should  be  considered 
as  null  and  void. 

The  case  of  Bird  v.  Brown,  4  Ex.  786,  which  was  also  relied  on  by 
the  appellant,  is  distinguishable  from  this  case.  There  it  was  held  that 
the  ratification  could  not  operate  to  divest  the  ownership  which  had 
previously  vested  in  the  purchaser  by  the  delivery  of  the  goods  before 
the  ratification  of  the  alleged  stoppage  in  transitu.  So  also  in  Lyell  v. 
Kennedy-,  18  Q.  B.  D.  796,  the  plaintiff,  who  represented  the  lawful 
heir,  desired,  after  the  defendant  Kennedy  had  acquired  a  title  to  the 
estate  b}-  means  of  the  Statute  of  Limitations,  and  after  the  title  of  the 
heir  was  gone,  to  ratif}'  the  act  of  Kennedy  as  to  the  receipt  of  rents, 
so  as  to  make  the  estate  vest  in  the  heir.  In  my  opinion  none  of  these 
cases  support  the  appellant's  contention. 


SECT.  III.]  BOLTON    PARTNERS   V.    LAMBERT.  1057 

I  think  the  proper  view  is  that  the  acceptance  by  Scratchle^'  did  con- 
stitute a  contract,  subject  to  its  being  shown  that  Scratchle^-  liad  author- 
ity to  bind  the  company.  If  that  were  not  shown  there  would  be 
no  contract  on  the  part  of  the  company,  but  when  and  as  soon  as 
authority  was  given  to  Scratchley  to  bind  the  company  the  authority- 
was  thrown  back  to  the  time  when  the  act  was  done  by  Scratchley,  and 
prevented  the  defendant  withdrawing  his  offer,  because  it  was  then  no 
longer  an  offer,  but  a  binding  contract. 

This  point  therefore  must  also  be  decided  against  the  appellant. 
Another  point  was  raised  as  to  misrepresentation,  but,  having  regard 
to  the  evidence,  in  my  opinion  that  has  not  been  made  out.  The  ap- 
peal therefoi'e  fails. 

LiNDLEY,  L.  J.  I  am  of  the  same  opinion.  Three  defences  are  set 
up.  The  first  is  that  the  two  letters  of  the  8th  of  December  and  the 
13th  of  December  did  not  amount  to  a  contract  at  all,  but  were  mere 
negotiations  ;  the  second  is,  that  the  contract,  if  any,  was  based  on  a 
misrepresentation  such  as  to  entitle  the  defendant  to  resist  specific  per- 
formance ;  and  the  third  is,  that  no  contract  was  made,  because  the 
offer  was  withdrawn  before  acceptance.  In  my  opinion  there  is  nothing 
in  the  first  or  second  points.  As  to  the  first  point,  it  is  impossible  to 
read  the  two  letters  otherwise  than  as  amounting  to  a  clear  offer  and  an 
acceptance  ;  and  as  to  the  second  point  there  is  no  proof  of  misrepre- 
sentation. The  third  point  is  altogether  a  different  one,  and  is  much 
more  difficult.  [His  lordship  referred  briefly  to  the  facts  of  the  case, 
and  continued]  :  — 

The  question  is  what  is  the  consequence  of  the  withdrawal  of  the 
offer  after  acceptance  by  the  assumed  agent  —  but  before  the  authority- 
of  the  agent  has  been  ratified?  Is  the  withdrawal  in  time?  It  is  said 
on  the  one  hand  that  the  ordinary  principle  of  law  applies,  viz.,  than  an 
offer  ma}'  be  withdrawn  before  acceptance.  That  proposition  is  of 
course  true.  But  the  question  is  —  acceptance  b}-  whom  ?  It  is  not  a 
question  whether  a  mere  offer  can  be  withdrawn,  but  the  question  is 
whether,  when  there  has  been  in  fact  an  acceptance  which  is  in  form 
an  acceptance  by  a  principal  through  his  agent,  though  the  person 
assuming  to  act  as  agent  has  not  then  been  so  authorized,  there  can  or 
cannot  be  a  withdrawal  of  the  offer  before  the  ratification  of  the  accept- 
ance? I  can  find  no  authority  in  the  books  to  warrant  the  contention 
that  an  offer  made,  and  in  fact  accepted  by  a  principal  through  an  agent 
or  otherwise,  can  be  withdrawn.  The  true  view  on  the  contrary  ap- 
pears to  be  that  the  doctrine  as  to  the  retrospective  action  of  ratification 
is  applicable. 

If  we  look  at  Mr.  Brice's  argument  closely  it  will  be  found  to  turn  on 
this  —  that  the  acceptance  was  a  nullity,  and  unless  we  are  prepared  to 
say  that  the  acceptance  of  the  agent  was  absolutely  a  nullity,  Mr.  Brice's 
contention  cannot  be  accepted.  That  the  acceptance  by  the  assumed 
agent  cannot  be  treated  as  going  for  nothing  is  apparent  from  the  case 
of  Walter  v.  James.     I  see  no  reason  to  take  this  case  out  of  the  appli- 

07 


1058  BOLTON    PAKTNERS    V.   LAMBERT.  [CHAP.  X. 

cation  of  the  general  principle  as  to  ratification.  The  appeal  therefore 
fails  on  all  points. 

Lopes,  L.  J.  An  important  point  is  raised  with  regard  to  the  with- 
drawal of  the  offer  before  ratification  in  this  case. 

If  there  had  been  no  withdrawal  of  the  offer  this  case  would  have  been 
simple.  The  ratification  by  the  plaintiffs  would  have  related  back  to 
the  time  of  the  acceptance  of  the  defendant's  offer  b}-  Scratchley,  and 
the  plaintiffs  would  have  adopted  a  contract  made  on  their  behalf 

It  is  said  that  there  was  no  contract  which  could  be  ratified,  l)ecause 
Scratchley  at  the  time  he  accepted  the  defendant's  offer  had  no  author- 
ity to  act  for  the  plaintiffs.  Directly'  Scratchle}-  on  behalf  and  in  the 
name  of  the  plaintiffs  accepted  the  defendant's  offer,  I  think  there  was 
a  contract  made  b^'  Scratchlej^  assuming  to  act  for  the  plaintiffs,  sub- 
ject to  proof  by  the  plaintiffs  that  Scratchle}'  had  that  authority. 

The  plaintiffs  subsequently  did  adopt  the  contract,  and  thereby  recog- 
nized the  authority  of  their  agent  Scratchle}'.  Directly  they  did  so  the 
doctrine  of  ratification  applied  and  gave  the  same  effect  to  the  contract 
made  by  Scratchley  as  it  would  have  had  if  Scratchley-  had  been  clothed 
with  a  precedent  authorit}'  to  make  it. 

If  Scratchley  had  acted  under  a  precedent  authorit}'  the  withdrawal 
of  the  offer  by  the  defendant  would  have  been  inoperative,  and  it  is 
equally  inoperative  where  the  plaintiffs  have  ratified  and  adopted  the 
contract  of  the  agent.  To  hold  otherwise  would  be  to  deprive  the  doc- 
trine of  ratification  of  its  I'etrospective  effect.  To  use  the  words  of 
Baron  Martin  in  Brook  v.  Hook,  L.  R.  6  Ex.  96,  the  ratification  would 
not  be  "  dragged  back  as  it  were,  and  made  equipollent  to  a  prior 
command." 

I  have  nothing  to  add  with  regard  to  the  other  points  raised.  I 
agree  with  what  has  been  said  on  those  points.  The  appeal  must  be 
disir>issed.^ 

1  See  In  re  Portuguese  Consolidated  Copper  Mines,  4.5  Ch.  D.  16  (C.  A.  1890), 
where,  in  the  Chancery  Division,  North,  J.,  commenting  on  the  principal  case, 
said :  "  It  conies  to  this,  that  if  an  offer  to  purchase  is  made  to  a  person  who 
professes  to  be  the  agent  for  a  principal,  but  who  has  no  authority  to  accept  it, 
the  person  making  the  offer  will  he  in  a  worse  position  as  regards  withdrawing  it 
than  if  it  had  been  made  to  the  principal ;  and  the  acceptance  of  the  unauthorized 
agent  in  the  meantime  will  bind  the  purchaser  to  his  principal,  but  will  not  in  any 
way  bind  the  principal  to  the  purchaser.  .  .  .  That  case  governs  the  present ;  and 
all  that  I  can  say  is  that  I  am  glad  to  have  such  an  autliority  to  guide  me ;  for 
I  am  afraid  I  should  have  gone  wrong  if  I  had  not  liad  the  assistance  of  that 
decision."  And  in  the  same  case  in  the  Court  of  Appeal,  Lindley,  L.  J,  said: 
"  Then  it  is  said  that  the  fact  that  the  contract  was  made  by  persons  without 
authority  makes  it  void.  .  .  .  That  was  the  very  point  urged  in  Bolton  Partners  v. 
Lambert;  but  the  court  repudiated  it,  and  said:  'No,  it  is  voidable  at  the  option 
of  the  principal ;  he  can  avoid  it  if  he  likes ;  he  can  elect  to  stand  upon  it  if  he 
likes.' " 

There  are  comments  on  the  principal  case  in  5  Law  Q.  Rev.  440 ;  Fry  on  Spe- 
cific Performance  (3d  ed.),  711-713;  9  Harv.  Law  Rev.  60.  —  Ed. 


INDEX. 


Admissions  of  agent,  447-468. 
Agency,  what  acts  can  be  done  through,  3.3-42. 
how  constituted,  42-78. 
And  see  Appointment;   Dklegation; 
Katification. 
how  terminated.     See  Termination. 
Agent,  who  can  be,  2-15. 

(See  Infancy,  Coverture,  Statute 
of  Frauds. 
what  acts  can  be  done  through,  3.3-42. 
how  appointed,  42-78. 

See    Appointment;     Delegation; 
Ratification. 
responsibility  of  principal  for,  79-468. 
See  Contracts,    Torts,    Misrepke- 

SENT.A.TION,  CRIMES,  ADMISSIONS. 

when  responsible  to  strangers,  469-547. 

See  Contracts,  Torts,  Sub-Agent. 
rights  and  liabilities  as  to  writings,  548- 
626. 

See  Writings. 
rights   and  liabilities  in  cases  of  undis- 
closed principal,  658-673,  723-740. 
See  Undisclosed  Principal 
rights  against  the  principal,  741-881. 
See  Compensation,  Indemnity,  Fel- 
lo\v-Serv.\nts,  Appliances,    Em- 
ployers'  Liability   Acts. 
duties  to  the  principal,  882-927. 
See  Obedience,  Loyalty,  Delegation. 
power  of  delegation,  928-952. 

See  Delegation. 
how  discharged,  953-985. 

See  Termination. 
how  affected  by  ratification,  986-1058. 
See  Ratification. 
Ambiguous    instructions,    responsibility   for, 

138-1.39,  155-157. 
American  Leading  Cases,  quoted,  21  n. 
Appliances,  suitable,  master's  dutj-  to  supply, 

824-881. 
Appointment  of  agent,  42-78. 
in  general,  42-51. 
to  execute  instrument  within  Statute  of 

Frauds,  52-58. 
to  execute  a  specialty,  58-78. 

See  Delegation,  Ratification. 
Arrest,  responsibility  for  causing,  243-248. 
Attorney  at  law,  5-6,  545-547. 
Auctioneer.  11-15,  535-540,  550-554,  561-564, 
658. 

Banks  as  collecting  agents,  9.36-939,  942-946. 

Bill  of  lading  for  goods  not  shipped,  368-373, 
418-425. 

Bills  and  notes.  See  Negotiable  Instru- 
ments. 


Blackstone's  Commentaries,  quoted,  93-95- 
Blanks,  tilling  of,  62-67,  70-78. 
Bracton,  quoted,  987,  n. 
Brokers,  powers  of,  268,  272-281. 

rights  and  liabilities  of,  as  to  third  parties 
See  Writings,  Undisclosed  Frin 

CIPAL. 

Coke  on  Littleton,  quoted,  3,  987,  n. 
Collect,  authority  to,  283-286,  322-324. 
duty  to,  339-342. 

delegation   of  emplovment   to,   929-931, 
936-939,  942-946. 
Compensation,  741,  n. 
Compulsory  seryant,  129-133,  808-810. 
Contractors,  independent,   responsibility  for, 
98-101,  i48-149,  206-213,  229-231. 
how  distinguished  from   servants,    152- 
15.5,  210-213,  240-242. 
Contracts  of  agent,  principal's  responsibility 
for,  253-357. 
unauthorized,  of  agent,  agent's  responsi- 
bility for,  494-.525. 
authorized,  of  agent,  agent's  responsibil- 
ity for,  if  principal  disclosed,  525-547. 
Corporation,  agent's  power  to  affix  seal  for, 

78.  n. 
Coverture,  9,  23-33. 

See  ^Iarried  Women. 
Crimes    of    agent,    principal's  responsibility 
for,  429-447. 

Death  as  terminating  agency,  957-962. 
Delegation. 

agent's  responsibility  to  third  person  for 
sub-agent's   negligence,   470-471,  479- 
482. 
agent's  authority  to  make,  928-952. 
Deviation  by  servant,  master's  responMbilitv 
for,  in  tort,  117-118,  122-125,  144-147,  196- 
19S,  204-206. 
Digest  quoted,  986,  n. 
Diligence.     See  Obedience. 
Disobedience   of  servant,    master's   responsi- 
bility for.  in  tort,  130-144,  234-237. 
See  Obp;dience. 
Doctor  and  Student,  quoted,  80-81. 

Emergency,    agent's    powers    in,  301-303, 

902,  n.,  951-9.52. 
EmploA'ers'  Liability  Acts,  880,  n. 

Factors'     liabilities.       See    Undisclosed 
Principal. 

Dowers,  253.  282-283,  627-628. 

rights,  887-889. 

statutes  as  to,  253,  n.,  355-35"^ 


1060 


INDEX. 


Factors.  —  continued. 

del  credere,  627-628,  675-677,  893-896. 
duties  as  to  delegation,  931-934. 
Fellow-servants,  773-823. 

/See  Appliances;  Employers' Liabil- 
ity Acts. 
Foreitjn  principal,  531-535,  542-545,  637-642, 

'692-698,  704-713. 
Fraud,  358-428. 

Illegal  transactions,  rif;hts  of  principal  and 
agent  inter  se  as  to,  741-744,  765-773,  902- 
906.  929. 
In(!eranity,  agent's  right  to,  741-773. 
Independent  contractors.    See  Contractors. 
Infancy  of  agent,  7-8. 

of  principal,  17-23,  514-517. 
as  affecting  the  fellow-servant  rule,  819- 
820. 
Insanity,  15-16,  967-971. 
Insurance  agents,   powers  of,   350-354,   509- 

514,  962-967. 
Insurance,  unauthorized,  ratification  of,  1037- 

1040,  1051-1053. 
Irrevocability.     See  Termination. 

Libel,  criminal,  429-432,  439-442. 

Limit,  effect  of  a  mathematical,  266-267,  311- 

316,  334-338. 
Liquors,  intoxicating,  principal's  liability  for 

agent's  sale  ot,  435-438,  442-447. 
Littleton's  Tenures  quoted,  979,  n. 
Loyalty,  agent's  duty  of,  904-927. 

Machinery.     See  Appliances. 
Malice.     See  Wilful  Act. 
Married  woman  as  agent,  9. 

as  principal,  23-33. 
Master  of  ship,  power  to  borrow,  303,  n. 
power  to  give  bill  of  lading,  368-373. 
applicability   of    fellow-servant   rule   to, 
868-871. " 
Misfeasance  and  non-feasance,  469-494,  882- 

904. 
Misrepresentation   and   fraud,  principal's  re- 
sponsibility for,  358-428. 
agent's  resnonsibiiitv  for,  488-489. 
Mistake,  respon'sibilitv  for,  138-139,  155-157, 
166-170, 191-196,  243-248. 

Negotiablf  paper,  agent's   power   to   deal 
with,  266-267,  269-272,  303-311,  319- 
322,  331-334,  349. 
unauthorized,  agent's  responsibility  for, 

494-499. 
parties  to,  601-626,  643-645,  647,  n.,  666,  n. 
See  Undisclosed  Principal. 
Nuisance,  criminal,  432-435. 

Obedience,  diligence,  and  skill,  agent's  duty 

of,  882-904. 
Over-issues  of  certificates,  387-411,  425-428, 

517-521. 

Partner's  authority  to  execute  specialties, 
78,  n. 

Perkins'  Profitable  Book,  quoted,  2,  18,  n. 

Power  coupled  with  interest.     See  Termina- 
tion. 

Principal,  who  can  be.  15-38. 

See  Insanity";  Infancy;  Coverture. 
responsibilities  and  rights  of,  as  to  third 
parties,  79-468,  548-657,  673-723. 


See  Torts;  Contracts;  Misrepre- 
sentation; Crimes;  Admissions  j 
Writings;  Specialties;  Negotia- 
ble Paper  ;  Undisclosed  Prin- 
cipal; Delegation;  Ratification. 
duties  to  the  agent,  741-881. 

See  Compensation  ;   Indemnity; 
Fellovv-Sekvants  ;     Appliances  ; 
Employers'  Liability'  Acts. 
rights  against  the  agent,  882-927. 
See  Obedience;  Loy'alty. 
Procuration,  form  and  effect  of  signature  hy, 
286-288,  324-328,  601-602. 

QuASi-contractual  liability  of  agent  to  third 

party,  540-542. 
Qui  facit  per  aliu7nj'acitj)er  se,  1-2. 

Ratification,  early  authorities  as  to,  986- 
988. 

requisites  and  results  of,  291-301,   989- 

1033. 
intervention  of  rights  preventing,  1034- 
1058. 
Reimbursement,  agent's  right  to,  741-773. 
Remuneration.  741,  n. 

Repairs.      See    Eellow-Servants  ;    Appli- 
ances; Employers'  Liability'  Acts. 
Representation,  implied,  of  authority,  496-502, 

504-506,  509-514. 
Revocation.     See  Termination. 

Sealed  instruments.     See  Specialties. 
Security,  power  given  as.    See  Termination 
Servant,  who  is,  105-117,  125-138,  180-183. 

See  Eellow-Servants. 
Set-off  and  similar  defences,  in  cases  of  un- 
disclosed principal,  673-740 
Sext,  quoted.  1,  n.,  833,  n.,  987,  n. 
Skill.     See  Obedience. 
Slave  as  agent,  3-4. 

Specialties,  appointment  to  execute,  58-78. 
parties  to,  583-GOO,  647,  n.,  666,  n. 
See  Undisclosed  Principal. 
ratification  of  execution  of,  992-993. 
Statute  of  Frauds,  extracts  from,  52-53. 
who  can  be  agents  under,  10-15. 
appointment   to   execute   an   instrument 

within.  52-58. 
form  of  signature  to  an  instrument  within, 
5.54-558,  645-647. 
Statute  of  Limitations,  37-39. 
Sub-agent,  agent's  responsibility  for,  470-471, 
479-482. 

principal's  responsibility  for.     See  Del- 
egation. 
responsibilit}'  of,  to  principal,  929-931. 

Termination  of  agencj'  by  revocation,  953- 
957. 

by  death,  957-962. 
by  other  events,  962-972. 
limitations  on  right  or  power  of,  973-985. 
Torts  of  agent,  principal's  responsibility  for, 
in  general,  95-252. 
misrepresentation  and  fraud,  principal'a 

responsibility  for,  358-428. 
agent's  responsibility  for,  469-494. 
ratification  of,  1030-1033. 

Undisclosed  principal,  rights  of,   627-636, 
673-691. 


INDEX. 


1061 


Undisclosed  Principal.  —  cnnlimied. 

liabilities  of,  3ai-334,  63G-657,  692-723. 
liabilities  of  agtnt,  658-664,  723-728. 
rights  of  agent,  664-673,  729-740. 
defences,  including  set-off,  673-740. 


VlCE-PKINCIPAL,  824-881. 

Volenti  nonjt  injuria,  831-833,  835-841, 868- 

871. 
Volunteer,  principal's  responsibility  for  acts 
of,  14!t-152. 
principal's  responsibility  to,  813-818. 


Wak,  902-967. 

Warranty,  authority  to  give,  316-322,  328- 
ool. 
implied,  of  authority,  504-509,  514-525, 
West's  Syniboleography,  quoted,  2. 
Wilful  act  of  agent,  principal's  responsibility 
for,  102-104,118-122,  162-165,  170-180, 
184-1'JO,  198-202,  218-224,  250-252. 
agent's  responsibility  for,  483-487,  489- 
491. 
Writings,  parties  to,  548-626.  629-630. 

^ee  Si'EciALTiEs;  Negotiable  Papeb; 
UNDISCLOSED  Principal. 


i 


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